Rural Transit Association Ltd v Jamaica Urban Transit Company Ltd
| Jurisdiction | Jamaica |
| Judge | V. Harris, J |
| Judgment Date | 18 November 2015 |
| Neutral Citation | [2015] JMSC Civ 224 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO 2014 HCV 02279 |
| Date | 18 November 2015 |
[2015] JMSC Civ 224
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO 2014 HCV 02279
CONSOLIDATED WITH: CLAIM NO 2014 HCV 02299
Judicial Review — Application for leave — Orders of Certiorari and Prohibition — Threshold Test — Whether sub-franchise fee imposed by JUTC is ultra vires — Whether JUTC is regulating public passenger transportation — Civil Procedure Rules Part 56
These are applications by Rural Transit Association Ltd (RTA Ltd) and V & B Transport Ltd (V & B) (“the Applicants”) pursuant to Part 56 of the Civil Procedure Rules 2002 (CPR) seeking leave to apply for judicial review.
V & B is a member of the Western Transit Association Limited (WTA Ltd). WTA Ltd and RTA Ltd are incorporated under the Companies Act of Jamaica, to among other things, represent and promote the interest of private individuals who are engaged in the provision of public passenger transportation in Jamaica.
The Respondent, Jamaica Urban Transit Company Limited (JUTC) is a private company also incorporated under the Companies Act of Jamaica. JUTC's sole shareholder is the Accountant General of Jamaica. It holds the exclusive licence or franchise to provide public passenger transport service within and throughout the Kingston Metropolitan Transport Region (KMTR) by means of stage and express carriages.
These applications commenced with the Transport Authority (TA) as the 1 st Respondent and the Office of Utilities Regulations (OUR) as the 3 rd Respondent. However, on October 30, 2014 when the matters were before Hibbert J, he ordered that the two applications for leave were to be heard together. There was also an order which indicated that the reliefs that were being sought against the TA and OUR were no longer being pursued. JUTC, therefore, remains the only Respondent to this application.
On December 18, 2014 RTA Ltd filed an amended notice for leave to apply for judicial review. On January 06, 2015 V & B filed a similar one. They are seeking several declarations, the prerogative writs of certiorari and prohibition, interim and permanent injunctions, as well as, damages and costs.
The condensed grounds on which the Applicants are seeking these orders are:
(i) The Respondent has no power or capacity in law to regulate the provision of public passenger transportation in the country or the KMTR.
(ii) The refusal by the Respondent to renew the two one year licences that were issued to V & B amounts to regulation of public passenger transportation.
(iii) The Respondent has no power or capacity in law to grant a licence to the members of RTA Ltd to operate public passenger transportation in the KMTR.
(iv) The Respondent has no power or capacity in law to grant sub-franchise licences to the members of RTA Ltd who are engaged in the provision of public passenger transportation in the KMTR.
(v) The Respondent has no power or capacity in law, acting by itself to impose fees on members of RTA Ltd who are engaged in the provision of public passenger transportation in the country or the KMTR.
(vi) The purported increase in the fees from $280,000.00 to $756,000.00 by the Respondent amounts to regulation of public passenger transportation.
(vii) The Applicant RTA Ltd has a legitimate expectation that the licence issued to it will not be unilaterally amended by the Respondent and anyone acting on behalf of the Respondent. Accordingly, the actions of the Respondent in regulating the provision of public passenger transportation in Jamaica, if allowed to continue, would destroy and defeat those expectations.
I will commence with what I believe was the catalyst for these applications.
In early November 2013, some members of the Applicants, who hold sub-franchise and rural licences to provide public passenger transport services both wholly and partly within the KMTR respectively, were notified by announcements in the print and electronic media of impending changes that would be made to the terms and conditions of their licences. Letters dated November 05, 2013 written by Mr. ColinCampbell, the managing director of the Respondent company and addressed to subfranchise operators confirmed this.
This was because, inter alia , the Respondent anticipated that its fleet of buses would be substantially increased by the time the new licensing year arrived on April 01, 2014. This meant, naturally, that fewer routes within the KMTR would be sub-franchised.
The Applicants were also informed, by this said letter, that a bidding process would be untaken by the Respondent to facilitate the identification of ‘the most suitable candidates who would be needed to provide transportation service on the various routes that were being franchised by the JUTC’. They were also told that there would be no automatic renewal of their licences.
To make matters worse, sometime during the month of March 2014, Mr. Campbell announced that he intended to consult with the Attorney General and seek to amend clause 2 of the licences issued by the TA.
If this amendment were made, it would prevent the relevant licensees who were operating from areas outside the KMTR to destinations within the KMTR from setting down and picking up passengers within the KMTR. This pronouncement by the Respondent's managing director caused much alarm to the members of Applicants who regarded clause 2 of their licences to be “fundamental and critical” to their operations.
On April 23, 2014, a meeting was convened by the TA. Several members of the Applicants were in attendance. At that meeting, they were informed by a representative of the TA that the ‘official policy of the TA in respect to clause 2’ of their licences had changed. They were told that ‘persons transporting passengers coming from rural areas into the KMTR, including persons operating from Papine and Cross Roads will not be able to let off or pick up passengers along the route’. The Applicants felt that this was contrary to the term stipulated in clause 2 of their licences.
Needless to say, some persons at that meeting protested. The meeting ended abruptly when the TA's representative walked out. The Applicants being aggrieved bythe far reaching changes that were about to overtake them sought legal advice and the matter is now before the Court.
The applications are supported by three affidavits, one each from Mr. Lloyd Henry and Mr. Morraine Thompson on behalf of RTA Ltd; and the other from Mr. Bruce Miller on behalf of V & B.
All three affiants have been in the public passenger transportation business for a long time. Mr. Henry is the holder of a rural stage carriage licence which permits him to provide public passenger transport services between Kitson Town in St. Catherine and the KMTR. Mr. Thompson holds both rural stage carriage licences and sub-franchise licences. The sub-franchise licences authorize him to operate wholly with the KMTR. Mr. Miller holds only sub-franchise licences.
Messrs. Henry and Thompson have asserted that clause 2 of their rural licences allows them to set down and pick up passengers at designated bus stops or points of convenience along the route, including areas within the KMTR.
Mr. Henry has exhibited one of his rural licences. Clause 2 of that licence reads:
‘The approved stopping points at which passengers may be taken up and/or set down shall be such places specified by the sign ‘Bus Stop’ or where no signs are provided at such places convenient.’
But there is more. Clause 10 of that licence states: ‘The Licensee shall observe and comply with the conditions imposed by Section 3 Subsection 4 Public Passenger Transport (Corporate Area) Act .’ (Emphasis mine) I believe that the statute referred to is one and the same as the Public Passenger Transport (Kingston Metropolitan Transport Region) Act (PPKMTR Act). It would seem to me therefore that clause 2 of this licence is subject to the condition stated in section 3 (4) of the PPKMTR Act, which I will come to later in this judgment.
Mr. Thompson stated that he initially paid $70,000.00 for his KMTR licences. These were later increased to $280,000.00. In February 2014 he was notified by theRespondent that the fees would be increased to $756,000.00 on April 01, 2014. He was also later informed that three of his previous licences had been “revoked”.
Mr. Thompson has exhibited one of his licences. It bears the title ‘Public Passenger Transport (KMTR) Act. Sub-licence to operate stage carriage service in the KMTR’. It was issued by the TA and authorizes him to operate between Bull Bay and Half Way Tree. Clause 3 of this licence is a replica of clause 2 in the rural licences. However, the other conditions in the KMTR licence are different from those in the rural licence.
As an example, clause 9 of the KMTR licence expressly states that the licence is issued with the consent of the JUTC in accordance with section 3(3)(d) of the PPKMTR Act. The licensee is mandated to observe and comply with the terms and conditions of the said consent. Clause 3 is also not subject to the condition contained in clause 10 of the rural licences. I imagine that this is so because there are no provisions in the PPKMTR Act that stipulate that persons operating wholly within the KMTR require the consent of the JUTC to pick up and/or set down passengers. From a practical standpoint they would need to do so.
Mr. Miller also gave evidence that the Respondent substantially hiked the sub-franchise fees and revoked two of his licences. He spoke of the notice that was circulated by the Respondent in the print media advising sub-franchise holders of the...
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