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R v Transport Control Board, ex parte Pacific Transport Ltd [1993] FJHC 66; Hbj0007j.1989s (16 August 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 7 OF 1989

R.

v.

TRANSPORT CONTROL BOARD

EX-PARTE PACIFIC TRANSPORT LTD.

Mr. F.S. Lateef for the Applicant
Mr. G.P. Shankar for the 1st and 2nd Respondents
Mr. H. Nagin for the 3rd Respondent

JUDGMENT

This is an application for judicial review by Pacific Transport Ltd. (hereafter referred to as "Pacific") of the decision of the Transport Control Board (hereafter referred to as 'the TCB') made on the 3rd of November, 1988 in which it granted Road Service Licences to City Transport Limited; K.R. Latchan Bros. Ltd. and Sunbeam Transport Ltd. (hereafter referred to individually as "City", "Latchan" and "Sunbeam" and collectively as 'the respondents').

The Road Service Licences granted were as follows:

(1) RSL 12/9/62 in favour of "City" for a Suva/Lautoka/Suva via Queens Road then Kings Road Express Service;

(2) RSL 12/10/66 in favour of "Latchan" for a Suva/Lautoka/Suva Circular Express Service via Kings then Queens Road; and

(3) RSL 12/10/85 in favour of "Sunbeam" for a Lautoka/Suva/Lautoka Circular Express Service;

It is obvious from the description of the routes covered by the Road Service Licences that they were for circular route services around Viti Levu.

A similar road service licence was earlier granted by the TCB to "Latchan" in 1983 and was the subject matter of protracted Court proceedings which went through the Supreme Court, (Civil Action No. 499 of 1983) the Fiji Court of Appeal (Civil Appeal Nos. 45, 51, 57 and 61 of 1983) and finally the Privy Council (Appeal No. 25 of 1984).

Suffice it to say that the final outcome of the court proceedings was in the judgment of the Fiji Court of Appeal, at p.27:

"... that the 5 applications, of City, Sunbeam, Pacific, Victory and Latchan have not been disposed of and the same are referred back to the Board for hearing and determination."

The re-hearing and determination of the applications however were not undertaken until the 31st of October 1988 when under the chairmanship of the late Mr. V. Parmanandam the TCB sat and began to hear the applications and objections for the round-the-island circular routes.

The grounds upon which "Pacific" seeks relief are set out in the statement filed in support of the application as follows:

"(a) That the Transport Control Board under the chairmanship of Mr. Parmanandam was biased in favour of City Transport and acted in bad faith;

(b) That the Transport Control Board failed to comply with the provisions of the Traffic Act Section 66;

(c) That the Transport Control Board breached the rules of natural justice in that it made substantial alteration to the timetable of K.R. Latchan Bros. without giving the applicant any opportunity to make representations;

(d) That the Transport Control Board erred when it heard and decided upon Sunbeam Transport Ltd.'s application for RSL No.12/10/85 without hearing (sic) other similar applications lodged prior in time to Sunbeams; and

(e) That the Transport Control Board exceeded its jurisdiction."

I propose in this judgment to deal with each of the grounds in turn under the following convenient subject headings: BIAS; SECTION 66 TRAFFIC ACT; ALTERATION OF TIME TABLES; and SUNBEAM RSL 12/10/85.

However before doing so there is an objection of a preliminary nature that is raised in the submissions of the respondents that the TCB granted 3 separate and distinct Road Service Licences albeit on the same day to 3 separate and distinct applicants and that the present application which seeks to challenge all 3 Road Service Licences in the single application is improper and ought not to be allowed to proceed in its present form.

This very matter was raised in an interlocutory application seeking to set aside the grant of leave to issue the present proceedings and upon which Byrne J. ruled as follows:

"The fourth ground is that joinder of causes and parties without prior leave of this Court is bad. This ground is based on Order 15, rule 4. Under this Rule, joinder of parties is allowed as a right subject to the discretionary power under rule 5 which is not relevant here where (1) the right to relief in each case arises out of the same transaction or series of transactions and (2) where there is some common question of law and fact. In the present case, apart from the allegations of bias against Mr. Parmanandam, it seems to me that the common question of law and fact that may arise in the application for review is the feasibility and desirability of having more than one or more operators conducting a round-the-island bus service in Viti Levu. In my view it also seems that the rights to relief sought by the parties arise out of the same transaction, namely the decision of the Board to grant licences to City Transport Limited, K.R. Latchan Bros. Limited, and Sunbeam Transport Limited and not to the Applicant.

I am not satisfied that such joinder is likely to prejudice embarrass and delay the fair disposal of this matter."

In complaining of misjoinder both Counsels for the respondents have asserted that the ruling of Byrne J. was given on an "interlocutory application" and was therefore inconclusive and not binding at the substantive hearing of the application for judicial review. Both Counsels have also merely asserted that the ruling is "not correct".

Counsel for the applicant on the other hand submits that a ruling on the issue has already been given by a Judge of the High Court and there is no power in another judge to set aside, vary or over-rule that decision.

In this latter regard whilst there is power in the High Court Rules under Order 32 r.5(3) to re-hear a summons earlier proceeded with and determined in the absence of a party (in this case "Sunbeam") such a re-hearing is dependant upon the order not being perfected. Here however the order of Byrne J. was perfected by "Latchan" on the 11th of January 1990 and that puts an end to the matter in this Court.

Even however if I were wrong on that score I have not the slightest doubt, having regard to the very wide provisions under Order 53 rules 5(2) and 9(1) as to service of the proceedings and hearing of persons in an application for judicial review, that the ruling of Byrne J. was with respect entirely correct in the particular circumstances of this case in which the respondents are not true "defendants" as such but rather are "proper person(s) to be heard" on the application.

I am fortified in my view by the observations of the Fiji Court of Appeal in Civil Appeal Nos. 45, 51, 57 and 61 (op. cit) where it said concerning the nature and procedure under Order 53 at p. 31:

"Where the original proceedings were more of an inter partes nature, then when leave is given other interested persons should also be made parties and served. At the hearing the matter will become more of a lis inter partes, ... "

Furthermore in Civil Action 499 of 1983 (op. cit) where there was a joint application by 2 applicants seeking to quash 2 separate and different Road Service Licences granted on different dates and in respect of different operators albeit by the same board, Kermode J. notwithstanding his observation at p. 2 (that):

"Strictly speaking there should have been two separate applications which could have been heard together."

nevertheless continued to hear the application and granted the reliefs sought.

I turn next to deal with the various heads or grounds of complaint as earlier enumerated.

BIAS

The basis of this complaint against the TCB is conveniently summarised in the submissions of Counsel for the applicant and is principally directed at the then chairman of the TCB Mr. V. Parmanandam wherein it is said (amongst other lesser claims):

"a. ... he represented City Transport at the meeting of the TCB in Ba (in 1983) in respect of circular trip RSL 12/9/62;

2. b. ... he is a former director and shareholder of City Transport Ltd;
   

100. He was Counsel for City Transport and continued to act for City whilst chairman; and
     

4. ... that he was a friend of Mr. Maan Singh a Director of City."
   

Counsel for City and Latchan however points to the affidavits of Mr. V. Parmanandam and Maan Singh the Managing Director of City as indicating that Mr. Parmanandam had no pecuniary or financial interest in City at the time nor had he appeared as its lawyer for some time prior to the relevant hearings of the TCB in October 1988.

On the other hand Counsel for Sunbeam with some justification complains that the joinder of Sunbeam in the present proceedings has emboldened and enabled the applicant to improperly assert that the bias (if any) of the chairman of the TCB (which on the evidence would have been solely in favour of City) could be extended to "taint" its decision in favour of either Sunbeam or Latchan against which no specific allegation of bias has been made.

I must confess that it is a little difficult to understand the submission of Counsel for the applicant where he says at p.18 para. 2:

"We submit that Latchan was granted the licence to appease them as they had objected to V. Parmanandam sitting on the Board. The whole decision has to be quashed. We submit this Court cannot say that bias was only in favour of City and not Latchan and Sunbeam. This whole decision in respect of circular trip granted is now questionable."

With all due regard to the submission there is nothing of any weight in the record of the TCB's proceedings to suggest that the grant of a road service licence to Latchan was in any way, shape or form an "appeasement" nor is there a shred of evidence to support any suggestion of favouritism on the part of the Chairman or the TCB towards Sunbeam.

In Civil Appeal Nos. 45, 51 57 and 61 of 1983 the Fiji Court of Appeal in reversing the lower court's finding of bias on the basis of a jocular remark of the then chairman of the TCB, said at p.19:

"Now the test in these matters is well understood - would the circumstances cause a reasonable onlooker to think there was a real likelihood of bias? - i.e. not proof of the same but reasonable suspicion."

and later at p.20:

"Other lesser matters were raised - that a Board member had prior to his appointment worked for a solicitor who did work for Mr. Latchan - that when the Board and Latchan were preparing to contest the Motion for Review there was a rather unusual degree of collaboration between them in preparing affidavits - and finally that the Board's Secretary is said to be Mr. Latchan's brother-in-law.

These are matters of little substance and in our view fall far short of the degree of proof required to establish such a grave allegation."

Having carefully considered Counsels comprehensive submissions on this aspect which as to the law appears in large measure to have been taken from the judgment of Mahon J. (as he then was) in Anderson v. Auckland City Council (1978) 1 N.Z.L.R. 657 at pp. 680 to 689 and, more particularly, the evidence disclosed in the opposing affidavits I am driven to the firm view that the applicant's claim of "bias" cannot be sustained nor has it been established to such a degree as to cause a reasonable onlooker to think there was a real likelihood of bias on the part of the TCB in granting the road service licences to City and moreso, to Latchan and Sunbeam.

I am of course mindful that the chairman is only one member of a board of 5 and the decision to grant the road service licences was a board decision in each case. Equally a "reasonable onlooker" would have been aware that the chairman a qualified and respected lawyer would as a matter of training be more capable than most of bringing an open and impartial mind to bear upon the competing applications before him.

It is my considered view based on the evidence in this case that Mr. V. Parmanandam does not fall within any of the prohibited categories of persons described by Lord Denning M.R. when he said in Metropolitan Properties v. Lannon (1968) 1 Q.B. 577 at p.:

"No man can be an advocate for or against a party in one proceeding, and at the same time sit as a Judge of that party in another proceeding. Everyone would agree that a ... barrister or solicitor (when he sits ad hoc as a member of a tribunal) should not sit on a case to which a near relative or close friend is a party. So also a barrister or solicitor should not sit on a case to which one of his clients is a party. Nor on a case where he is already acting against one of the parties. Inevitably people would think he would be biased."

Then there is the question of "waiver" which has been raised in the submissions of both Counsels for the respondents and which arises in the following context - On the 30th of October 1988 when the TCB met to consider the applications for the circular route the unconfirmed minutes of the TCB meeting records:

"The chairman read the letter dated 25/10/88 from G.P. Shankar & Co. and announced his decision to continue to chair the meeting. This also applied to Mr. Anil Tikaram as well."

The letter in question sought the disqualification of Mr. V. Parmanandam on the ground that on an earlier occasion he had acted for City on the same application and had also made submissions against Latchan's competing application. Objection was also taken in the letter to Mr. Anil Tikaram on the ground that he had acted as solicitors for Pacific in several matters before the TCB.

There is no record in the minutes of the TCB of 30th October 1988 and the 1st of November 1988 that, either Pacific or its Counsel, who was present and participated throughout both day's proceedings, ever took any objection to Mr. V. Parmanandam sitting in or chairing the meeting as they could have done.

In particular, Mr. V. Parmanandam deposed in para.8 of his affidavit:

"... that when the meeting commenced on the 30th of October 1988 he drew the attention of the meeting to the letter of K.R. Latchan Bros. Limited and advised the meeting that before (he) would make a decision on the objection he would invite all Counsel and parties present to see if any other Counsel or party had a similar objection. After ascertaining that there was no other objections to either (him) or Mr. Anil Tikaram, (he) and Mr. Tikaram decided that they would carry on participating in the meeting. To avoid any doubt Counsel appearing for the applicant herein did not make any objections to any member of the Board who sat on that day despite the 'invitation' to so do."

In the circumstances both Counsels for the respondents forcefully submit that the applicant must be taken to have waived any objection(s) that it might have had against Mr. V. Parmanandam sitting or continuing to sit on the board and its active participation in the proceedings of the board thereafter must be taken as acquiescence on its part.

The learned authors of Wade on Administrative Law 6th edtn describes the principle in the following passage at p. 482ff:

"The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory. The Court normally insists that the objection shall be taken as soon as the party prejudiced knows the facts which entitle him to object. If, after he or his advisors know of the disqualification they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged." (on that ground)

Needless to say Counsel for the applicant faced with the submission sought to rely on his lack of knowledge that Mr. V. Parmanandam was a former director and shareholder of City and the fact that the objection of Latchan was over-ruled.

As to the first I cannot accept the proposition that a tribunal's former (not existing) pecuniary interests in a party before it which it had discharged 10 years previously is not so remote as to be considered a material disqualifying factor.

The second is an interpretation which Counsel for the applicant chose to place on the chairman's ruling on Latchan's objection. In doing so however Counsel had effectively denied the chairman the opportunity of considering and yielding to any objection that the applicant might have made and doubtless would have left the chairman with the wrong impression that only one of the 5 applicants before him objected to his sitting.

In the circumstances even if this Court was satisfied that there was some merit in the applicant's complaint of bias (which it is not) nevertheless certiorari being a discretionary remedy, this Court would have no hesitation in refusing to exercise its discretion in favour of the applicant on this particular complaint.

SECTION 66 TRAFFIC ACT (Cap. 176)

In this regard the applicant complains that the TCB in granting the road service licences to the respondents failed to consider the provisions of Section 66(2) of the Traffic Act which provides inter alia:

"(2) In exercising its discretion to grant or refuse a road service licence in respect of any route ... the Board shall have regard to the following matters:

(a) the extent to which the proposed service is necessary or desirable in the public interest;

(b) the extent to which the needs of the area through which the proposed route will pass are already met;

(c) the desirability of encouraging the provision of adequate and efficient services and eliminating unnecessary and unremunerative services; and

(f) any evidence and representation received by it at any public sitting held in accordance with the provisions of Section 65 and any ... representations made by ... any persons carrying on transport services of any kind likely to be affected."

In particular, and it is not entirely clear, but Counsel complains that there was no evidence of any "need" for the circular services, whatsmore Sunbeam (which was granted a road service licence) had conceded that there was no "need" as the proposed route was more than adequately serviced by the existing operators which included Sunbeam and Pacific who had merely applied for the licences to "protect their own interests".

In this latter regard, although this is perhaps an inappropriate occasion to deal with the matter in any detail, I should say that I have some reservations about the validity of a "competing" application that is lodged with the declared intention or purpose of "protecting the applicants own interests" or of the correctness of treating an application very similar to but not the same as "the proposed service" as an original application.

In Civil Appeal No. 45, 51, 57 and 61 of 1983 (op. cit) the Fiji Court of Appeal adverted to this matter in the context of 'time limits' when it said at p. 13:

"The Board was thereby treating them as separate applications and it was perhaps entitled to do so. However we feel this was an erroneous step. The Board should not have advertised what were competing applications as if they were original applications ..."

and later:

"... this had the undesirable effect of repeatedly extending the time which is contrary to the apparent intention of the subsection and should be avoided in future."

Be that as it may the record of the TCB's proceedings reveals that apart from the fact of the applications themselves and written representations against them, the TCB also heard over 2 days numerous detailed objections from other operators opposing the various applications. It also had before it 10 statutory declarations (not before the Court) and the oral evidence of Ratu William Toganivalu and a representative from a church group in support of a 'round-the-island' service. On the other hand the applicant's Counsel also produced a lengthy written submission to the TCB seeking to establish the absence of a "need" for the service.

It is noteworthy that the Fiji Court of Appeal in Civil Appeal No. 45, 51, 57 and 61 of 1983 (op. cit) in discussing the nature of the evidence which a tribunal such as the TCB might consider observed at p. 15:

"We are concerned with the activities of an administrative tribunal - a licensing board set up to control an economic activity so that affairs in the community are regularised in a rational way. It has often been said that the material to be taken into account by such a body includes material from its own specialised knowledge, which comes to its members by experience and from the continued monitoring of the relevant public activity. More particularly is this so when the tribunal is exercising jurisdiction within a local area, has records of previous applications, and can be taken to be knowledgeable about prevailing conditions."

and more specifically at p.16:

"The Transport Control Board is set up to advise the Minister on traffic and transport matters, and for this purpose will continually be aware of current conditions; in considering the grant or refusal of licences it can use its existing knowledge of public transport services available, as against the demand for bus transport - in this instance around Queen's and King's Roads - an enquiry which must comprehend the majority of its licensing work on Viti Levu."

In the circumstances I cannot accept the applicant's submission that the TCB had no evidence before it of a "need" for a circular service nor in my view ought the absence or presence of any particular item of evidence be singled out as more important or persuasive than any/other. The material before the TCB (including its previous minutes, collective knowledge and experience) are matters which the TCB was statutorily bound to have regard to and for which the TCB was eminently suited to evaluate and determine.

As was said by Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner ex-parte Moore (1965) 1 Q.B. 456 at p.488:

"The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based on material which tends to show the existence or non-existence of facts relevant to the issue to be determined ... but he may take into account any material which, as a matter of reason, has some probative value ... If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own views for his."

Further the grant of the 3 road service licences in this instance is neither "ridiculous" or unreasonable having regard to the material differences in the routes and times approved under each road service licence.

In my view it has not been shown that the TCB failed to have regard to the provisions of Section 66(2) of the Traffic Act (Cap. 176).

TIMETABLE ALTERATIONS

Section 65(5) of the Traffic Act (Cap. 176) empowers the TCB in granting a road service licence (to):

"... make such variations in the route, time table and fare-table applied for as to it seem desirable:

Provided that -

(b) the Board shall not make any substantial variation in the timetable unless the existing licensees on the route applied for have had an opportunity of making representations in respect of the proposed alterations."

In this regard Counsel for Pacific complains that the TCB altered the timetables of City and Latchan without giving Pacific (an existing licensee on the route applied for) an opportunity of making representations in respect of the proposed timetable alterations.

It is unfortunate that the original applications of "City", "Latchan" and "Sunbeam" were not annexed to the affidavit of the Secretary of the TCB as they should have been, but there can be no doubting from the material available that some alterations were made to their respective timetables by the TCB when granting the road service licences.

The TCB resolutions incorporating the timetable alterations is recorded in the minutes as follows:

"1. That City Transport Limited's application be approved with timetable amendments and surcharge.

Timetable amendment for City Transport Ltd. be such that there is no stopping at Nanukuloa and stopping at Lautoka be shortened. Therefore RSL 12/9/62 for City Transport Limited is approved.

4.12/10/66 Application by K.R. Latchan Brothers Ltd. be approved pertaining to Kings Road with appropriate amendment of time and amendment of surcharge. Surcharge amendment for both applications 12/9/62 and 12/10/66 be increased from 20 cents as applied for to 50 cents."

Counsel for City and Latchan however whilst conceding that the TCB made alterations to the timetables nevertheless submits that the alterations were minor in nature and in any event Pacific's written and oral objections to the applications of City and Latchan before the TCB, fully canvassed how its existing services on the proposed routes would be adversely affected by the timetables proposed by both City and Latchan.

In particular Counsel points out that a comparative timetable of Pacific's existing services and Latchan's proposed service was presented to the TCB along with Counsel's 12 page written submission which in part foreshadowed the need for the TCB to make alterations to the proposed timetables for the circular route services.

Further the minutes of the TCB meeting of 1st November 1988 records (in the course of hearing City's application):

"Mr. Lateef for Pacific strongly objected firstly, the times were defective. Secondly, if allowed, Pacific Transport's existing times will be affected. Mr. Lateef asked for reports from Transport Officers."

In Akbar Buses Limited v. TCB Civil Appeal No. 9 of 1984 the Fiji Court of Appeal said of the ambit of Section 65(5) of the Traffic Act at p. 10:

"... it is, in our view, clear that Section 65(5)(b), which requires existing licensees on the route, to be given an opportunity of making representations applies in respect of licensees who operate an existing service on any part of the route applied for."

Clearly then Pacific as a licensed operator on the Queens Road between Lautoka and Suva was prima facie entitled to make representations.

The subsection however unlike other provisions in the Traffic Act does not expressly set out the form which any representations may take or the procedure or circumstances under which representations will be received or entertained by the TCB.

Such matters of detail are undoubtedly left to the TCB to determine as it sees fit in the circumstances of any particular case and indeed no rigid format or procedure can or ought to be laid down by this Court as to how best the TCB ought to discharge its duty under the above proviso.

What is clear however is that where the proposed alteration to the timetable is not considered "substantial" by the TCB then there is no duty on it to provide existing licensees the opportunity to make representations.

In this regard the affidavit of Mr. V. Parmanandam deposes:

"... that the Board took into account the provisions of Section 65 subsection 5 in making the amendments to the timetable as alleged holding the view that the amendments were minor and that since the trips granted were circular as opposed to semi-circular the bulk of the loading would take place before each individual has arrived at Lautoka and that any difference in the loading of semi-circular operators would be negligible."

Counsel for City and Latchan also submitted that the applicant had made full representations to the TCB showing how it would be adversely affected "from early morning till late night" and that the proviso to Section 65(5)(b) envisaged a situation where an "existing licensee" had not objected at all to the original application or had not objected because the proposed timetable did not adversely affect its existing licence and, needless to say Pacific falls into neither category. In the words of Counsel for 'City' and 'Latchan':

"... the applicant Pacific Transport Limited has objected to grant at anytime on the route. The case for Pacific Transport Limited was that there was no need for additional bus and NOT that there was no need for bus at the time applied for by the applicant."

I am satisfied in the particular circumstances of this case that there has been substantial compliance on the part of the TCB with the requirement to provide the applicant the opportunity of making representations on the altered timetable. Further it has not been shown that the TCB erred in forming the view which it did that the alterations made to the timetables (which it undoubtedly had power to make) were not "minor" or in the words of the section, were "substantial".

In reaching this conclusion I have borne in mind that in granting an opposed application for a road service licence the TCB is required to undertake a fairly comprehensive advertising, consultative and hearing procedure in public and to have regard to the various matters set out in Section 66(2) of the Traffic Act.

In my view if every alteration to a proposed timetable was to become the subject matter of a separate and distinct hearing from that envisaged in the "substantive hearings" for the grant of a road service licence then Parliament would not have qualified the alteration as it has done. Furthermore such an interpretation could give rise to a wasteful and time consuming duplicity of hearings where much of the evidence placed before the TCB at the "substantive hearings" is likely to be rehashed to the frustration of the successful applicant and the TCB.

As was succinctly observed by Lord Pearson in Pearlberg v. Varty (Inspector of Taxes) (1972) 2 ALL E.R. 6 when he said at p. 17:

"Fairness, however, does not necessarily mean a plurality of hearings or representations and counter-representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed."

There is no merit in this ground of complaint which is accordingly dismissed.

SUNBEAM RSL 12/10/85

The factual circumstances that give rise to the applicants complaint against the grant of the above road service licence is conveniently summarised in the affidavit of the Manager of Pacific where he deposes:

"27. K.R. Latchan Limited had made a further application to the Board for circular trips around Viti Levu originating from Lautoka. This application ... was lodged on 8th April 1983 and advertised on 19th April 1983 being numbered RSL 12/10/81. This led to Sunbeam Transport Limited lodging a competing application for similar trips ... originating at Lautoka on 26th April 1983 their application ... 12/10/85 which was advertised on 3rd May 1983. An application was also lodged by the Applicant for similar services on 27th April 1983 their application ... 12/10/86 ... was advertised on 5th May 1983. City also lodged an application on 16th June 1983 (RSL 12/10/93). On 31st October 1988 the Board heard the application of Sunbeam and the applications of the Applicant, City and K.R. Latchan were deferred."

and in the written submissions of Counsel for Pacific where he submits:

"... the Board erred when it heard and decided Sunbeam's RSL 12/10/85 without hearing other similar applications lodged with it and prior to it."

Counsel for 'Sunbeam' on the other hand drew the Court's attention to the fact that all the applications for the Lautoka, Suva, Lautoka circular route came up for hearing before the TCB on the same day (30th October 1988) but the applications of 'Latchan' and 'Pacific' were deferred at the request of their respective Counsels whilst 'Sunbeam's' went ahead at the insistence of its Counsel.

What transpired is recorded at p. 28ff of the TCB minutes of the 1st November 1988 as follows:

"RSL 12/10/81 - K.R. Latchan Brothers Limited (Pages 76-85 of precis)

Mr. G.P. Shankar requested that the application be deferred.

Mr. Lateef said that if it was deferred then all the rest of the applications be deferred.

Mr. Nagin said he wanted to get through all the applications at this meeting.

Mr. Shankar said that he had just realised that all his witnesses had gone.

The Chairman said that both items A & B were listed for yesterdays (31/10/88) hearing. Mr. Shankar said the Board should give decision on item A first and then proceed with B. It was a waste of time to listen and not to get any decision.

The Chairman said the Board had not got all the full members and they had volunteered members.

Mr. Arjun said he wanted his application to be heard and decision given.

The Chairman asked the other Counsels if they wished to carry on. The Chairman then deferred the above application to come with other applications listed."

Sunbeam's application was later heard by the TCB and minutes of the hearing records:

"RSL 12/10/85 - SUNBEAM TRANSPORT LIMITED (Pages 92-99 of precis refers)

Mr. Nagin for applicant said that it was a double circular application Suva/Kings and Suva/Queens Road - two trips.

The Chairman said that it was a competing application and asked who was the original applicant.

Mr. Nagin said that it was a competing application and there was no need for circular trips to be granted.

The Chairman informed Mr. Nagin that he should adjourn the application with K.R. Latchan's application."

The note of objectors present at the above hearing clearly records that Counsel for the applicant was, amongst others, present and objected to Sunbeam's application.

The relevant precis of written objections received by the TCB against Sunbeam's applications also includes at pp. 95 & 96 an objection by Pacific dated 9.5.83 in which it analyses in some detail (as to timing) how its existing services on the Queens Road between Lautoka and Suva would be "seriously affected" and "rendered uneconomical" if the application was granted.

On 3rd November 1988 the TCB approved Sunbeam's application RSL 12/10/85. The minutes also records under ITEM B: that the applications of Latchan and Pacific had been "DEFERRED".

From the above it is clear that the TCB was aware that Sunbeam's application was not the first application for the proposed route and that there were several other applications for the same route. It would have also been aware of Pacific's objection to the application and the specific grounds for it. Further, that the deferment of 'Latchan's' and 'Pacific's' applications was requested or assented to by Counsel appearing for those applicants.

I accept that it would have been prudent for the TCB to have heard all competing applications together and where this was not possible then at the very least it ought to have completed hearing all competing applications before rendering a decision.

Its failure to do either has, not surprisingly, resulted in Pacific's complaint that the result of its competing application was a fait accompli or as Counsel rhetorically asks: "What is the fate of the adjourned applications? What chance is there of getting a licence? I submit none."

With all due regard however to the submissions of Counsel for Pacific, Section 65 of the Traffic Act is clear in its requirement that the TCB must first advertise the application and receive any written objections or competing applications and, where the same are received then a sitting must be held "... for the purpose of receiving in public evidence for or against any application ..." There is no requirement that all competing applications shall be heard together although undoubtedly that would appear to be a convenient and recommended course to adopt when dealing with competing applications.

But in failing to do so and in rendering it's decision before all competing applications had been heard can it be said that the TCB has exceeded its jurisdiction? or failed to comply with the Traffic Act? I do not think so.

In my view the mere fact that the TCB had not heard the competing applications does not necessarily mean that it would not be aware of their existence (which it was) or would have ignored the written objections which were placed before it and specifically drawn to its attention at the public hearings or indeed the provisions of Section 66(2) which it is bound to "have regard to" in the exercise of its discretion to grant or refuse a road service licence.

No complaint has been raised under any of those heads nor is there any evidence to suggest that the TCB had failed to take into account relevant matters or had taken into account irrelevant considerations. Nor does the applicant complain that it was not heard as an objector as it clearly was.

What in effect the applicant is seeking to do is to add by implication a further requirement into the procedure provided by Section 65, that in the event that there are other competing applications the TCB should not only hear the applications in order of lodgement but also hear all the applications in their entirety before making a decision. I am unable to accede to such a requirement.

For my part whilst I accept that when Sunbeam's application was granted there was not then before the TCB any other application to be considered but nevertheless I am not prepared to predict, much less pre-empt, what the decision of the TCB would be in the event that the applicant should seek to pursue its outstanding application.

Needless to say I reject the suggestion that in granting Sunbeam's application the TCB has thereby somehow fettered its discretion to entertain and grant a deferred competing application at some later time.

The applicant having failed to establish any of its grounds for seeking judicial review the application is accordingly dismissed with costs to the respondents to be taxed if not agreed.

For the sake of completeness I should point out that in the light of the above it has not been necessary for me to consider the various grounds for refusing relief enumerated in Order 53 r.4(1) of the High Court Rules 1988 and which were generally raised in the submissions of both Counsels for the respondents.

(D.V. Fatiaki)
JUDGE

At Suva
16th August, 1993.

HBCJ0007J.89S