Eldon Robinson v Public Service Vehicles Licensing Board

• Jurisdiction: Bermuda
• Judge: Mussenden CJ
• Judgment Date: 06 December 2024
• Neutral Citation: [2024] SC Bda 73 civ
• Court: Supreme Court (Bermuda)
• Docket Number: 2022: No. 77

Between:

Eldon Robinson

Applicant

and

Public Service Vehicles Licensing Board

Respondent

[2024] SC (Bda) 73 civ (6 December 2024)

2022: No. 77

In The Supreme Court of Bermuda

Application for judicial review of the decisions of the Public Service Vehicles Licensing Board refusing to:

(i) reinstate the Applicant's public service vehicle (taxi) driver's licence in August 2019; and

(ii) to remit the Applicant's grievance to a Court of Summary Jurisdiction;

Delay in applying for judicial review; Whether an issue was now academic obviating judicial review; Whether the decisions and deferral of decision were ultra vires and therefore illegal

Appearances:

Cameron Hill, Spencer West Bermuda, for the Applicant

Eugene Johnston, Attorney General's Chambers, for the Respondent

JUDGMENT of Mussenden CJ

Introduction

1 In these proceedings dated 22 March 2022 Mr. Robinson seeks judicial review of two decisions (the “ Decisions” or “ Public Law Claims”):

• a. By the Minister of Transport (the “ Minister”) in a letter dated 17 October 2019 wherein the Public Service Licensing Board (the “ Board”) refused to reinstate Mr. Robinson's taxi driving licence (the “ Licence”), a public service vehicle license (“ PSVL”), in August 2019 (the “ Renewal Decision”); and

• b. By the Transport Control Department (“ TCD”) which, having received a letter from law firm DV Bermuda, Barristers & Attorney (“ DVB”) dated 26 October 2019 seeking to remit the matter to a summary court, on an unknown date thereafter, refused to remit Mr. Robinson's grievance (the “ Grievance”) to a Court of Summary Jurisdiction (“ Summary Court”) (the “ Remittal Decision”).

2 On 5 May 2022 the then Chief Justice Mr. Hargun granted leave for Mr. Robinson to issue an originating Notice of Motion seeking judicial review.

3 I agreed with the parties at the start of the hearing that a proper approach to this matter was to deal with the Public Law Claims first and to issue a judgment on the same, and then if necessary, hold a subsequent hearing to deal with the issue of damages.

The Parties

4 Mr. Robinson is a taxi driver and he has been driving a taxi since May 2016 when he was first issued his Licence pursuant to section 82 of the Motor Car Act 1951 (the “ MCA”).

5 Mr. Terry Spencer, Director of TCD, filed an affidavit sworn 13 March 2024 (“ Spencer 1”) in support of his application pursuant to the Crown Proceedings Act 1966, to substitute the various names of the Respondent used in the proceedings for the name of the Board. The affidavit also exhibited a number of documents, including Board meeting minutes, which I will address later. Mr. Spencer stated that although Mr. Robinson had referred to the Respondent as TCD in the Hearing Bundle and as the Queen in his skeleton argument, the body that made the Decisions is the Board. He explained that TCD is sometimes asked to give the Board assistance, pursuant to section 30 of the MCA, but licensing functions belong to the Board. He exhibited documents relevant to this matter.

6 Section 28 of the MCA establishes the Board for the purposes of licensing the use of public service vehicles and it holds powers and discharges the duties conferred or imposed upon it by various section of the MCA and any other legislation.

7 Section 14(2) of the Crown Proceedings Act 1966 provides for the Court to grant an application by or on behalf of the Attorney-General for a minister or a government board to be substituted as the defendant to the proceedings if the Court thinks fit on such terms as the Court may determine.

8 Both Mr. Hill and Mr. Johnston agreed that the proper respondent is the Board. On that basis and on the circumstances of this matter, I was satisfied that I should exercise my discretion to substitute the Bord as the Respondent in these proceedings and I granted such application.

The Judicial Review Application and the Relief Sought

9 As a result of the Decisions, Mr. Robinson seeks judicial review of the Decisions which he submits were wrong in law.

10 The original relief sought by Mr. Robinson was as follows:

• a. An order of certiorari quashing the Decisions, declaring that the Decisions were wrong in law.

• b. Damages for the several debts and losses he incurred over the period 27 August 2019 to 1 August 2020 as a result of his License not being renewed, including:

  • i. Total lost earnings of $83,788.30;

  • ii. Total Expectation Loss of $27,214.77; and

  • iii. Debts incurred on loans from: (i) Ms. Mekisha Simmons in the amount of $1,795; and (ii) Mr. Paul Wilson in the amount of $100.

  for a total claim in damages of $112,898.07.

11 Mr. Hill submitted by way of his reply submissions and at the hearing on 27 March 2024 for the relief sought to be amended such that the application for certiorari in relation to the Decisions be replaced by a claim for a declaration of illegality and that the Decisions taken were ultra vires the MCA and, therefore, wrongful. The damages claim would remain. The amended relief sought was as follows:

• a. The Applicant, Mr. Robinson seeks a declaration that the decision taken on 20 August 2019, and renewed thereafter from time to time, to defer and/or not renew his application for the issuance of a PSVL was ultra virus the MCA on the grounds that the Board took into account matters it ought not to have taken into account and/or failed to take account of matters that it ought properly to have taken into account and/or failed to provide reasons for the decision taken and/or failed to follow the rules of natural justice and was therefore illegal.

• b. The Applicant, Mr. Robinson seeks a declaration that the decision not to remit his application to a Summary Court following indication of a wish to so do within 10 days of notification of the decision to refuse to grant the issuance of his Licence, dated 17 October 2019, was ultra virus the MCA, notwithstanding that no notification has been received of such refusal to date, nor the reason for the failure complained of and is therefore illegal.

12 Mr. Johnston objected to the amendments stating that the Court should proceed on the basis of the application for certiorari. However, I ruled that I would allow the amendment on the basis that I was cautious to proceed to grant a relief that Mr. Robinson no longer sought.

13 Mr. Hill also sought leave to amend the Form 86A to include an express request for leave to extend time in which to seek judicial review. I deal with the application to extend time and delay later in this Judgment where I have found that I will exercise my discretion to extend the time for bringing judicial review proceedings on the basis of there being a good reason to do so.

Statement of Grounds on which Relief is Sought

14 The Applicant's grounds are as set out below. The grounds were not amended in any way after the relief sought was amended.

15 Mr. Robinson sought to renew his Licence in August 2019 with the Board, which refused the application, without providing reasons.

16 Mr. Robinson filed the Grievance with TCD pursuant to sections 82 and 116 of the MCA. TCD was supposed to remit the Grievance to a Summary Court but failed to do so.

17 Mr. Robinson complains that he was never told why his application to renew his Licence was denied /deferred and why his request for his Grievance to be remitted to a Summary Court was not so remitted. However, Mr. Robinson states that he received unofficial oral communications that his application was deferred until the outcome of a pending criminal matter that had commenced against him. He complains that the unofficial oral communications were made to him despite the fact that he had instructed counsel on the matter who in turn had made many requests for the reasons for the Decisions.

18 Thus, the grounds upon which Mr. Robinson sought relief were as follows:

• a. Ground 1 – The Board failed to provide reasons for deciding to deny/defer the Applicant's application.

• b. Ground 2 – The Board failed to allow the Applicant to be heard, in relation to those reasons (if indeed any were rendered).

• c. Ground 3 – TCD failed to remit the matter to a Summary Court, after the Applicant followed the proper appeals procedure in relation to his Grievance.

• d. Ground 4 – The Applicant was never told why his Grievance was not remitted to a Summary Court, despite following the grievance procedure.

• e. Ground 5 – The Board deliberately waited for the conclusion of the criminal matter in which the outcome would not have had – or ought not to have had – any bearing on its decision in any event, as the type of offence, for which the Applicant was tried and acquitted, was not something which could have – or ought to have – been properly or fairly considered by the Board.

19 Thus, the Applicant averred that these were satisfactory and adequate grounds upon which TCD and the Board can be declared to have acted contrary to the law, and ordered to compensate him for damages suffered, that he now seeks, which flow directly from his inability to renew his License, despite his various efforts before and after the Board's denial/deferment.

The Evidence of the Applicant

Robinson 1

20 Mr. Robinson filed an affidavit sworn 1 March 2022 (“ Robinson 1”). He stated that he had been driving a taxi since May 2016. He had had some medical issues which on medical advice did not allow him to perform manual labour, so driving a taxi was a recommended occupation in order for him to earn a living.

21 Mr. Robinson referred to correspondence that flowed from TCD and then between his then counsel and officials of TCD in October 2019. I will turn to that correspondence in detail later but two letters of significance flowed between the parties as follows (I have emphasized some words by underlining them):

• a. A letter dated 17 October 2019 from Mrs. Jasmin Smith, Director of TCD to Mr. Robinson (the “ ...