R v The Members of the Licensing Authority for the Eastern Area and Barbara Chin, ex parte Jamaica Suntours Ltd
| Jurisdiction | Jamaica |
| Judge | Smith, C.J.,Willkie, J.,Chambers, J. |
| Judgment Date | 06 February 1975 |
| Court | Supreme Court (Jamaica) |
| Docket Number | E. 129 of 1974 |
| Date | 06 February 1975 |
Supreme Court
Smith, C.J., Wilkie and Chambers, JJ.
E. 129 of 1974
H.O.A. Dayes and L. Williams for applicants.
C. Leiba for respondent Barbara Chin.
Administrative Law - Remedies — Certiorari
On July 11, 1974, the Licensing Authority for the Eastern Area, appointed under the provisions, the Road Traffic Law, (Cap. 346 - 1953 Revised Edition), granted an application by the respondent Barbara Chin for a road licence to operate a stage carriage from Kingston through the parish of Saint Thomas to Millbank in Portland. The application was made and granted under the provisions of s. 55 of the Law and the relevant regulations contained in the Road Traffic Regulations, 1938.
As operators of stage carriages on a part of the route specified in the written application of the respondent Chin, the applicants Jamaica Suntours Ltd. (hereinafter ‘Suntours’) were served with notice of her application. As they were entitled to do, they appeared at the hearing of the application and opposed the grant thereof. Having failed in their opposition, by leave of Vanderpump, J. granted on July 31, 1974, they applied by motion for an order of Certiorari to remove into this court and to quash the grant to the respondent Chin.
In the hearing of the application before us, the applicants Suntours relied on eight grounds. In my opinion, six of them were without merit but, out of respect for the arguments of Mr. Dayes, I shall refer to them before dealing with the two main grounds.
Complaint was made of the fact that the precise terminal points of the route which the prescribed form required to be stated in the written application made by the respondent Chin were not so stated. This point was made in the final address of the learned attorney for Suntours before the Licensing Authority. After the final addresses, over the objection of the attorney for Suntours, the Authority recalled the respondent Chin and allowed her to supply the missing particulars and, this done, allowed her to amend her application accordingly. The application as filed merely had ‘Kingston’ and either “Mill Bank” or “Mill Bank Square” as terminal points of the route. As amended it read “Kingston - Municipal Bus Terminus, West Street” and “Mill Bank's Square - Mr. Smith's shop”. It was contended that the application was a nullity since it did not comply strictly with the regulations and that there was therefore, nothing for the Authority to consider. Complaint was also made of the conduct of the Authority in recalling the respondent and allowing the amendment of the application to be made at such a late stage in the proceedings. It was contended that the fault could not be cured by amendment at that stage without the proceedings being started afresh and that in allowing the amendment the Authority erred by applying a wrong legal test or principle in determining a material question.
As I have said, in my view, there is no merit in either of these complaints. Mr. Dayes said that the missing particulars were necessary so that members of the traveling public would know where to await the ‘bus and so that a check could be made that the timetable was being kept. These are events, which would occur after the grant of the licence and it was not contended that the persons entitled to notice of the application were in any way prejudiced by either the omission or the amendment. We were told that the applicant and other witnesses did not give sworn evidence and it was conceded that there is no statutory requirement for the proceedings to be conducted like those of a court. There is power given to the Minister in s. 61 of the Law to make regulations “as to the procedure on applications for and the determination of questions in connection with the grant” of road licences but we were told that this power has not yet been exercised.
It emerged during the hearing of the application before the Authority that the respondent Chin proposed to use a driver in the operation of her ‘bus in such a way as would involve a breach of regulation 52(iii) of the Regulations. Objection was taken on behalf of Suntours to the grant on this ground. The Authority, quite clearly and surprisingly, wrongly interpreted regulation 52, as shown by affidavit before us, in ruling that unless there was a breach of paragraphs (i) and (ii) of the regulation as well “there was no breach of the regulation.” Based on this construction of the regulation, it is said, the objection to the grant was over-ruled and this is made a ground of complaint before us. The contention on this ground is that in adjudicating on the application the Authority “made use of” this misconstruction of the regulation and having stated a ground which is wrong their decision is subject to review. It was also argued that by admitting an intention to break the law this rendered the respondent not a fit person to hold a licence [see s. 53(4)]. Assuming these were material considerations on the question of the grant or refusal of the application, it is, in my opinion a complaint properly to be made on an appeal under the provisions of s. 62 and not on an application for certiorari. It was a wrong ruling in law on a matter which was within the jurisdiction of the Authority and could, therefore, only be corrected on appeal (vide R. v. Comptroller General of Patents and Designs, Ex parte Parke, Davis and Co. [1953] 2 W.L.R. 760 at p. 765).
It was conceded that a complaint of the failure of the respondent Chin to adduce necessary “evidence” under the provisions of s. 55(2) was properly a matter for argument on appeal and is not a ground upon which an order of certiorari may be granted. It was pointed out by us, arguendo, and conceded that s. 55(2) placed no burden on an applicant to “adduce evidence” but that the duty was on the Authority to take the matters therein stated into consideration. Similarly, the complaint that the Authority disregarded “evidence” concerning the fitness of the respondent was a matter for appeal and not certiorari. The sixth ground dealing with the failure of the respondent Chin to submit a certificate of fitness to the Authority was conceded to be without merit as in the particular circumstances she was required to comply with the relevant regulations and had done so.
I turn now to the two main grounds, which were concerned with the constitution of the Licensing Authority which heard and granted the application. Section 5 of the Law provides that “the Minister may appoint any person or persons to be the Licensing Authority for any Licensing Area of the Island.” On March 30, 1973, the date of the respondent Chin's written application for the licence, the Licensing Authority for the Eastern Area consisted of six persons, including Mr. A.G. Gilman, the chairman, and Mr. B.U. Leslie. Notice of their appointment appeared in the Jamaica Gazette on May 18, 1972, and was stated to be “for the period ending 5 th April, 1973”. Hearings of the application took place at Port Antonio on February 26, April 17, May 25, June 19 and July 11, 1974. On February 26 the Authority consisted of seven persons, including Messrs. Gilman and Leslie and Mr. Sherman Moncrieffe (vide Jamaica Gazettes of April 26 and October 4, 1973). The appointment of these seven expired on April 6, 1974. On April 17 and thereafter up to the grant of the licence on July 11, 1974, the Authority consisted of seven persons, including Messrs. Gilmore, Leslie and Moncrieffe.
The application was heard throughout by these three gentlemen only, Mr. Gilman being the chairman. No evidence was put before us to show whether or not on the occasions when the application was heard any other member of the Authority attended besides the three named.
On the relevant occasions, the notices in the Gazette of the appointment of the Authorities for the several areas were in identical terms, as follows:
“In accordance with the powers conferred on him by section 5 of the Road Traffic Law, Chapter 346 the Minister of … has appointed the under-mentioned persons to constitute the Licensing Authorities for the Licensing Areas set out in regulation 190(b) of the Regulations made by the Governor in Privy Council on the 14 th March 1938, for the period ending.… three members of each Licensing Authority to form a quorum.”
then followed the names of the persons for each of the five areas. References to earlier volumes of the Jamaica Gazette show that this form of appointment has, been used since 1963. By way of contract up to 1960 the form of appointment was as follows:
“His Excellency the Governor under section 5 of the Road Traffic Law, Chapter 346 has re-appointed the undermentioned persons or any three of them to constitute the Licensing Authorities for the Licensing Areas set out in the Regulation 190(b) of the Regulations made by the Governor in Privy Council on the 14 th March 1938, for a period of … year(s) from the 1 st April, 19…” (vide Jamaica Gazette of March 31, 1960).
It was submitted for the applicants Suntours, firstly, that where a quasi-judicial body is appointed by virtue of a statute the functions of that body must be exercised by the whole body and not by a part, in the absence of specific statutory provisions or necessary implication to the contrary. This submission was based on the judgment of Pennycuick, V-C. in Howard v. Borneman et al (No. 2) [1974] 1 W.L.R. 15 in which the learned Vice-Chancellor accepted as right the contention that:
“where a judicial function is committed by statute to a body consisting of certain individuals to be ascertained or appointed in a prescribed manner, then in the absence of express provision or necessary implication, that function must be performed by all those individuals collectively and...
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