Gilharry (d/b/a/ Gilharry's Bus Line) v Transport Board et Al
| Jurisdiction | Belize |
| Judge | Sosa, P.,Morrison, J.A.,Mendes, J.A. |
| Judgment Date | 20 July 2012 |
| Neutral Citation | BZ 2012 CA 10 |
| Docket Number | Civil Appeal 32 of 2011 |
| Court | Court of Appeal (Belize) |
| Date | 20 July 2012 |
Court of Appeal
Sosa, P.; Morrison, J.A.; Mendes, J.A.
Civil Appeal 32 of 2011
Fred Lumor SC for the appellant.
Nigel Hawke and Herbert Panton for the respondents.
Civil practice and procedure - Judicial review proceedings — Service of notice of intended proceedings on public authority.
On 26 March 2012 the Court allowed the appeal of the appellant and ordered that (a) the order of Legall, J. be set aside, (b) the appellant's application for judicial review be proceeded with by accelerated hearing and (c) the appellant have his costs, to be taxed, if not agreed. I concur in the reasons for judgment given in the judgment of Morrison, J.A., which I have read in draft.
This appeal raises an important question of law and procedure: does section 3(1) of the Public Authorities Protection Act (‘the PAP Act’), which requires service of notice of intended proceedings on a public authority at least one month before commencement of the proceedings, apply to applications for judicial review, pursuant to Part 56 of the Supreme Court ( Civil Procedure) Rules, 2005 (‘the CPR’)?
By his order made on 9 August 2011, on a preliminary point taken by the respondents to this appeal, Legall, J. held that the section applied, with the result that the appellant's application for judicial review of a decision by the respondents to revoke certain Road Service Permits (‘the permits’) previously issued to the him was dismissed with costs.
The appeal from this decision was heard on 26 March 2012, at the end of which the court announced that the appeal would be allowed, for reasons to be given at a later date, and the learned judge's order set aside. The court ordered that the appellant's application for judicial review should be proceeded with in the Supreme Court by way of an accelerated hearing. The court also ordered that the appellant should have the costs of the appeal, to be agreed or taxed. These are my reasons for concurring in that decision.
The appellant is the operator of a number of public passenger omnibuses, under permits issued by the first named respondent, pursuant to the Motor Vehicles and Road Traffic Regulations.
The first named respondent (‘the Board’) is an autonomous body, established under the provisions of the Motor Vehicles and Road Traffic Act, Cap. 230, as amended by Act No. 41 of 2002, with statutory responsibility for the general administration of the transport sector in Belize. In particular, the Board sanctions the issue of road service permits and bus schedules to operators of buses on the highways of Belize.
The second named respondent is the secretary of the Board and has specific responsibility for the administration and management of motor vehicles and road traffic regulations within Belize.
The third named respondent is the minister of government statutorily authorised to set up the Board, with responsibility to formulate the policies to be implemented by the Board and for the development of regulations relating to public road transport.
The fourth named respondent is the representative of the Government of Belize, and was joined in these proceedings pursuant to the provisions of section 42(5) of the Constitution of Belize (‘the Constitution’).
In the light of the fact that the application for judicial review is still to be heard, no more than an outline of the facts is necessary. The appellant is a resident of Corozal Town. He has operated bus services between Santa Elena Border to Belize City, via Corozal Town (‘the main route’), under permit from the Board, for many years. The appellant has also operated bus services between Corozal Town and Santa Elena Border and points in between (‘the village runs’), again under permit, for many years. For these purposes, the appellant employs approximately 54 persons and owns and operates 18 omnibuses (on the main route) and 10 vans (on the village runs).
The permits issued by the Board to the appellant have from time to time been renewed, the most recent renewal for the main route having been in 2006 and, for the village runs, in 2007. The permits in respect of both routes expired in 2008, but the appellant continued to operate the routes under the existing terms and conditions.
In or around 2008, the Board decided to formulate a new policy for the regulation of the public passenger transport system. The Board indicated that this was a response to a number of accidents on the nation's highways and complaints received about the roadworthiness of some buses. The new policy did not meet with the universal approval of existing bus operators and this resulted in litigation against the Board on behalf of some operators (Claim No. 728 of 2008). On December 2008, the Board was in fact restrained by interlocutory injunction from taking any steps to alter the status quo, pending the outcome of the litigation. Matters remained in abeyance until 27 January 2011, when the Supreme Court dismissed the action and discharged the injunction.
Shortly thereafter, the Board renewed its efforts to alter the existing system and its proposals were again met with protests from bus operators, including the appellant. Despite high level meetings between the parties, there was no resolution to the impasse, which attracted national attention, including at one point the intervention of the Honourable Prime Minister of Belize. On 15 June 2011, the appellant was advised, by way of a telephone call from an official of the Board, of the “new schedules or routes that have been given to Gilharry Bus Line”, with effect from 19 June 2011.
The appellant contends that this decision effectively (a) revoked his permits for the village runs; and (b) revoked his permits in respect of the main route and sought to replace them with new routes or schedules which are off peak and not remunerative. The Board maintains that it acted within its statutory mandate and that, in any event, it could not and did not revoke any of the appellant's permits, since those permits had already expired and were therefore no longer in existence.
On 20 June 2011, the appellant applied for permission to make a claim for judicial review of the Board's decision. On 21 June 2011, after an inter partes hearing before Legall, J., an order was made (by consent), granting permission to the appellant as prayed. The appellant was ordered to file and serve the application on or before 30 June 2011 and the matter was set for hearing on 21 July 2011.
By fixed date claim form dated 30 June 2011, the appellant claimed the following reliefs:
“1. A declaration that the defendants acted ultra vires when they made the decision on 15th May, 2011 to revoke the Road Service Permits issued to the claimant instead of reviewing the claimant's existing Road Service Permits. The decision is therefore void and a nullity.
2. A declaration that the defendant [sic] abused their powers when they purported to make the decision not to renew the existing road service permits of the claimant and instead sought to impose arbitrarily and illegally new road service permits on the claimant. The decision is therefore void and a nullity.
3. A declaration that the defendants breached or frustrated the legitimate expectation of the claimant unlawfully by reneging on the representations made to the claimant by the Transport Board to continue to operate on the existing road service permits until the Transport Board was in a position to renew the permits. The decision is therefore void and a nullity.
4. An order that the decision made on the 15th of June, 2011 is unfair and contrary to the basis [sic] rules of natural justice and therefore void and a nullity.
5. An order of certiorari to remove into the Supreme Court for purposes of being quashed the decision made by the defendants on 15th June, 2011 whereby the defendants sought to revoke and not renew the Motor Vehicles and Road Traffic Road Service Permits issued to the claimants in 2006.
6. Damages.
7. Costs.
8. Such further or other orders as may be just.”
Affidavits having been filed on both sides, the matter duly came on for hearing, again before Legall, J., on 21 July 2011. On that date, the respondents, by way of a preliminary point taken in limine, objected to the hearing of the judicial review application, on the ground that the appellant had not given one month's notice in writing to the respondents of his intention to make the application, contrary to section 3(1) of the PAP Act, which provides as follows:
“3.-(1) No writ shall be sued out against, nor a copy of any process be served upon any public authority or anything done in the exercise of his office, until one month after notice in writing has been delivered to him, or left at his usual place of abode by the party who intends to sue out such writ or process, or by his attorney or agent, in which notice shall be clearly and explicitly contained the cause of the action, the name and place of abode of the person who is to bring the action, and the name and place of abode of the attorney or agent.
(2) No evidence of any cause of action shall be produced except of such as is contained in such notice, and no verdict shall be given for the plaintiff unless he proves on the trial that such notice was given, and in default of such proof the defendant shall receive in such action a verdict and costs.”
As already indicated, on 9 August 2011 Legall, J. upheld the preliminary objection and dismissed the application for judicial review. In his written judgment dated 10 August 2011, the learned judge, after referring to section 3 of the PAP Act, observed that there was no dispute that the appellant had not complied with the...
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