Redline Coaches Pty Ltd v Hobart Coaches Pty Ltd
[1990] TASSC 148
•29 October 1990
Serial No B71/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Redline Coaches Pty Ltd v Hobart Coaches Pty Ltd [1990] TASSC 148; B71/1990
PARTIES: REDLINE COACHES PTY LTD
trading as TASMANIAN REDLINE COACHES
v
HOBART COACHES PTY LTD
TRANSPORT COMMISSION
FILE NO/S: M300/1990
DELIVERED ON: 29 October 1990
JUDGMENT OF: Crawford J
Judgment Number: B71/1990
Number of paragraphs: 30
Serial No B71/1990
List "B"
File No M300/1990
REDLINE COACHES PTY LTD trading as TASMANIAN REDLINE COACHES
v HOBART COACHES PTY LTD & THE TRANSPORT COMMISSION
REASONS FOR JUDGMENT CRAWFORD J
29 October 1990
The first respondent (hereafter called "Hobart Coaches") applied to the second respondent (hereafter called "the Commission") for the issue of four coach licences under s15 of the Traffic Act 1925, which would permit it to operate a bus service between Hobart, Launceston, Devonport and Burnie. The applicant (hereafter called "Redline") lodged an objection. It held coach licences for those routes. Although not obliged to do so, the Commission decided to hold a hearing with respect to the application, such a hearing being provided for in reg10 of the Traffic (Public Vehicles) Regulations 1967. The hearing lasted twenty seven hours during which substantial evidence was apparently received. Written submissions were then made by Hobart Coaches and Redline. On or about 30 July 1990 the Commission determined the application in favour of Hobart Coaches and decided to issue four coach licences subject to certain conditions. Reasons for the decision, occupying a little more than three pages, were published.
On 1 August 1990 Redline lodged a notice of appeal to the Public Vehicles Licensing Appeal Tribunal. Section 30B of the Traffic Act 1925 authorises the holder of a licence who is aggrieved by the grant of a similar licence to another person to institute such an appeal. By subs(4) the Chairman of the Tribunal is obliged, as soon as practicable, after receipt by the Secretary of the Tribunal of the notice of appeal, to fix a time and place for the hearing of the appeal. Under subs(5) the time and place for the hearing must be fixed and notified to the appellant within 28 days. The Tribunal consists of a magistrate and two other persons. Notwithstanding that s30B(2) requires grounds of appeal to be stated in the notice of appeal, the appeal is by way of hearing de novo; R v Public Vehicles Licensing Appeal Tribunal; ex parte The Transport Commission [1971] Tas SR 145.
Tentative hearing dates were allocated for the appeal, being 12 and 19 September and the week commencing 23 September. However, following representations from Hobart Coaches the hearing is now due to commence on 21 January next and continue until it is finalised, a period of three weeks having been allocated for that purpose.
There is no express provision in the Act whereby the decision of the Commission to issue the licences can be stayed, or the issue of the licences prevented or delayed, pending the hearing of the appeal. Redline requested Hobart Coaches not to introduce the coach services and "not to uplift the licence until the Tribunal has disposed of the matter". Hobart Coaches refused the request. Redline also requested the Commission not to issue the licences until the determination of the appeal. The Commission refused the request. Next, Redline requested the Tribunal to hear an application for an order "to stay the Commission's orders pending the appeal". Its solicitors submitted in correspondence that the Tribunal "has the jurisdiction and power either upon the basis of its inherent jurisdiction or statutory powers via the incorporation of the provisions of the Evidence Act to hear the proposed application", and later that the "power to make that Order is in our opinion a necessary or implied power of any judicial body's power to regulate proceedings before it". The response from the Secretary of the Tribunal was to advise that "the Chairman is of opinion that he has no power to convene the Tribunal for the purpose of hearing an application to restrain the Transport Commission from issuing a licence(s) to Hobart Coaches PL" and that "he has no power to convene the Tribunal which would be at great expense and would result in the same ruling".
The licences have issued and I was told that Hobart Coaches is operating bus services pursuant to them. As a result para3 of the application before me, which seeks an order restraining the Commission from issuing the licences has been abandoned. The application, as amended, is in the following terms:–
"1That pending further order of this Court or the disposal of the Applicants Appeal to the Public Vehicles Licensing Appeal Tribunal, Hobart Coaches Pty Ltd, by its servants agents or otherwise be restrained from conducting route services between Hobart, Launceston, Devonport, Burnie and return.
2That the Second–Named Respondent show cause why a Writ of Certiorari should not issue against it for the purpose of having brought before this Court to be examined as to its legality and quashed a decision of the Second–Named Respondent communicated to the Applicant on the 30th July, 1990, by which the First–Named Respondent was entitled to the grant of four (4) coach licences to conduct route services between Hobart, Launceston, Devonport, Burnie and return upon certain terms and conditions on the grounds that:–
(a)the Second–Named Respondent was wrong in law in that it failed to determine at all whether it accepted or rejected expert testimony;
(b)the Second–Named Respondent was wrong in law in that it failed to determine at all whether the survey conducted by the experts for the purposes of their testimony was valid;
(c)the First–Named Respondent in order to succeed before the Second–Named Respondent had to show that a need for new services existed and this it had failed to do;
(d)the First–Named Respondent in order to succeed before the Second–Named Respondent had to show that there was an unserviced or inadequately serviced public need for new services and this it had failed to do;
(e)the Second–Named Respondent was wrong in law in that it failed to determine at all whether the Applicant provides an adequate suitable and efficient service sufficient to meet the needs of the public;
(f)the Second–Named Respondent was wrong in law in that it failed to determine adequately or at all that it had a duty to avoid the introduction of wasteful competition with other forms of transport operating in the same sphere;
(g)in the premises the Applicant is entitled to an Order that the Second–Named Respondent's decision be quashed and that the said Respondent be directed to determine the issue of whether or not to grant licences to the First–Named Respondent according to law.
4That the Public Vehicles Licensing Appeal Tribunal show cause why a Writ of Mandamus should not issue against it for the purpose of requiring it to convene, hear and determine according to law an application made by the Applicant that it should order the Second Named Respondent to suspend or cancel or impose a condition preventing the carriage of passengers or freight under the coach licences issued to the First–Named Respondent pending the outcome of the Applicant's Appeal to it on the grounds that:–
(a)the said Tribunal has refused the Applicants request to hear the said Application;
(b)the said Tribunal is a judicial or quasi judicial body with powers to regulate its own proceedings, including the power to stay the effect of decisions that come before it by way of appeal."
Counsel for Redline and Hobart Coaches appeared before me. Affidavit evidence was received. That evidence included claims on behalf of Redline that as a result of competition from Hobart Coaches, it will suffer a considerable loss of gross revenue until the appeal is heard, stated to be estimated at approximately $800,000.00 with consequential losses to and detrimental effects on its business. Hobart Coaches disputed the estimated loss in an affidavit from one of its directors and asserted that it will be severely prejudiced if restrained from operating its new services, particularly in the light of a claimed investment of approximately $1,500,000.00 with respect to new buses for the services and for other reasons.
The application to restrain Hobart Coaches
The application seeks an injunction pending further order of this court or the disposal of the applicant's appeal to the Public Vehicles Licensing Appeal Tribunal. However, Redline's counsel said that it sought the injunction until the order nisi for a writ of certiorari, as sought in para2 of the application, is returnable. He referred to the statement by Mason ACJ in Castlemaine Toohey's Ltd v South Australia (1986) 161 CLR 148 at 153, for authority that in order for Redline to succeed with its application for the injunction it must show that there is a serious question to be tried.
It was submitted for Redline that s58 of the Traffic Act 1925 required the Commission to have regard to certain specified matters, that a perusal of the reasons published by the Commission for its decision reveal that there was a failure to comply with that section and that as a result the Commission acted without jurisdiction or exceeded its jurisdiction and the decision to issue the licences was void.
Section 15 provides that the Commission may issue public vehicle licences including coach licences. When issuing a licence the Commission may, by virtue of s17(1), impose such conditions and restrictions in respect thereof as it may think necessary or desirable with respect to the matters to which it is required to have regard when considering applications for licences and in particular for ensuring that certain matters exist, none of which matters are relevant for present purposes.
Section 58 provides as follows:–
"58 –(1) The Commission shall –
(a) consider and determine all applications for licences in respect of public vehicles;
(b) determine in respect of any particular licence or group of licences relating to the same traffic area, route, or place what special conditions, if any, shall be imposed;
(c) recommend to the Governor the sections, parts or divisions of the State to comprise the several traffic areas to be prescribed under this Act and any variations therefrom or alterations therein which at any time may seem desirable;
(d) determine, where the Commission thinks it desirable so to do, the maximum or minimum fares, freights, or charges to be allowed in respect of any service to be provided under any particular licence or group of licences in relation to any particular traffic area, route, or place; and
(e) advise the Governor on all matters relating to the internal transport of the State and to traffic generally.
(2) In the exercise of its functions under this Act, the Commission shall consider all such matters as it may think necessary or desirable for giving effect to the provisions of this Act, and in particular shall have regard to –
(a) the suitability of the routes on which a service may be provided under the licence;
(b) the extent, if any, to which the needs of the proposed routes, traffic areas, or districts, or any of them, are already adequately served;
(c) the extent to which the proposed service is necessary or desirable in the public interest;
(d) the needs of the district, traffic area, or locality as a whole in relation to traffic (including provision of adequate, suitable, and efficient services, the elimination of unnecessary services, and the provision of unremunerative services), and the co–ordination of all forms of transport, including transport by rail;
(e) the conditions of the roads to be traversed with regard to their capacity to carry proposed public vehicular traffic without unreasonable damage to such roads;
(f) the suitability and fitness of applicant to hold licence applied for.
(3) For all or any of the purposes aforesaid the Commission may –
(a) undertake the survey, in such manner as it thinks best, of any traffic area, route or locality;
(b) inquire into the necessity for any proposed service or the transport requirements of any district or part of the State;
(c) with the approval of the Minister, hold such public inquiries into any of the matters aforesaid or any matters relating to transport as it may think desirable.
(4) For the purposes of any such public inquiry as aforesaid the Commission shall have and may exercise all the powers and authority conferred upon a Commission appointed by the Governor under Division 2 of Part II of the Evidence Act 1910, and subject to any prescribed conditions may sit at such times and in such places as it thinks best."
It was submitted by Redline that the requirement in s58(2) that the Commission "in particular shall have regard to" the various matters, imposes a duty not only to consider them but in addition requires the Commission not to make a determination contrary to what the paragraphs provide. For example, it was argued that because of what is contained in para(b) the Commission must not determine to issue a licence unless satisfied that there is a need and that it is not adequately served.
One basis for the submission was that the expression "shall have regard to" must be interpreted in contradistinction to the earlier requirement in subs(2) that the Commission "shall consider all such matters as it may think necessary or desirable for giving effect to the provisions of this Act". There must be a difference, it was argued, between considering certain matters and having regard to other matters. There is no substance in this submission. The expression "shall have regard to" does not have the submitted meaning. To have regard to something involves considering it, paying attention to it and taking it into account. I adopt what was said by the Privy Council in Ishak v Thowfeek [1968] 1 WLR 1718 at 1725 that the requirement to "'have regard' to certain matters tends in itself to show that the board's duty in respect of these matters is limited to having regard to them. They must take them into account and consider them and give due weight to them, but they have an ultimate discretion...".
A consideration of the section reveals that it is not necessary that an applicant for a licence must satisfy all or any of the particular matters in the paragraphs of s58(2) in any particular regard.
By subs(1) the Commission is invested with certain powers and certain duties are imposed on it. As can be seen, included in the subsection is the consideration and determination of all applications for public vehicle licences and also the general subject of advising the Governor on all matters relating to the internal transport of the State and to traffic generally. Subsection (2) provides that the Commission shall have regard to the matters stated therein "(i)n the exercise of its functions under this Act". The provisions of the subsection are not restricted to the occasions on which the Commission exercises or performs the powers and duties in subs(1). The Commission has many functions under the Act, including for example the issuing of certificates of registration of vehicles; the manufacture, supply, erection and installation in public streets of signs and other things including markings on streets; and the removal of obstructions to the vision of drivers. None of the matters contained in paras(a) to (f) in s58(2) appear to be relevant to a consideration of the exercise of those particular functions.
In respect of the Commission's functions referred to in s58(1) it is clear that some or all of the paragraphs will sometimes be irrelevant to the Commission's consideration. For example, when advising the Governor on a matter relating to traffic, none of the paragraphs may be relevant, and when considering an application for an aircraft licence clearly the condition of roads to be traversed, referred to in para(e), will be irrelevant.
Other circumstances can be envisaged in which, although arguably relevant, the matters contained in some paragraphs may not have much importance when considering an application for a licence. For example, it would seem that the requirement in para(c) that regard be had to the extent to which the proposed service is necessary or desirable in the public interest could not sensibly demand in every case a particular conclusion to justify a successful application by a person for an ancillary licence for the purpose of carrying his own goods in the course of his trade or business, nor in the case of an application by a private school for an omnibus licence to carry its pupils for the educational purposes of the school. The public interest would clearly be of little importance with most of such applications.
It is therefore plain that the requirement in s58(2) that the Commission have regard to the stated matters can only apply when they are relevant, and when they are the importance of any particular matter will depend on the function being exercised by the Commission and the circumstances being considered.
At least some of the paragraphs in subs(2) are not so expressed that they require determination in a particular way in absolute terms. For example, the requirement to have regard to what is provided in para(b) is to have regard to the extent to which needs are already adequately served, not to whether they are adequately served or are not adequately served. Similarly with para(c), regard is to be had to the extent to which the proposed service is necessary or desirable in the public interest, and not simply to whether or not the proposed service is necessary or desirable in the public interest.
For Redline's argument to succeed there would need to be contained in the various paragraphs of s58(2) a number of questions or criteria and a requirement that each be answered or satisfied in a particular way. The section can not be so interpreted.
It was further submitted for Redline that a perusal of the published reasons for the decision of the Commission reveals that it did not comply with s58(2). For example, it was argued that the Commission failed to have regard in particular to a matter contained in para(b), that is to say to the extent to which the needs of the proposed routes are already adequately served. But in its reasons the Commission expressly referred to all the paragraphs and, in accordance with a submission made to it by Redline, it referred to paras(b), (c) and (d) as being directly relevant to the evidence it had received. It concluded "that the public interest would be served by an increase in bus services between Hobart and Launceston and Launceston and the North–West Coast. A new operator with services at different times using high quality buses throughout, and with energetic marketing, would stimulate the market for bus travel as well as increasing the level of service offered". The Commission stated that it had "carefully considered the evidence about the standard of current service". On the face of the reasons the Commission did have regard to the relevant matters in s58(2) and there is no basis for an argument that it did not.
It appears true to say that the Commission did not state all of its findings of fact. But it was under no obligation to do so. Indeed, as was said by Burbury CJ in R. v Public Vehicles Licensing Appeal Tribunal; ex parte The Transport Commission [1971] Tas SR 145 at 149:–
"Another relevant consideration is that the statute nowhere requires the Transport Commission to conduct a hearing or to record any evidence. Under reg10 of the Traffic (Public Vehicles) Regulations 1967 the Commission may hold a hearing but it is not bound to do so. Nor is the Commission bound to give reasons for its decision and it did not do so in this case."
On the material before me there is therefore no substance in the argument that the Commission acted without jurisdiction by failing to address itself to an essential issue. I add that I reject the argument if I understood it correctly, that because the Commission added that it did "not believe that simply because an existing operator provides a service entitles it to enjoy a monopoly indefinitely" there is evidence which might lead to the conclusion that the Commission failed to have regard to matters required by law. By the opening words of subs(2) the Commission was entitled indeed obliged, to consider all matters it might think necessary or desirable for giving effect to the provisions of the Act.
Although in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 the High Court said that one of the tests to be applied when considering an application for an interlocutory injunction is whether the applicant has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be entitled to relief, more recent cases tend to support the test propounded by the House of Lords in American Cyanamid Co v Ethicon [1975] AC 396 that there should be shown to be a serious question to be tried; see for example Castlemaine Toohey's Ltd v South Australia (1986) 161 CLR 148. I am not persuaded that the applicant's case satisfies either test.
I am left in the position of finding no merit in the applicant's argument that the Commission acted without jurisdiction or exceeded its jurisdiction. There being no serious question or issue to be tried the application for an injunction pending the return of an order nisi for a writ of certiorari should fail. In so far as the application seeks the injunction until disposal of the appeal to the Tribunal, it is important to have regard to the fact that Parliament did not include in the legislation any provision for a stay of the Commissioner's determination or a suspension of a licence pending an appeal, and in those circumstances it is inappropriate to restrain Hobart Coaches simply because Redline has appealed to the Tribunal. The nature of the appeal will be by way of hearing de novo. Whether or not the appeal will be successful will depend largely on the evidence presented to the Tribunal by Redline and Hobart Coaches. It is impossible to anticipate the likely result. In the meantime Redline is entitled to operate its bus services pursuant to its licences, as it will after the appeal has been determined regardless of the result. Hobart Coaches will also be entitled to operate its bus services pursuant to the licences which, on the face of the material before me, were issued to it in accordance with the Act, but subject to the power of the Tribunal to direct cancellation of those licences in the event of the appeal being successful. It may well be that in the meantime Redline will suffer a reduction in income because of competition from Hobart Coaches. But that is a consequence which the legislation permits. It being impossible to forecast the probable result of the appeal or to assess to any extent Redline's chances of success, it is inappropriate that I should exercise my discretion to restrain Hobart Coaches from conducting its bus services in accordance with the licences which prima facie have been issued to it in accordance with law.
The application for the injunction should therefore fail.
The application that the Commission show cause why a writ of certiorari should not issue
In support of this application counsel for Redline relied on the same submissions in support of an argument that the decision to issue the licences was void. As already stated by me, there is no basis for such an argument. I deal with the particular grounds of the application as follows:
(a)The evidence received by the Commission was not put before me. Accordingly this ground cannot be considered further. The Commission was not obliged to give reasons for its decision in any event. There is no evidence to suggest that it failed to make such a determination.
(b)For the same reasons this ground must fail.
(c)(d)(e)I have dealt with and rejected such arguments.
(f)The bus service proposed by Hobart Coaches would not be another form of transport to that conducted by Redline. No arguable basis for such an absolute duty was established.
(g)This is not a ground of application.
There being no prima facie or arguable case for certiorari the application must fail.
The application that the Public Vehicles Licensing Appeal Tribunal show cause why a writ of mandamus should not issue
The basis for mandamus was originally stated in the application to be that the Tribunal had refused to hear an application that it should order a stay of the issue of the coach licences to Hobart Coaches, and that it had the power to order such a stay. The Tribunal clearly had no such power and it therefore had no duty to hear such an application. No authority to support an argument to the contrary was cited by Redline's counsel and he admitted to being unable to find such an authority. The Tribunal has no inherent jurisdiction on which such power can be based. Its powers and functions are contained in s30B of the Traffic Act 1925. Under subs(8) it may dismiss the appeal or it may, in the circumstances of this case, direct the Commission to cancel the licences which have now issued, or to impose, vary or remove in any condition or restriction in respect of the licences.
In any event, the licences have since been issued and it is now too late to consider the making of an order staying their issue. In view of this Redline applied to amend and I ordered that the application be amended so as to seek mandamus for the purpose of requiring the Tribunal to hear and determine an application that it order the Commission to suspend or cancel the issued licences, or impose a condition to them preventing the carriage of passengers or freight, pending the outcome of the appeal to the Tribunal. The simple answer to the amended application is that the Tribunal has not had made to it an application for such an order, and it has not refused to hear such an application. Even if it had, I would have no hesitation in rejecting the submission by counsel for Redline that pursuant to s30B(8) of the Traffic Act 1925 the Tribunal would have power to make such orders on an interlocutory basis.
There being no prima facie or arguable case for mandamus this application must also fail.
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