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Prasad v Land Transport Authority [2020] FJHC 458; Misc Action 32 of 2015 (26 June 2020)

IN THE HIGH COURT 0F FIJI AT SUVA
APPELLATE JURISDICTION

Miscellaneous Action No. 32 of 2015

LTA Tribunal Appeals No. 18, 19, 20, 21, 22, 23, 24, 25, 29, 30 of 2005 and 22 and 23 of 2006

BETWEEN: RAJENDRA DEO PRASAD

APPLICLANT

A N D: LAND TRNSPORT AUTHORITY

1^ST RESPONDENT

A N D: PARMOD ENTERPRISES LIMITED

2^ND RESPONDENT

Counsel : Applicant: Mr. Pal. A

: 1^st Respondent: Mr. Stephens. G

2^nd Respondent: Mr. Kapadia. V
Date of Hearing : 29.05.2015
Date of Judgment : 26.06.2020

JUDGMENT

INTRODUCTION

1. This is an application by the Applicant for leave to appeal the decision of the Land Transport Appeals Tribunal (LTAT) dated 6.3.2015. This application sought leave to appeal against the award of costs by LTAT regarding appeals filed by Applicant in 2005 and 2006 and voluntarily discontinued them on 22.4.2009 and 24.4.2009, by Applicant. Respondent had sought costs. No order was made by LTAT at that time by LTAT till 6.3.2015. After hearing all the parties LTAT allowed discontinuance of number of appeals filed by the Applicant and also ordered a cost of $250 for each party for each appeal. Being aggrieved, leave is sought against order of the costs by LTAT. A party cannot file applications in court or tribunal and withdraw the same without after incurring costs to others. So cost follow the event. An award of cost of $250 for each party for each appeal cannot be considered excessive, and this application lacks merits to grant leave. There are no errors of law in proposed grounds of appeal.
   

FACTS

2. LTAT made following orders on 6.3.2015:
   
   1. the Appeal Nos. 18 of 2005, 19 of 2005, 20 of 2005, 21 of 2005, 22 of 2005, 23 of 2005, 24 of 2005, 25 of 2005, 29 of 2005, 30 of 2005, 22 of 2006, 23 of 2006 are discontinued;
      
   2. the Appellant to pay the First Respondent $250 for each appeal which is a total of $3,000 for all the 12 appeals discontinued as costs within 30 days:
      
   100. the Appellant to pay the Second Respondent $250 for each appeal which is a total of $3,000 for all the 12 appeals discontinued as costs within 30 clays.
        
3. Applicant filed originating summons seeking leave to appeal against said orders and also stay of execution, but at the hearing Applicant abandoned the order seeking stay as, he had paid the costs.
   
4. The Applicant filed number of Appeals in LTAT, and voluntarily sought to withdraw the same. According to affidavit in opposition by first Respondent, Applicant’s said appeals were frivolous and vexatious, as they were not geographically related to the Applicant’s licence to operate buses.
   
5. Applicant sought to withdrew and discontinued Tribunal Appeal Nos. 18, 19, 20, 21, 22, 23, 24, 25, 29 and 30 of 2005 and 22 and 23 of 2006 on or about 22.4.2006 and 24.4. 2009.
   
6. The Respondents sought costs and this was not determined till 6.3.2015. LTAT allowed both parties to make submissions on the issue of costs and made the order.
   
7. Applicant had filed proposed grounds of appeal in the affidavit in support and they are as follows;
   
   1. LTAT erred in law considering and relying on records of LTAT for the period between 10.4.2009 taken by Mr. Amani Bale after his appointment was revoked by the Revocation of Judicial Appointments Decree 2009 and the appointment of a new Tribunal pursuant to the Administration of Justice Decree 2009.
      
   2. LTAT erred in law on giving a determination on a hearing conducted by LTAT after the appointment of the presiding officer had been revoked by the Revocation of Judicial Appointments Decree 2009.
      
   100. LTAT erred in law in accepting extra judicial notes maintained by the former tribunal, Mr Amani Bale, that were kept outside of LTAT files and or registry for the relevant appeals and such notes were not subject to any judicial oversight, custody or security;
        
   4. LTAT erred in law in failing to disclose to the parties the contents of the notes received by LTAT from Mr. Amani Bale and or to make available the said notes to the parties for inspection and subsequent objections.
      
   5. LTAT erred in law making determination of a hearing not presided by determining officer.

ANALYSIS

8. All parties agree that the orders sought in the originating summons were against an interlocutory orders of LTAT hence needed leave of the court to appeal, in terms of Court of Appeal decision of Goundar v Minister for Health [2008] FJCA 40; ABU0075.2006S (9 July 2008)
   
9. In relation to leave to appeal the Federal Court of Australia in >Re Decor Corporation Pton Pty Limited & Anor v Dart Industries Incorporation 1991 FCA 655 stated:
   

The second is whether substantial incestice would result if leave were refused, supposing the den to be wrong. Inpininpinion, the sufficiency of the doubt in respect of the deci decision and the question of substantial injustice should not be isolated in ste compartments. They bear upon each other, so that the dege degree, of doubt which is sufficient in one case may be different from that required in another. Ultimately, discretion must be exercised on what may be a fine balancing of considerations." (emphasis mine)

10. Applicant had filed numerous appeals to LTAT and subsequently sought to withdraw the appeals in issue to this application. Respondents had sought costs but, this was not dealt by person who presided LTAT at that time or subsequent appointee. So when this issue of costs was dealt a fresh hearing was conducted by LTAT and a written ruling was delivered with reasons. The cost awarded was $250 for an appeal for a party.
    
11. Applicant is appealing this award having complied said order. What is the cost that Applicant want to pay for binging parties before LTAT represented by legal counsel not clear.
    
12. In Edmund Mv Bank of k of Hawaii &Ors [2000]1 FLR 2300 the Fiji Court of Appeal stated as follows: (Pathik . J)

"Whilst I am inclined to agree that Air Canada's case appears to be distinguishable, I must bear in mind that I am ng with an application/or leave to appeal and not with the the merits of an appeal. It will therefore not be appropriate for me to delve into the merits of the case by looking into the correctness or otherwise of the Order intended to be appealed against. However, if prima facie the intended appeal is patently unmeritorious or there are clearly no arguable points requiring decision then it would be proper for me to take these matters into consideration before deciding whether to grant leave or not."

13. The application seeking leave is unmeritorious. Applicant is stating irrelevant facts which contained in the proposed grounds of appeal. What I needed to consider is the written ruling of LTAT dated 6.3.2015, and any error of law therein.
    
14. In Fiji Court of Appeal decision of Proline Boating Companympany Ltd v Director of Lands [2013] FJCA 39; Miction 39A.2011 decided on ( on (17 May 2013)(unreported) Calanchini AP (as his lordship then was) held,
    

'[14]. The Appellant relies on 25 grounds of appeal. To a large extent they are repetitive and overlapping. It is certainly not necessary to delve into the grounds of appeal in considering whether leave to appeal should be granted. This is even more so the case when the appeal procedure has been commenced within the time prescribed by the Rules. Leave to appeal is required because the decision refusing to grant leave to apply for judicial review is an interlocutory decision. Generally the Courts are reluctant to interfere with interlocutory decisions. However leave willore rere readily granted when legal rights as distinct from matters of practice and procedure are involved and some injustice may be caused: See In re the Wf F B Gi B Gilbert (decease946) [1946] NSWStRp 24; 46 S R NSW 318 at 323 323 and Kelton Investments Limited and Tappoo Limited –v- Civil Aviation Authority of Fiji and Anotunreported ABU 34 of 1995 delivered 18 July 1995). The ques question to be resolved in this application is should the Applicant be given leave to appeal' (emphasis added)

Native Land Trust Board v Narawa [2004] FJSC 7; CBV0007.2002S ( decided on 21 May 2004)(unrep), the Supreme Court of Fiji held,(at paragraph 32)

'......The interlocurlocutory orders to which it applies may cover a range of cases from those only concerned with matters of procedure and pre-trial management to those which may have a significant impact on the scope and outcome of the proceedings. Some decisions, while techny interlocutoocutory, may be to all intents and purposes final. In such cases "a prima facie case exists for granting leave to appeal" – Ex partenell&[1936] HCA 67; [1936] HCA 67; (1936) 56 CLR 221 at 275; Décor Corponation Pty Ltd v Dart Industries Inc [1991] FCA 655;>; (1991) 33 FCR 397< at 400. When a proceeding is dismissed for want of a reasonable cause of action the decision may be treated as interlocutory – Hunt v Allied Bakeries [1956] 1 WLR 1326; cf Mickelberg v 6PR Southern Cross Radio Pty Ltd [2001] WASC 267; Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WA2] WAR 148. But leave will ly be grae granted in such a case where there is any doubt about the decision at first instance – Little v Victoria [1998] 4 VR 596 at 01. See generally the dihe discussion in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572;>; ef="http://www.paclii.olii.org/cgi-bin/LawCite?cit=%282000%104%20FCR%20564?stem=&synonsynonyms=&query=%22leave%20to%20appeal%22%20and%20%22deepthi%22%20and%20%22lta%22%20and%20%22zakreen%22&noxt=1" title="View LawCiteReiteRecord">(2000) [2000] FCA 1572; 104 FCR 564 at 583-584.(emphasis added)