| Fiji Islands - The State v Transport Control Board, Ex parte Waiqele Buses Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW NO. HBJ 0005 OF 1999S
THE STATE
v.
TRANSPORT CONTROL BOARD
Respondent
ex parte
WAIQELE BUSES LIMITED
Applicant
H.K. Nagin for the Applicant
I.V. Tuberi for the Respondent
R. Prakash for the Interested Party, Latchman Buses Ltd
JUDGMENT
The Applicant (Waiqele) pursuant to leave granted on 6 August 1999 moves for Judicial Review of a decision of the Respondent (TCB)
published on 11 December 1998, the effect of which was to award the Interested Party (Latchman) the right to operate an express omnibus
service on the Labasa/Savusavu/Labasa route.
The following affidavits were filed:
(i) Sushil Chand, Director of Waiqele, 27 January 1999;
(ii) Gianeshwar Chandra Naidu, Secretary of the TCB, 25 May 1999;
(iii) Rajendra Deo Prasad, Managing Director of Latchman, 23 June 1999; and
(iv) Sushil Chand, 6 October 1999.
Counsel also filed written submissions:
(i) Waiqele, 29 October 1999;
(ii) TCB, 17 November 1999; and
(iii) Latchman, 23 November 1999.
All three submissions were of high quality and I am grateful for them.
This is not the first time that this dispute has come before the Court. On 6 September 1997 Pathik J granted leave to the same Applicant,
Waiqele to move for Judicial Review of a 2 April 1997 decision of the TCB to grant Latchman the right to run an express service on
the Labasa/Savusavu/Labasa route. On 8 September 1998 the decision was quashed. A copy of the Judgment is exhibit B to Mr. Chand’s
first affidavit. As appears from the Judgment the principal reason for quashing the decision was that before awarding the route to
Latchman the TCB held a private meeting with Latchman. The meeting was followed by the award in favour of Latchman which then took
the TCB out to lunch. These facts, in the view of the Court, gave rise to a “strong case of bias”.
Bias was not the only ground argued before the Court. It was also said that Waiqele had a legitimate expectation that it would be
awarded the licence in view of the fact that it already operated a stage service over the same route.
On the day that the Judgment was delivered Waiqele itself applied to operate an express service over the route. The following day
Latchman filed a competing application. On 4 December the TCB met to consider the rival applications. While, however, the subject
matter was the same as that before the TCB on 2 April 1997 the Board was entirely differently constituted. It had both a different
chairman and different members (see paragraphs 13 and 14 of Rajendra Deo Prasad’s affidavit). Both Waiqele and Latchman were represented
by Counsel. An extract of a precis of the competing applications, their supporters and objectors is Exhibit C to Mr. Chand’s first
affidavit. The minutes of the actual public meeting held on 4 December is exhibit A to Mr. Naidu’s affidavit.
The minutes of the meeting (which were not challenged) disclose the various facts, matters and arguments placed by both Counsel and
members of the public before the TCB. They also disclose that after receiving the submissions the TCB then considered them in private
(page 19 et seq). On pages 21 and 22 the principal matters considered by the TCB are set out. On page 21 the TCB found in favour
of
Latchman and against Waiqele. The reasons for the decision are recorded as follows:
“The need for express service was established. The general travelling public in their representation made in writing on the day of
the meeting overwhelmingly supported Latchman Buses and in particular on the basis of their past experience with Company when it
operated the route”. (sic).
As appears from the O 53 statement, from the affidavit evidence and from the written submissions the main grounds of complaint against
the TCB are:
(i) that the TCB considered the rival September 1998 applications rather than the rival applications which led to the quashed decision
of April 1997;
(ii) that the TCB, in breach of Section 65 (1) (a) of the Traffic Act (Cap 176-the Act) did not summarily reject Latchman’s application
on the ground that the route was already adequately serviced;
(iii) that the TCB, in breach of Section 66 (1) of the Act made an award which was likely to result in the speed limit being broken by Latchman’s
buses;
(iv) that the TCB, in breach of Section 66 (2) failed adequately to evaluate Latchman’s financial stability;
(v) that the proceedings before the TCB were unfairly conducted;
(vi) that the TCB breached Waiqele’s legitimate expectations;
(vii) that the TCB was biased against Waiqele;
(viii) that the decision reached by the TCB was unreasonable;
(ix) that the TCB gave no or no adequate reasons for its decision.
As to (i) the parties and the disputed subject matter were the same. Only the dates of the applications were different. Waiqele did
not suggest that the course adopted by the TCB had in anyway prejudiced it. I can find no merit in this submission.
As to (ii) if the route was already adequately serviced then Waiqele’s application for an express service on the route should also
have been summarily rejected. This is not an appeal against the merits of the TCB’s various decisions and in deciding not to reject
the applications for an express route the TCB was exercising precisely the discretion vested in it by the Act. It is not for this
Court in Judicial Review proceedings to substitute its own discretion for that of the TCB (see e.g. cases cited in State v. TCB ex parte Dee Cees Bus Service Ltd - HBJ 22/1998S). This submission fails.
As to (iii) no evidence was placed before the TCB and on the affidavit evidence (paragraph 12 of Waiqele’s affidavit, paragraph 6
of the TCB’s affidavit and paragraph 10 of Latchman’s affidavit) the question was disputed. The time estimated by Waiqele was only
10 minutes longer than that estimated by Latchman over the entire Labasa/Savusavu run. I am not satisfied that it has been shown
that the TCB erred in not accepting that Waiqele had made its case on this point.
As to (iv) it is clear from pages 10 and 11 of the minutes that Waiqele was given every opportunity to place its case fully before
the TCB. As appears from page 21 the TCB accepted that Latchman was financially stable. This is not an appeal against the merits
of that finding which in my view was not obviously irrational or unreasonable. This submission also fails.
As to (v) it has already been noted that the proceedings were open to the public, were attended by Counsel and were minuted. It was
not suggested that the minutes were defective. Having perused them I can find nothing to suggest that the proceedings were conducted
unfairly. On the contrary, I am of the view that they were handled impeccably.
As to (vi) this argument was rejected by Pathik J and it is surprising to find it being advanced again. I respectfully agree with
Pathik J’s reasons.
As to (vii) the allegation of bias, I have more than once commented that this allegation is far too freely made in
Fiji. As already pointed out the TCB Board, the decision of which it is sought to impugn, was quite differently constituted from that,
the decision of which was quashed by Pathik J. There is nothing to support the allegation of bias except Mr. Chand’s evaluation of
the circumstances set out in paragraph 15 of his affidavit. In my opinion the allegation of bias ought not to have been made. Counsel
should remember that a client’s instructions are on their own insufficient to warrant the advancement of such a claim. Bias should
only be propounded if Counsel is satisfied that proper legal grounds exist for it (see e.g. Arab Monetary Fund v. Hashim [1994] Admin L.R. 348.)
As to (viii) and (ix) the conclusions reached by the TCB and their reasons for reaching them, particularly when taken together with
the principal matters considered by them and already referred to, seem to me to be perfectly reasonable, adequate and acceptable.
I find no grounds for disturbing them.
In all the circumstances the motion for Judicial Review fails and is dismissed.
M.D. Scott
Judge
24 March 00
HBJ0005J.99S
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