CJ's Touring Service Ltd Claimant v Saint Lucia Air and Sea Ports Authority Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | GEORGES, J. [AG.],Ephraim Georges,High Court Judge [Ag.] |
| Judgment Date | 05 May 2011 |
| Judgment citation (vLex) | [2011] ECSC J0505-2 |
| Date | 05 May 2011 |
| Court | High Court (Saint Lucia) |
| Docket Number | SLUHCV 2007/0265 |
IN THE HIGH COURT OF JUSTICE
The Hon. Mr. Ephraim Georges High Court Judge [Ag.]
SLUHCV 2007/0265
On 15th July 1983 the defendant, the Saint Lucia Air and Sea Ports Authority (SLASPA), a body corporate was established by Act of Parliament No. 10 of 1983 to provide in accordance with the Act and its regulations for co-ordinated and integrated systems of airports, seaports and port services in St. Lucia and to transfer to and vest in the Authority, the assets, liabilities and generally the functions of the St. Lucia Port Authority and the assets, liabilities and functions of the Airport Division of the Ministry of Communications and Works and for other matters relating thereto and connected therewith.
Subparagraph 1 of paragraph 19 of the Act empowers the Authority to levy charges and dues for the use of the facilities and services provided acting in accordance with the provisions of the Act and any regulations pertaining thereto.
Subparagraph 2 of the said paragraph states that:
"(2) Subject to the provisions of this Act the Authority may for the purpose of performing any of its functions under this Act do anything and enter into any transaction which in the opinion of the Authority is necessary to ensure the proper performance of its functions."
Subparagraph 3 of section 19 states (in part):
"(3) In particular and without prejudice to the generality of the provisions of subsection ( 1) and (2) it shall be the duty of the Authority to -
(a) operate the ports as appears to it best calculated to serve the public interest;
(b) regulate and control navigation within the limits of such ports and their approaches;
(c) maintain, improve and regulate the use of such ports and the services and facilities therein as it considers necessary or desirable.
'Port' for the purpose of the Act means an airport or a seaport."
Paragraph 19 of the Act concludes thus:
"Provided that the Authority may with the approval of the Minister authorize in writing any person, corporation or other body to carry out the functions stated in this paragraph subject to such conditions and restrictions as the Authority may consider desirable."
By without notice application pursuant to Part 56 of the Civil Procedure Rules 2000 dated 30th March 2007 the claimant applied for leave to make a claim for judicial review of the defendant's decision to create a monopoly in the Southern and Vigie Taxi Associations to do airport transfers and to confer on to the said associations power to regulate and control airport transfers.
The grounds of the application allege that:
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(1) The respondent/defendant having formulated the decision sought to give it regulatory force pursuant to section 73 of the Saint Lucia Air and Sea Ports Authority Act No. 10 of 1983 and sought to enforce it as such.
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(2) The regulations are ultra vires of Saint Lucia Air and Sea Ports Act No. 10 of 1983 in particular Section (73)( 1) and (6).
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(3) The regulations were in breach of natural justice.
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(4) The regulations are unreasonable and irrational.
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(5) The regulations are violative off the claimant's common law right to work and are contrary to public policy.
The application for leave for judicial review of the defendant's decision was supported by a 25-paragraph affidavit sworn by Kervin Mitchell which concluded by declaring that should leave be granted by the court to apply for judicial review of the defendant's decision it was the claimant's intention to seek:
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(a) A declaration that the defendant's decision was contrary to public policy; and
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(b) An order of certiorari to quash the decision of the defendant on the grounds of (i) ultra vires (ii) breach of the rules of natural justice and (iii) unreasonableness and irrationality.
By Order of the Court dated 17th May 2007 Madam Justice Sandra Mason QC granted leave to file a claim for judicial review and directed that the claim should be filed within 14 days.
The claim form was in fact filed with relief from sanctions and leave of the court on 22nd June 2007 seeking declarations that the purported regulations formulated by the defendant on 17th November 2005 were ultra vires the Act irrational and unreasonable and void of legal effect as they were formulated by an unlawful assembly or body not recognized by the Act.
The claimant sought further declarations contending that the said regulations were formulated in breach of natural justice since there was no consultation with him as a stakeholder in the tourist industry and that he had a legitimate expectation to be heard and he had been afforded no such opportunity. He claimed further declarations that the purported regulations were violative of his common law right to work and were contrary to public policy and that the defendant had acted in bad faith in the formulation of the said regulations which were aimed at creating a monopoly or alternatively the defendant in formulating the purported regulations did so for an improper purpose. An order of certiorari to quash the decision of the defendant to formulate regulations on the grounds of ultra vires unreasonableness bad faith etc. is also sought.
The gravamen of the claimant's case as emerges in his supporting affidavit is fully reflected in a letter dated Friday, December 23, 2005 from Vincent Hippolyte, General Manager of SLASPA ("the Authority") to the General Manager Copains Copines Tour Operators which was copied to no fewer than nine individuals or entities of SLASPA including the Deputy General Manager (Operations), the Chief of Ports Police, Director of Airports, Airport Managers, Port Police Inspectors-in-Charge Southern Taxi Association and Vigie Taxi Association and is reproduced below. It reads thus:
"Dear Sir/Madam
Re: Meeting Held at SLASPA's Conference Room, November 17 2005 on the issue of UnauthorizedOperations at the Airports
The Saint Lucia Air and Sea Ports Authority regrets that your organization was inadvertently omitted from the list of invitees to the above referenced meeting.
1. While the meeting was not attended by all who were invited the exercise proved worthwhile.
2. The meeting discussed the issue of the unauthorized operations of taxi/bus services at the Hewanorra International and George F L Charles Airport. All representatives had the opportunity to express their views and concerns on the issue and members were promisedthat following the meeting the St. Lucia Air and Sea Ports Authority would provide them with written guidance under which clients will receive taxi/bus service.
3. It was made abundantly clear at the meeting that SLASPA has a responsibility to ensure by virtue of the St. Lucia and Sea Ports Authority Act of 1983 that law and order is established at its airports and seaports at all times.
4. While we must acknowledge that the present day technology affords many people business opportunities within the tourism industry we must never lose sight of the fact that SLASPA has the responsibility to regularize all the activities that take place at its airports and seaports while giving due recognition to persons who have used the internet to contract business.
5. Towards ensuring that law and order is maintained at the airports during the dispensation of taxi/bus services the Saint Lucia Air and Sea Ports Authority has granted concessions to Southern Taxi Association and the Vigie Taxi Association to provide a regularized taxi/bus service at Hewanorra and George F L Charles Airport respectively.
Consequently any other commercial operation of taxi/bus service at any of the airports would be illegal.
However any organization/agency/persons who have secured any arrangement for commercial taxi/bus service from any of the airports will satisfy his/her clients by observing the following:
1. The entity will contact the executive of the Southern or Vigie Taxi Association depending on whether the clients will be arriving at Hewanorra International or George F L Charles Airport sufficiently in advance of the clients' arrival.
2. Inform the respective taxi association of the expected date of arrival and service required by the clients.
3. Enter into an arrangement with the respective taxi association for the transportation of the clients from the airports to the destination that will be mutually beneficial to the organization/agency/persons and the respective taxi association.
This arrangement can involve either the respective taxi association transporting the clients for an agreed fee or the contractor of the business providing the transportation service and an agreed fee paid to the respective taxi association based on the number of passengers involved.Alternatively the two parties can agree that the association and the contractor provide the service and are both compensated accordingly.
4. Once an agreement has been reached the respective taxi association shall inform the Ports of Police Inspector at the relevant Airport of the arrangement in place so the pickup can facilitated.
It must be noted that failure on the part of the parties to reach an agreement that provides for an otherwise non-authorized taxi to make a pick-up will result in the Ports Police at the Airport not allowing the pick-up to be effected.
This is in compliance with section 73 (1) (b) of the Saint Lucia Air and Sea Ports Authority Act. No. 10 of 1983 and the Airport Regulations Statutory Rules and Order No. 42 of 1976 which among other things allow the authority to make regulations for the control of persons and vehicles using the airports the maintenance of order thereon and the admission or exclusion of persons using the airports.
The Saint Lucia Air and Sea Ports Authority therefore solicits the cooperation of the general...
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