Bermuda Taxi Radio Cabs Ltd v Minister of Transport, Transport Control Department and the Public Service Vehicle Licensing Board

• Jurisdiction: Bermuda
• Judgment Date: 21 August 2009
• Date: 21 August 2009
• Docket Number: Civil Jurisdiction 2009 No. 120
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2009 No. 120

In the matter of an Application for Judicial Review

And in the matter of the Motor Car Act 1951

And in the matter of the Motor Car Amendment (No. 3) Act 2008

And in the matter of a policy which condoned the failure to license various motor taxes

And in the matter of the Minister of Transport's decision to bring the Motor Car Amendment (No. 3) Act 2008 into force on 23rd January 2009

BETWEEN:

BERMUDA TAXI RADIO CABS LTD

Applicant

and

THE MINISTER OF TRANSPORT

1st Respondent

and

THE TRANSPORT CONTROL DEPARTMENT

2nd Respondent

And

THE PUBLIC SERVICE VEHICLE LICENSING BOARD

Directly Affected Party

Mr E Johnston for the Applicant

Mr M Douglas for the Respondents

The following cases were referred to in the judgment:

R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513

Simons v Accountant General [1999] Bda LR 43

Societe United Docks v Government of Mauritius [1985] 1 AC 585

Abstract:

Judicial review - Public law - Implementation of GPS systems in taxis - Whether misuse of power - Whether Minister should take economic conditions into account

JUDGMENT of KAWALEY, J

Introductory

1. In or about 2006, the Motor Car Act 1951 was amended with a view to requiring taxis to use new global satellite positioning ("GPS") equipment. It is a notorious fact that this legislation has met with vigorous opposition from certain segments of the Bermudian taxi industry. This opposition, combined with the rational need for time to acquire and install the new technology, appears to explain the staggered implementation of various provisions over a period of more than two years.

2. The present case arises from the Applicant taxi despatching company's contentious interactions with the Transport authorities in relation to the implementation of this legislative scheme. On February 25, 2009, the Applicant applied for leave to apply for judicial review in respect of (1) the Second Respondent's policy of failing motor taxis which did not have GPS equipment fitted ("the Policy"), and (2) the First Respondent's decision to bring the Motor Car Amendment (No.3) Act 2008 into force on January 23, 2009 ("the Decision"). On March 6, 2009, without a hearing, I granted leave in respect of the Policy, but refused leave in respect of the Decision.

3. At a renewed application for leave on March 31, 2009, I explained that no leave was required for relief under section 15 of the Bermuda Constitution, which ought ordinarily to form the subject of a separate application, unless it was obvious that the judicial review applicant's administrative law claim was bound to fail. On April 2, 2009, I granted leave in respect of the public law challenge to the Decision, Mr. Johnston having persuaded me that, contrary to my preliminary view, this point was indeed an arguable one.

4. The Affidavits of Randolph Rochester and Cherie Whitter, sworn on June 13, 2009 and June 17, 2009, respectively, on behalf of the Respondents, each conceded that the Policy was unlawful while quibbling with the precise form of declaration which ought to be granted. At the substantive hearing of the application, Mr. Johnston was happy to accept a declaration in the terms proposed by the Respondents.

5. Accordingly, the only contentious issue was the legality of the Decision.

The Decision

6. It is common ground that with effect from January 23, 2009, the Premier, acting in his capacity as the Minister responsible for Transport purportedly pursuant to powers conferred by section 4 of the Motor Car Amendment (No.3) Act 2008 ("the Act"), brought the Act into force by notice published in the Official Gazette1. The Act was assented to on March 26, 2008 and most significantly amended the principal act to make it an offence to (a) operate a taxi without the GPS equipment operating and switched on (section 35B), and (b) operate a despatching service without the GPS equipment operating and switched on (section 37A). Section 4 of the Act provided, in terms which were not contended to be otherwise than standard for a commencement clause:

"This Act comes into operation on a day to be appointed by the Minister responsible for Transport by notice published in the Gazette."

7. The Affidavit of Edward Darrell sworn on February 25, 2009 makes the following averments relating to the Decision (paragraphs 3 to 6). Firstly it is deposed that the Applicant carries on business as a taxi despatching service which is utilised by approximately 180 taxi operators. Secondly, it is averred that in 2007, the Applicant applied to the Board to increase its charges to its operators, which increase was required to offset the expenses of operating with the new GPS technology. At this time it was well known that the Applicant's competitors had similar applications approved by the Board, but the Applicant's application was refused. An appeal was lodged with the Magistrates' Court on July 23, 2007, but no hearing had been arranged. The effect of the Decision was to require the Applicant to incur the expense of using the new technology, including utilising an overseas subscriber, with no means of recompense for this additional expense having regard to the refusal of the Board to allow the Applicant to increase its charges. Moreover, the Decision was made both during an economic downturn and during the slow season when it was a matter of public record that the...