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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1988) 3 CLR 1102
1988 May 28
[STYLIANIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
KATERINA PAPAEFSTATHIOU,
Applicant,
v.
1. REVIEW LICENSING AUTHORITY,
2. MINISTRY OF COMMUNICATIONS AND WORKS,
Respondents.
(Case No. 736/85).
Road transport-The Road Transport Regulation Law, 1982, as amended-Review Licensing Authority-Powers-Section 4A(4).
Road transport-The Road Transport Regulation Law, 1982, as amended-Cars hired without a driver-Whether section 5(a) applicable to licences in respect thereof-Question determined in the affirmative.
Road transport-The Road Transport Regulation Law, 1982, as amended, section 5(a)-"Carries on" (μετέρχεται) and "intends to carry on" transport business as his main occupation-Turning down application for licences in respect of Z cars on ground that applicant does not "carryon" transport business as her main occupation-Misconception of law, because the respondents addressed their mind to the first leg of the prerequisite "carries on" andfailed totally to address their mind to the second leg "intends to carry on"-This minsconception led to lack of due inquiry as to thefacts relevant to the second leg.
Misconception of facts-Taking into consideration nonexistent facts or the non taking into account of existing facts-Failure of due inquiry causing lack of knowledge of a material fact amounts to a misconception-Findings of fact by the Administration-Presumption as to their correctness-Creating doubt in the mind of the Court is sufficient to displace the presumption-The two alternative courses that the Court may follow in such a case.
The applicant is the owner of a small tourist business. She applied for 21 licences for Z cars. At the time of such application she, already, owned 4 such cars. The respondents dismissed applicant's hierarchical recourse against the relevant negative decision of the Licensing Authority. The dismissal was based on the ground that the applicant "does not carry on" transport business as her main occupation.
The sub judice decision was annulled on·the following grounds, namely:-
a) Misconception of law. The relevant reasoning is adequately summarized in the hereinabove headnote.
(b)Lack of due inquiry, which was the result of such misconception.
c) Misconception of fact, in that applicant succeeded in creating a doubt as to the correctness of the finding that she does not "carry on transport business as her main occupation". The principles analysed by the Court as regards "misconception of fact" are sufficiently summarized in the hereinabove headnote.
Sub judice decision annulled.
No order as to costs.
Cases referred to:
Skarosv. The Republic (1986) 3 C.L.R. 2109;
Republic v. Georghiades (1972) 3 C.L.R. 594;
L. and G. Iacovides Enterprises Ltd. v. The Republic (1986) 3 C.L.R. 2101;
Photiades and Co: v. The Republic, 1964C.L.R. 102;
Christodoulou v. The Republic (1986) 3 C.L.R. 2243;
Leda Travel Ltd. v. The Review Licensing Authority (1986) 3 C.L.R. 1742;
"ARISTODEMOS" Real Estate Agency Ltd. v.The Republic (1987) 3 C.L.R.767.
Recourse.
Recourse against the dismissal of applicants hierarchical recourse against the decision of Licensing Authority to reject applicants applications for the issue of licences for "Z" cars.
K. Talarides, for applicant.
M. Tsiappa (Mrs.), for respondents.
Cur.adv. vult.
STYLIANIDES J. read the following judgment. The applicant by this recourse seeks the annulment of the decision of the Respondents, whereby they dismissed hierarchical recourse No. 76/1985.
The applicant carries on business in Polis Chryssochou under the name "FONTANA TOURS". She is hiring self-drive cars and renders services to tourists.
The applicant applied to the Licensing Authority for the grant to her of licences for 21 vehicles without a driver.
The Paphos District Transport Inspector, on 7th April, 1984, prepared a report (Appendix 2 to the opposition). This Inspector in that report stated that the occupation of the applicant is "Hiring (Ενοικιάσεις) and Tourist Office"; that the applicant exercises the occupation of hiring of "Z" cars since 1983; she was the owner of four "Z" cars, the numbers of which are quoted. Actually the applicant in 1983, applied for the licences for "Z" cars, they were granted to her by the Licensing Authority, but, in a hierarchical recourse by others, the number was reduced by the Minister (the competent Authority at the time) to four.
The applicant presented viva voce her case before the LicensingAuthority. The Licensing Authority rejected all the applications,including that of the present applicant, on the ground that"Z" cars existing in Cyprus could adequately serve the needs ofthe country.
The Applicant, on 25th January, 1985, filed a hierarchical recourse to the Respondent - Review Licensing Authority.
The Respondents on 4th April, 1985, heard counsel for the applicant who argued in extenso the case for his client (see Appendix 7).
The Respondent Authority dismissed applicant's hierarchicalrecourse and refused the grant to the applicant of licences for hiring without a driver in relation to 21 vehicles, or anyone. This is the sub judice decision which reads as follows:-
"Αποφασίζεται η απόρριψη της προσφυγής διότι από τα ενώπιον της στοιχεία η Αναθεωρητική Αρχή Αδειών έχει πεισθεί ότι το κύριο επάγγελμα της προσφεύγουσας είναι η διεξαγωγή τουριστικών επιχειρήσεων και κατά συνέπεια δεν πληροί τις προϋποθέσεις του άρθρου 5 εδάφιο 9 του Νόμου."
A hierarchical recourse is not intended to review the correctnessof the hierarchically subordinate organ's decision by referenceto the soundness of the reasoning propounded in supportthereof but, to establish a second tier in the decision-taking process, designed to eliminate mistakes as well as abuse of authorityby subordinates. Both organs in the hierarchy are charged with the same duty - to promote the objects of the law by the application of its provision in particular cases. Generally, it is competentfor the body exercising powers in a hierarchical recourse, to review the legality of the decision taken in the first instance - (Tsatsos- Administration and the Law, (1979), p. 63; Stassinopoulos-Law of Administrative Acts, (1951), p. 177 et sequence).
The power of the Licensing Authority is set out in section 4A-(4) as follows:-
"(4) Η αναθεωρητική αρχή αδειών δύναται να εκδώσει μίαν των ακολούθων αποφάσεων:
(α) να επικυρώση την προσβληθείσαν απόφασιν.
(β) να ακυρώση την προσβληθείσαν απόφασιν.
(γ) να τροποποιήση την προσβληθείσαν απόφασιν.
(δ) να προβή η ιδία εις έκδοσιν νέας αποφάσεως εις αντικατάστασιν της προσβληθείσης.
(ε) να παραπέμψη την υπόθεσιν εις την αρχήν αδειών, διατάσσουσα τούτην να προβή εις ωρισμένην ενέργειαν."
("The Review Licensing Authority may issue any of the following decisions:
(a) to confirm the challenged decision;
(b) To annul the chaIlenged decision;
(c) To modify the challenged decision;
(d) To issue a new decision in substitution of the challenged one;
(e) To sent the case back to the Licensing Authority ordering the latter to do certain act.")
The material before the Respondents was the file of the LicensingAuthority in which the report of the Paphos Transport Officerand the statement of the applicant before the Licensing Authority were included, and the oral representation of Mr. Talarides.
The applicant had already four "Z" cars. She applied for 21more. She had a small tourist office in Polis Chryssochou. In heroral evidence before us she stated that 70% of her income was from the hiring of "Z" cars and 30% only from the other branchof her business. The sub judice decision, however, has to be reviewed only on the material before the Respondents.
Mr. Talarides stated clearly and eloquently to the Respondents that one of the branches of the applicant's business was the hire of self-drive cars. He referred to the provisions of section 5(9) and he produced a number of letters addressed to the applicant, asking her to make available to clients "Z" cars. He said that his client satisfies the requirements of sub-section 9 of section 5.
It was submitted by Mr. Talarides both in his written and oraladdress before this Court that the sub judice decision is vulnerable,as it is tainted with misconception of fact and law, and that paragraph 9 of section 5 does not apply to licences in relation to self-drive cars.
Having regard to the wording of this section, to the definitionof "public use" vehicle and "vehicle hired without a driver", I find no merit in this submission.
Section 5(9) of the Motor Transport Regulation Laws 1982 and 1984 (Laws Nos 9/82 and 84/84) reads as follows:-
"(9) Ουδεμία άδεια οδικής χρήσεως θα χορηγήται αναφορικός προς οιονδήποτε όχημα δημοσίας χρήσεως προς εκτέλεσιν οιασδήποτε χρήσεως δι' ήν απαιτείται τοιούτον όχημα δυνάμει των διατάξεων του παρόντος Νόμου, εκτός εάν ο ιδιοκτήτης τούτου πείση την αρχήν αδειών ότι μετέρχεται η προτίθεται όπως μετέλθη την μεταφορικήν επιχεί- ρησιν ως κύριον αυτού επάγγελμα"
("No road service licence shall be granted of any public servicevehicle for the service of any road for which such vehicle is required under the provisions of this Law, unless its owner persuades the Licensing Authority that he carries on or intends to carry on transport business as his main occupation."
Licences are granted to persons who carry on, or intend to carry on as their main occupation the transport business.
The Respondents misconceived the law by directing their mindto the first leg only -"μετέρχεται "(he carries on) - and they failed totally to address their mind to the second leg - "προτίθεται όπως μετέλθη" (or intends to carry on). This is a misconcepion of law, which is a ground for annulment.
Misconception as to·facts may consist of either the taking intoconsideration of non existing facts or the non taking into accountof existing facts; failure to make a due·inquiry causing lack of knowledge of material facts amounts to misconceoption of fact. (Skaros v.The Republic (1986) 3 C.L.R. 2109).
The evaluation of the facts is within the discretionary power of the Administrative Authority. An Administrative Court can only interfere if there exists an improper use of the discretionary power or a misconception concerning the factual situation or the non taking into account of material factors.
The Court cannot substitute is own evaluation for that of theAdministration. There is a presumption in favour of the correctness of the finding of fact by the Administration. This presumption is weakened, once the applicant succeeds in rendering possible the existence of misconception of fact on the part of the Administration, even by creating doubts in the mind of the Courtabout the correctness of such findings of fact. In such a case, the Administrative Judge, finding himself in doubt, resorts to one of two courses. Either (a) directs production of evidence, or (b) heannuls the act so that the Administration may ascertain the actual circumstances in a way not leaving doubts - (Republic (PublicService·Commission) v.LefkosGeorghiades, (1972) 3 C.L.R.594; L.&G.lacovides Enterprises Ltd. v. The Republic (1986) 3C.L.R. 2101).
An Administrative Authority has a duty to make a reasonably necessary inquiry for the purposes of ascertaining the correctfacts to which the relevant legislation is to be applied. The ascertainment of the true factual situation is one of the four necessarysteps in that making of an administrative act, as follows: the study and, if necessary, interpretation of the relevant legal provisions; ascertainment of the correct facts; application of the law to thefacts; and decision on the course of action. (Vide "The Law ofAdministrative Acts" by Stassinopoulos (1951) p. 249; PhotosPhotiades and Co. v. the Republic of Cyprus through the Ministerof Finance, 1964 C.L.R. 102, at pp. 112-113).
The Respondents failed to carry out the reasonably necessaryinquiry for the purposes of ascertaining the correct facts to whichthe relevant legislation is to be applied, due to the misconception of the relevant legal provisions. Furthermore, there is a doubt in the mind of the Court about the correctness of the findings of fact by the Respondents with regard to the main occupation of the applicant at the material time.
The cases of the Supreme Court Nestoras Christodoulou v.The Republic (1986) 3 C.L.R. 2243; Leda Travel Ltd. y.The Review Licensing Authority (1986) 3.C.L.R. 1742; "ARISTODEMOS"Real Estate Ltd. v. The Republic (1987) 3 C.L.R. 767 are distinguished from the present in that:-
(a) The Respondent Authority was not convinced that the applicantswere carrying or intend to carry on the business of transport as their main occupation.
(b) The applicants in those cases were carrying diverse occupations,but definitely not to any extent the occupation required by paragraph 9 of section 5 of the Law.
For the foregoing reasons, the sub judice decision cannot survivejudicial control. It is hereby declared null and void and of no effect, but, in all the circumstances of the case, I make no order as to costs.
Sub judice decision annulled.
No order as to Costs.