Rhodesia Railways v Bulwark Transport (C.A.) Ltd ((1963 - 1964) Z and NRLR 117) [1964] ZMHCNR 21 (31 July 1964)

RHODESIA RAILWAYS v BULWARK TRANSPORT (C. A.) LTD (1963 - 1964) Z and NRLR 117 1963 - 1964 Z and NRLR p117 [Before the Honourable Mr. Jus�ce CHARLES on the 31st July, 1964.] Flynote Road Traffic - exercise of Road Traffic Commmissioner's discre�on - appellate jurisdic�on of the Road Services Appeal Tribunal and the High Court - sec�ons 152 and 155 of the Roads and Road Traffic Ordinance. Headnote The respondent company to the present appeal had applied for a road service licence to enable it to transport the Ford Motor Company's vehicles by road instead of by rail. The Road Traffic Commissioner dismissed the applica�on on the basis that although the gran�ng of the applica�on would reduce costs, to the benefit of the Ford Company's customers in Northern Rhodesia, this considera�on was outweighed by the heavy poten�al loss of revenue to the present appellant as a public authority. The Road Service Appeal Tribunal considered that this was a wrong approach by the Road Traffic Commissioner, and overturned his decision. There was then a further appeal to the High Court. Held: (a) The Appeal Tribunal was correct in holding that the Road Traffic Commissioner had exercised his discre�on on a wrong basis. (b) The Appeal Tribunal itself had erred in law in taking into account, in determining whether actual loss would result to the railway authori�es, the evidence of the Ford Motor Company's inten�on to run its own road transport if the licence were not granted. Appeal allowed: Road Traffic Commissioner's decision restored. Cases cited: British Launderer's Research Association v Borough of Hendon Rating Authority [1949] 1 KB 434; [1949] 1 All ER 21. E T E Martin for the appellant F L Wood for the respondent Judgment Charles J: This is an appeal from a decision of the Road Service Appeal Tribunal reversing a decision of the Road Traffic Commissioner upon an applica�on by the present respondents for a new road service licence. The Road Traffic Commissioner dismissed that applica�on, and the Road Service Appeal Tribunal on appeal granted the applica�on. The applica�on was for a road service licence authorising " a goods service under contract to the Ford Motor Company of Rhodesia Limited for the carriage of motor cars, tractors and light commercial vehicles (assembled). Service to operate throughout Northern Rhodesia with four transports and three ar�culated trailers each of ten - tons licensed carrying capacity ". The purpose of the applica�on was to enable the Ford Motor Company of Rhodesia to have its vehicles transported by road transporters from its Salisbury factory to its dealers throughout the late Federa�on of Rhodesia and Nyasaland instead of by rail. The applica�on was opposed by the present appellant. 1963 - 1964 Z and NRLR p118 CHARLES J In dismissing the applica�on the Ac�ng Road Traffic Commissioner, a�er referring to the maters men�oned in sec�on 152 (4) (b), (c) and (d) of the Roads and Road Traffic Ordinance (Cap. 173) as having to be taken into considera�on when exercising his discre�on, said that it was apparent from the wording of subsec�on 4 that representa�ons by the railway administra�on have to be given a high priority and full considera�on. He then referred to the benefit which would accrue to the Northern Rhodesia customers of the Ford Motor Company by reduc�on in costs if the applica�on were granted, but found that that considera�on was more than outweighed by the heavy poten�al loss of revenue which would result to the present appellant as a public authority. The Road Service Appeal Tribunal considered that the Ac�ng Road Traffic Commissioner had approached the exercise of his discre�on on the basis that the interests of the present appellant must always come before the general public interest unless it can be shown posi�vely by some other body that they should be subordinated; that that approach was not warranted by the statutory provision referred to; and that, accordingly, the discre�on had been exercised on a wrong basis. It then held that, whether or not the Ac�ng Road Traffic Commissioner had erred in law as to the approach in exercising his discre�on, the present respondent had made out a good case for a licence and its applica�on should be granted. With reference to the statutory considera�on of " the extent to which rail transport might be adversely affected ", it found that no actual adverse effect would result to the present appellant by gran�ng the licence, because, on the uncontradicted evidence, the Ford Motor Company itself intended to use its own road transport if the licence were not granted, so the present appellant would lose that company's business in any event. The appeal to this court was brought on three grounds, one of which was not argued. The two which were argued were, in substance, that the tribunal's decision was based on two errors of law, namely, in holding that the Ac�ng Road Traffic Commissioner had exercised his discre�on on a wrong basis, and by taking into account the evidence of the Ford Motor Company's inten�ons if the licence were not granted. The appellate jurisdic�on which is conferred upon the Road Service Appeal Tribunal by sec�on 155 of the Roads and Road Traffic Ordinance is by way of re-hearing and in respect of both ques�ons of law and ques�ons of fact. The appellate jurisdic�on which is conferred on this court by the same sec�on in respect of decisions of this tribunal is limited to ques�ons of law. The ordinance is singularly silent as to this court's powers in exercising that limited jurisdic�on as it merely provided that specified persons " may appeal to the High Court ". An appeal solely on a ques�on of law appears to me to be one in which the ques�on is whether the decision under appeal was based on a material error of law, that is, on an error of law but for which the decision might have been different. If the answer to that ques�on with reference to this case is in the affirma�ve, the decision of the Road Service Appeal Tribunal must be set aside and a decision confirming that of the Ac�ng Road Traffic Commissioner subs�tuted, on the basis that a bare grant of appellate jurisdic�on is by necessary implica�on a grant of the minimum powers 1963 - 1964 Z and NRLR p119 CHARLES J to render the exercise of that jurisdic�on effec�ve. If the answer to that ques�on is in the nega�ve, the decision of the Road Service Appeal Tribunal must be confirmed on the same basis. The phrase " ques�on of law " includes not only ques�ons of the law applicable to the facts of a par�cular case and ques�ons as to the admissibility and sufficiency, as dis�nct from the weight, of evidence, but ques�ons as to whether a conclusion was reasonably open as an inference from the primary facts which have been found, and the correctness of such a conclusion itself if it was a mater of inference which could only be made by one with legal knowledge. (See British Launderer's Research Association v Borough of Hendon Rating Authority [1949] 1 KB 434 at page 462; [1949] 1 All ER 21 at pages 25 - 26, per Denning, LJ). In this case, it seems that the appeal tribunal was correct in holding that the Ac�ng Road Traffic Commissioner had exercised his discre�on on the basis that under sec�on 152 of the Roads and Road Traffic Ordinance the interests of the present appellant were a primary considera�on. It was certainly correct, in my judgment, in holding that that was a wrong basis. Sec�on 152 of the ordinance vests in the Road Traffic Commissioner a discre�on in the gran�ng or refusal of road service licences and requires him, by subsec�on 4, to have regard to twelve specified maters in exercising that discre�on. Those maters are specified without any indica�on that any are more important than others. The order of their enumera�on cannot be regarded as sufficient evidence of a legisla�ve intent to denote an order of importance. In each par�cular case the discre�on must be exercised by balancing and offse�ng the various maters according to their rela�ve importance in the circumstances of the case. Thus, in one case, one mater may assume a rela�ve importance far out - weighing the importance of the other maters, as where the applicant has such a record of previous convic�ons for road traffic offences as to jus�fy dismissal of his applica�on out of hand without regard to the other maters. In another case, even the existence of a record of one previous convic�on may be a mater of very slight rela�ve importance. From the very nature of the maters to be taken into account, no hard and fast rule as to their rela�ve importance can be laid down, and it seems to me obvious that the legislature did not intend to prescribe such a rule. If the mater rested there, this appeal would fail on the basis that the ques�on of law just considered having been answered by the appeal tribunal in the present respondent's favour, the tribunal's decision was based partly on it and on ques�ons of fact. However, in my judgment the tribunal erred in law by taking into account, in determining whether actual loss would result to the present appellant, the evidence of the Ford Motor Company's inten�on to run its own road transport if the licence were not granted. Sec�on 152 (4) (c) provides that " the extent to which rail . . . transport might be adversely affected and any representa�on which might be made in that behalf " is a mater to be considered. It is clear from the evidence that the gran�ng of the licence to the present respondent will 1963 - 1964 Z and NRLR p120 CHARLES J adversely affect the revenue of the present appellant, as the later will cease then to transport the Ford Motor Company's products to customers. The fact that the Ford Motor Company intends to discon�nue using the railway services whether or not the licence is granted seems to me to be beside the point. In the first place, that company may change its inten�ons - may have a second thought - when the �me comes to carry out its announced inten�on. In the second place, if the Ford Motor Company were to carry out its announced inten�on, the effect on the present appellant's revenue would not be the result of gran�ng the licence but of refusing it. In the third place, the announced inten�on savours of an atempt by a big business concern to influence unduly the Road Traffic Commissioner in his decision, and it is to be presumed that the legislature did not intend to open the door to such influence but intended the placitum to relate only to adverse effects directly and immediately resul�ng from the gran�ng of licences. The ques�on then arises: Did the error of law materially affect the decision, that is, is it apparent that the decision would have been the same had the error of law not occurred? From the writen reasons of the appeal tribunal for its decision, I find it impossible to say that, had it considered the poten�al loss of £35,000 per annum revenue to the appellants, as a poten�al loss resul�ng from the gran�ng of the licence, it would s�ll have allowed the appeal. Consequently, this appeal must be allowed: the decision of the Road Service Appeal Tribunal being set aside and an order confirming the Ac�ng Road Traffic Commissioner's refusal subs�tuted. There will be judgment accordingly.