THE STATEn>
v.
TRANSPORT CONTROL BOARD
Respondent
Ex parte
DEE CEES BUS SERVICE LIMITED/p> CENTRAL TRANSPORT CO. LIMITED
ISLAND BUSES LIMITED
GEORGE TRANSPORT LIMITED
Applicants
M. Raza for the Applicants
I.V. Tuberi for the Respondent
R. Prakash for the Interested Party, Nadera Transport Ltd
JUDGMENT
On 9 July 1998 the Respondent (TCB) granted the Interested Party (Nadera) a 10 yeaence to operate a new bus sbus service to and from
Waidranu Street and the Suva Bus Stand. The 4 Applicants are bus companies which already operated to a greater or lesser degree over
parts of the route awarded to Nadera.
These proceedings for Judiciview were commenced on 23 September 1998 but the papers were not filed until 30 June 1999 s999 shortly
before I proceeded on long leave. For these reasons delivery of this judgement has been delayed beyond the Court’s normal time frame.
The fing affidavits were filed:
(i) &nbp; &nnbsp; &nbssp;&nsp; &nbp; ;&nbpp; &nspan>Dewan Chand &and & Others, for the Applicants, filed 23 September 1998;
(ii) &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; Gane Chardra naidu,aidu, for the TCB, swer, filed 1 December 1998;
(iii) &nnsp;&&nsp;;&nspp;&nssp;&nsp; SubavinRra for Nade Nadera, filed 15 December 1998;
: 1"> (iv) &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; Ravishwar Char Chandra, for the Applicants, filed 17 march 1999.
The following written submissions were also filed:
(i) &bsp; ; &nbbp;&nnbsp;&nsp; &nbp; &nbssp; &&nsp;;&nsp; Mpan>Mr. Raza forAphe Applicants, 9 November 1998;
(ii) ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;& Mr. Raza, foa, for the Applicants, 26 March 1999;
(iii) &nbbsp; &nsp; &nbbp;&nnbp;& &nb/span>Mr. Tub. Tuberi fori for the Respondent, 8 April 1999;
(iv) p;&nssp; p; &nbp; &nbp; Mr. sh, aor Nadera,dera, 30 June 1999.
&nb"> span> The grounds of complaint advanced by the Applicants are seven-fold and are set out in paragraphs (b) (i) to (vii) on page 3 of the
Order 53 Statement. Taking into account the provisions of Section 66 (2) of the Traffic Act (Cap 176) the grounds may conveniently
be reformulated as follows:
ass=MsoNormal stal style="text-align: justify; text-indent: -36.55pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (i)ot;"> &nnsp;&&nsp;;&nspp;&nssp;&nsp; the TCB wasediagainagainst the Applicants;
(ii) p;&nssp; p; &nbp; &nbp; an>ip failed to have properroper regard for the facts and matters included in Section 66(2);
and
(iii) & &nsp; &nbssp; ited to d to give pive proper reasons for its den.
These grounds will be taken e order (iii), (i) and (ii).
The reasons for the TCB’s decision are to be found in two places. The first is aer dated 2 September 1998 w998 which is copied as
Exhibit I to Mr. Naidu’s affidavit. The second is a copy of the minutes of the private deliberations of the TCB following the public
meeting held at Valelevu on 9 July 1998, a copy of which is to be found on pages 27 to 30 of Exhibit A to Mr. Naidu’s affidavit.
The same exhibit contains the record of the public proceedings, together with a related application by another bus company, at pages
10 to 23.
The matter of giving reasons for decisions requently been considered by the Courts not only overseas beas but also in Fiji. In the State v. TCB ex parte S. Nair Transport (HBJ 0020/96S) I explained that the Fiji Court of Appeal in Akbar Buses v. TCB (FCA Reps 84/40) had recommended the TCB to give at least brief reasons for all its decision. In State v. TCB ex parte Peni Co Ltd. (HBJ 22/94S) I cited R v Lancashire C.C. ex parte Huddleston [1986] 2 All ER 941 in support of the proposition that where an administrative tribunal had failed even to give brief reasons for its decision it should
always furnish an explanation for its decision when filing its affidavit in answer in the Judicial Review proceedings. The decision
in Akbar has again been re-emphasised by the Fiji Court of Appeal in Pacific Transport v. Khan (ABU 21/1996). Obviously, the better course is to deliver reasons at the time that the decision is delivered; this may have the consequence
of avoiding Judicial Review proceedings altogether.
In my view the two sources of explanation offered by the TCB for its den together perfectly adequadequately explain the way in which
the TCB approached the matter before it. This ground fails.
The second allegation in one of bias and Mr. Raza’s submission under this head may be found on the 4th page of his written submission. He suggested that the TCB conducted the proceedings unfairly and in support of this submission he
pointed to paragraph 44 of the Applicant’s supporting affidavit filed on 23 September 1998. Paragraph 44 has 9 sub-paragraphs; the
first 7 consist of a number of allegations of misconduct, all traversed by Mr. Naidu, which are said to have occurred during 1996,
1997 and April 1998, that is, well before the proceedings and decision of the TCB which is now sought to impugn. There is no evidence
to support the 8th while the 9th is a repetition of ground (iii) shortly to be dealt with.
An allegation of bias is serious, amounting at it does to an allegation of dereliction of duty at least and dishonesty at most. In
my experience such allegations are far too frequently made in Fiji and only seldom meet with success. The test for bias was explained
by the Fiji Court of Appeal in Latchan Brothers Ltd v. Sunbeam Transport (FCA Reps 84/261) (and see also Ganga Ram v. Reg FCA Reps 84/193) as follows:
“would the circumstances cause a reasonanlooker to think there was was a real likelihood of bias, that is, not proof of same but
a reasonable suspicion?”
The final ground amounts to a general allegation that the TCB failed properly or adequately to discharge the duties imposed on it
by Section 66 (2) of the Act. In answer to this submission Mr. Prakash suggested that the Court only had a very limited role in reviewing
the exercise of an administrative discretion. He cited Minister of Aboriginal Affairs v. Peko-Wallsend Ltd. 162 CLR 24 at 40 where the following words of Mason J are to be found:
“It is not the function of the Court to substitute its own decision for that of the the administrator by exercising a discretion
which the legislature has vested in the administrator. Its role is to set limits to the exercise of the discretion and a decision
made within those limits cannot be impugned.”
With respect, I entirely agree. It has been said that thence of a discretion is that:
“on the same evidence two different minds might reach widefferent decisions without eout either being appealable.” (Bellenden v. Satterthwaite
[1948] 1 All ER 343, 345)
and though the appellate Court might have acted differently this does not mean that the lower ower court acted wrongly (see R v. Cambridge C.C. ex parte Hagi (1980) 144 JPR 145 and see also Norbis v. Norbis [1986] HCA 17; (1986) 60 ALJR 335).
In the present case thetes of the proceedings both public and private clearly reveal the principal facts and mattematters taken into
account by the TCB including, as pointed out by Mr. Tuberi, the addresses of Counsel for each of the present Applicants who were
present at the proceedings. As against this, the Applicants’ case largely consists of vague and unsupported allegations which I find
to be quite unpersuasive.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> There have been some notorious failures by the TCB in the past. In my Judgment this is not one of them. On the contrary, I am of the
opinion that the TCB discharged its statutory duties in an exemplary fashion. The motion fails and is dismissed.
p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> M.D. Scott
Judge
10 January 2000 1"> HBJ0022J.98S
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