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State v Land Transport Authority, Ex parte Fiji Taxi Union [2004] FJHC 279; HBJ0001.2004 (17 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW ACTION NO.: HBJ0001 OF 2004

BETWEEN:

THE STATE

v.

LAND TRANSPORT AUTHORITY
RESPONDENT

EX-PARTE:

FIJI TAXI UNION, SUVA CARRIER OPERATORS ASSOCIATION
and MILLENNIUM MINI BUSES TRANSPORT ASSOCIATION
APPLICANTS

Mr. H. Nagin - For the Applicants
Mr. J. Apted -For the Respondent

JUDGMENT

The Land Transport Act generated immense controversy during the period immediately preceding its promulgation as law. Its application has continued to provide a fair amount of litigation. This is a judicial review application. It was agreed by the parties that the application for leave in view of the urgency of the matter be treated as hearing of the substantive motion for judicial review to save time and so the court could give a decision as quickly as possible.

There are three applicants who seek leave to apply for judicial review of the two decisions of the Land Transport Authority:

(1) Decision under Regulation 23 of the Land Transport (Registration and Construction) Regulations 2000 to require owners of taxis, mini buses, licensed carriers, hire and rental cars to change registration plates to yellow (the Number Plate Decision); and

(2) Decision under Regulation 50 of Land Transport (Public Service Vehicles) Regulation 2000 to give twelve months notice to all owners of taxis, rental cars, hire cars, carriers and mini buses that it would not issue licences unless they complied with certain restriction as to age, engine capacity and air-conditioning (Age and Construction decision). The details of the two decisions were published by advertisement in the newspapers and the licence plate decision was also published in the Fiji Gazette.

The reliefs which the applicants are seeking are an order of certiorari to remove the said decisions of the Land Transport Authority (LTA) by which it purported to change the number plates and the age and construction requirement for public service vehicles and secondly a declaration that the Land Transport Authority has acted contrary to the rules of natural justice and/or unfairly, irrationally and arbitrarily and for abusing its discretion and/or exceeded its jurisdiction and/or acted in breach of legitimate expectations.

The grounds for relief are quite voluminous and I am not setting them down. The applicant’s case is that the decision is fundamentally flawed on a number of grounds. Any one of those grounds, if established, by any one of the three applicants, would be sufficient to render the authority’s decision unlawful. I shall deal with the points in the following order:

(a) Ultra vires in respect of Age and Construction Decision
(b) Ultra vires in respect of Number Plate Decision
(c) Unreasonableness/Irrationality
(d) Legitimate expectation
(e) Locus Standi/Capacity
(f) Non Disclosure.

ULTRA VIRES (AGE and CONSTRUCTION) - It is axiomatic that a public or a statutory authority which derives its existence and its powers from a statute cannot lawfully act outside those powers. Mr. Nagin in his submissions said that his principal argument was that the LTA exceeded its jurisdiction and by its decision has usurped the powers of the Minister. He submitted the powers of making regulations lay with the Minister and the LTA was only an enforcement agency under the scheme of Land Transport Act and various regulations made under it.

Mr. Apted submitted that the court has to carefully look at the Land Transport Act and see whether the Parliament has given the Minister powers to make regulations and whether the Minister has given authority to LTA to make regulations. He said the Parliament has given broad powers to LTA under sections 8 and 9 of the Act. He submitted the court has to consider the context in which the LTA operated. He submitted that the paramount interest is the public interest. The applicants are mere service providers.

Both counsels drew court’s attention to relevant sections of the Act and various regulations.

The LTA is established under section 6 of the Land Transport Act. Section 8 outlines the functions of the Authority. Its functions are to devise and carry out measures for improvement of passenger transport, to ensure provision for adequate passenger transport, to ensure road safety and to do anything incidental to those functions. Section 9 deals with powers of the Authority. It reads:

“9. – (1) The Authority may, subject to this Act and to any directions given to it by the Minister under section 10 –

(a) regulate and control all or any means of land transport;

(b) take such steps and to do all such acts, matters, and things as it may think necessary or desirable for effecting the co-ordination of road transport services, and the improvement of the means of, and facilities for, road transport;

(c) appoint in writing authorised officers for all or particular purposes of this Act;

(d) do all things necessary or convenient to be done for or in connection with, or incidental to, the exercise of its powers or the performance of its functions under this Act or any other Act.”

This section does not give the authority power to make regulations or anything that has the substantive effect of regulations. The key words are subject to this Act and any directions given by the Minister.

The power to make regulations is vested in the Minister by virtue of section 113 of the Act. It gives the wide spectrum of areas in respect of which “the Minister, after consultation with the authority, may make regulations necessary to give effect to the provisions of this Act, and in particular to prescribe ...”. It goes on to describe what those various areas are. The Minister has in the past made regulations and in particular Land Transport (Vehicles Registration and Construction) regulations 2000 – Legal Notice 59 of 2000 and Land Transport (Public Service Vehicles) regulations 2000 – Legal Notice 61 of 2000.

It is the Minister who has powers to make regulations “to prohibit or restrict the use of vehicles the construction or use of which is unsafe or annoying to other road users”. Section 113(2)(p) and “prescribe requirements affecting the safety, serviceability and comfort of public service vehicles, including requirements relating to vehicle age, engine size ...”. Section 113(4)(f). Under the Act these are matters that are within the powers of the Minister to regulate upon. Only the Minister can make regulations regarding these matters.

Mr. Apted submitted that the age and construction decision was taken by the LTA pursuant to Regulation 50 of the Land Transport (Public Service Vehicles) Regulations 2000 which provides:

“The Authority may give written notice of not less than –

(a) in the case of a road service vehicle – 24 months; or

(b) in the case of a public service vehicle other than a road service vehicle – 12 months,

to the owner of a public service vehicle that the construction, age, engine capacity or other condition of the vehicle is such that the authority will no longer permit the vehicle to be licensed as a public service vehicle.”

The age and construction decision covers four aspects – age, engine capacity, driver identity and air conditioning. The LTA in its affidavit sworn by Naisa Tuinaceva from paragraph 9 onwards has outlined the factors it took into account to promote safety, comfort and environmental factors in reaching its decision. It showed how reconditioned vehicles using re-conditioned or re-cycled parts are used in taxis and it is not possible to detect these during annual licensing times. The reasons given are extremely convincing. However the issue is can the Authority rely on Regulation 50 to do what it proposes to do in a general way. The LTA has not made a regulation but the effect of the published decision is that normally found in regulations. Regulation 50 deals with matters related to condition of a vehicle. I cannot see how drivers’ identity can be brought under this regulation. Secondly it deals with giving notice to an owner. It applies to those situations where the LTA, after examination conducted of its own initiative or as a result of a complaint by member of public, has found the vehicle for one reason or another unsuitable for public service. This regulation merely empowers LTA to give notice to an individual owner. It does not give the LTA powers to launch a general pre-emptive strike against all public service vehicles which is what the age and construction decision sets out to achieve.

Mr. Nagin submitted that the Minister by the Regulations has specified what he considered were adequate requirements for various types of vehicles – Regulation 51 for mini vans, Regulation 52 for omnibuses, Regulation 53 for carriers, regulation 54 for taxis and Regulation 55 for hire cars. He said none of the above five regulations imposes any condition as to age, air-conditioning or engine capacity except for hire cars where a minimum engine capacity of 800cc is laid.

I am of the view that the Minister through the regulations laid the criteria the various public service vehicles must meet before they are granted a licence. The applicants have complied with them and have been issued licences or permits. If the Minister feels that for reasons of safety or comfort of travelling public more stringent requirements are necessary, it is for him to make the necessary amendments. The LTA must try to convince the Minister as to the wisdom of the proposals. The LTA cannot by itself graft onto regulations some more onerous requirements. It does not have the powers to do. It can only do what the legislation has enabled it to do. The age and construction requirements as imposed are therefore ultra vires of LTA.

With the conclusion I have reached, I could rest the matters in relation to age and construction decision here. However in fairness to counsels I shall deal with other grounds they have raised in their submissions.

ULTRA VIRES (NUMBER PLATES) - Mr. Apted submitted that under Regulation 23(3) the LTA has the powers to change the plates. He submits that the Authority has referred to wrong subsection in the notice but that is not fatal. Mr. Nagin is not raising any objections to that as the intentions of LTA were quite clear and no one was misled. Regulation 23(3) reads:

“The Authority may change –

(a) the series, type, format or colour of number plates issued to all vehicles or to different licence classes and may require all vehicles with a superseded number plate to change to new number plate; and

(b) the type, format or colour of number plate labels issued to all vehicles or to different licence classes and may require all vehicles with a superseded label to change to the new label.”

Before the new number pates were issued, consultations were held with the applicants. This is conceded by counsel for the applicants. The new number plates would assist the enforcement agencies to easily detect the licensed operators from the unlicensed illegal ones. Being able to distinguish the licensed operators from the unlicensed has been a problem for the authorities so the special colour plates were introduced and these plates carry the permit number on the vehicle. The owners hoped to have the operating bases noted on the number plates but that was not done. The sum of $34.50 is not an excessive price to pay. The number plate decision is unassailable. It is clearly within the powers of LTA to make under the above regulation.

UNREASONABLENESS/IRRATIONALITY - The applicants submit that the 12-year age limit is totally unreasonable as vehicle conditions depend on a lot of factors. The LTA has stringent tests in place and vehicles can be screened for fitness. It also submits that smaller capacity engines are desirable for Fiji. Further the requirement for air-conditioning imposes unreasonable burden. They submit that similar restrictions are not imposed on buses.

I have closely looked at the affidavit of Naisa Tuinaceva. The LTA has to balance competing interests. It has to consider the interests of travelling public in general. That general public interest cannot be sacrificed for the interests of a few who may on an isolated occasion want to use a vintage taxi. Mr. Apted correctly pointed out that the applicants are service providers who cannot have things done all their way. If I may add they are like proprietors of restaurants who cannot conduct business the way they want to but have to consider health matters as well. Public safety and comfort is important in road transport. Are these unreasonable demands?

“In judicial review proceedings the standard of unreasonableness which will justify a court quashing a decision reached is very high” – Justice Scott in The State v. Public Service Appeal Board and Ministry of Education Ex-parte: Sharda Lal.

A decision is unreasonable in the Wednesbury sense if it is “so wrong that no reasonable person could sensibly take that view”. Simply because someone differs from the view taken by the Authority does not render Authority’s decision unreasonable as “two reasonable [persons] can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their right to be reasonable” – In re: W. (on Infant) 1971 A.C. 682 at 700D.

On the basis of affidavits filed I do not find the Authority’s decision outrageous or so absurd that no reasonable person could have reached it. The applicants may not like the decision and not agree with it but that alone does not make it unreasonable in the Wednesbury sense. So this ground does not succeed.

Having said that and fearing a second round of contest in court, I note that only once the matter was raised in passing with the applicants. The finances of applicants will be affected by such measures. Such requirements would need increased expenditure. As such in its wisdom and as a matter of fairness the LTA ought to hear and provide opportunity to the affected parties to be heard before a decision is made. The affected parties would involve both the applicants and the travelling public.

LEGITIMATE EXPECTATION - Mr. Nagin submitted that the taxi operators have operated on the basis of regulations made by the Minister. If LTA wanted changes in the past, it consulted them. However this time the LTA is changing regulations without consulting them. He submitted their legitimate expectations to be heard had been frustrated.

In public law field individuals may not have strictly enforceable rights but they may have legitimate expectation arising as a result of promise or a representation made by a public body or from a previous practice. The doctrine was succinctly expressed by Lord Fraser in Council of Civil Service Unions v. Minister for Civil Services 1985 A.C. 374 at 401.

“Legitimate, or reasonable expectations may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”

In the context of the present case, there is no indication in the affidavits of Rishi Ram of previous occasions when the applicants had been consulted over any changes to the regulations. I can find no evidence of past practice of consultation, so this ground fails.

LOCUS STANDI/CAPACITY - There are three applicants – the Fiji Taxi Union (FTU), Suva Carrier Operators Association (SCOA) and Millenium Mini Buses Transport Association (MMBTA). There is no dispute that the FTU has the locus to bring this action. The affidavit in support of Rishi Ram had asserted that all three were registered bodies. It turned out and is now accepted that SCOA is not a registered association. Mr. Nagin submitted that despite its non-registration status, it could still bring on action.

Mr. Apted submitted that since SCOA not an incorporated body of any kind, it cannot sue nor be sued in its own name. His argument is based sound legal principles and I accept them.

FIJI TAXI UNION AND MILLENNIUM MINI BUSES TRANSPORT ASSOCIATION:

These two organisations being registered associations can sue or be sued and have the capacity to bring legal proceedings under Section 6 of Industrial Associations Act Cap 95. However Mr. Apted submits that the powers of these two associations were limited by their constitutions and rules and they must act in accordance with their constitution and rules. The constitutions of these two bodies are annexed to the affidavit of Naisa Tuinaceva – annexure NT2 and NT3. The object of FTU – clause 4 of the constitution are to organise and unite “the owners of motor cars operating taxi services in Fiji” and to preserve, safeguard and promote their rights and interests.

In short, the FTU constitution is confined to promoting the welfare of the members of Fiji Taxi Union. By attempting to represent other organisations, it is guilty of acting beyond its powers and what it accuses LTA of doing. Similarly the MMBTA is by its constitution empowered to secure organisation of owners of mini buses and to promote, protect and maintain just and proper treatment of its members. Again its objects confine it to protect its own members. Additionally, as far as MMBTA is concerned Rishi Ram in his affidavit said “I am duly authorised” by SCOA and MMBTA. There is no evidence of that authority from MMBTA. Written authorisation could easily have been obtained from 1 Rodwell Road where the registered office of MMBTA is. It also has an Executive Council under its constitution who would have provided the written authorisation.

Was this assertion of authorisation made in the same vein as the assertions that SCOA was duly registered industrial association? The evidence in support of this assertion that he has been duly authorised by SCOA an unincorporated body and MMBTA is as empty as a bird’s nest in winter. I conclude that given the objects of the constitution of the FTU and lack of any proven authority from SCOA and MMBTA, the general secretary of FTU had no powers to represent these two bodies.

Mr. Apted addressed the court that if the court came to the aforesaid conclusion it should tailor its orders in such a way that the final orders only applied to FTU and others were excluded. I am of the view that such an order would serve no practical purpose as once I have held that the LTA acted ultra vires, the entire decision should be quashed rather than encouraging further applications from other affected parties.

NON DISCLOSURE - This leads me to the final point which Mr. Apted raised and that is material non disclosure. An ex-parte notice of motion for stay had been filed based on the affidavit of Rishi Ram who is the General Secretary of FTU representing as he alleged some 6000 members. In paragraph 4 of his affidavit he alleged that the notices were published “without prior consultation with the applicants”. However, it transpired from annexures to LTA’s affidavit that LTA had a series of meetings with FTU and in at least two meetings Rishi Ram was present and took active part in deliberations. This is more than material non disclosure. It was asserting the reverse of the truth.

The fact that the court at the end insisted on inter parte hearing does not assist the applicant because his intent was to obtain a stay ex-parte on the strength of such assertions.

In a situation less serious in nature than the present Justice Jitoko in an application before him in The State v. FTIB ex-parte: Telpac – HBJ0012D of 2002S expressed his views on material non disclosure as follows:

“By its very nature judicial review proceedings do no more than perform a supervisory role. It is therefore important that as far as possible, facts that are material to the issue before the court, even if unfavourable to the application, should be disclosed. This is particularly so at the leave stage where frank disclosure of all relevant facts known to the applicant can only help the court to act quickly ...”

Mr. Apted said that the non disclosure in the present case was so serious that the court should exercise its discretion and deny all relief. The above submission is understandable. However, this case is unlike a case where an applicant is the sole applicant and any refusal of relief would only affect the applicant personally. In the present case the applicant represents other members of taxi union who may have no knowledge of what the General Secretary had stated. I consider it would be grossly unfair of this court to punish those numerous others for the misdeed and shortcomings of their secretary.

CONCLUSION:

My final findings are that the Land Transport Authority’s decision under Regulation 50 of the Land Transport (Public Service Vehicles) Regulations 2000 not to licence any taxi, rental car, hire car, carrier or mini bus as a public service vehicle unless it complied with age, engine capacity, air conditioning and driver identity requirements is ultra vires and therefore unlawful. Certiorari shall therefore issue to quash the decision of LTA as published in the Fiji Times on 31st December 2003.

As far as the decision relating to number plates is concerned I hold that the LTA acted within its powers and in accordance with rules of natural justice. The application is therefore refused in respect of the number plates decision.

As each party has partly succeeded in their claims, each party is to bear its own costs.

[ Jiten Singh ]
JUDGE

At Suva
17th February 2004