Paponette and Others v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | SIR JOHN DYSON SCJ,LORD BROWN |
| Judgment Date | 13 December 2010 |
| Neutral Citation | [2010] UKPC 32 |
| Date | 13 December 2010 |
| Docket Number | Appeal No 0009 of 2010 |
| Court | Privy Council |
and Others (3)
[2010] UKPC 32
Lord Phillips
Lady Hale
Lord Brown
Sir John Dyson, SCJ
Sir Malachy Higgins
Privy Council
Appellant
Peter Knox QC
Ramesh Lawrence
Maharaj SC
Robert Strang
(Instructed by Collyer Bristow LLP)
Respondent
Alan Newman QC
(Instructed by Charles Russell LLP)
Introduction
The appellants are members of the Maxi-Taxi Association ("the Association") who own and operate maxi-taxis in Port-of-Spain, Trinidad. A maxi-taxi is defined by section 2 of the Maxi-Taxi Act 1992 Ch 48:53 as a public service motor vehicle with seating for not less than nine and not more than 25 passengers.
Trinidad has five maxi-taxi route areas, fixed by the Maxi-Taxi Regulations (No 109 of 1992). The members of the Association operate their maxi-taxis on routes 2 and 3. Until 1995 they operated from a taxi stand at Broadway in Port-of-Spain. They controlled and managed their own affairs and did not have to pay a levy or fee for the use of the taxi stand at Broadway, which was located on a public road.
In 1995 the government proposed moving the taxi stand for routes 2 and 3 from Broadway to a new location at the Port-of-Spain Transit Centre at City Gate in South Quay ("City Gate"). City Gate is situated on land owned by the Public Transport Service Corporation (PTSC). The PTSC is a body corporate established by the Public Transport Service Act 1965 Ch 48:02. It owns and operates the bus service in Trinidad and Tobago. At all material times, the maxi-taxi operators have regarded the PTSC as a competitor.
The Minister of Works and Transport, who is responsible for the management and operation of all taxi stands in Trinidad, held discussions with members of the Association, including the appellants, regarding the proposed move. The maxi-taxi owners and operators were reluctant to move, but in the end agreed to do so in reliance on assurances by the minister that (i) they would not be under the control or management of the PTSC; (ii) the National Insurance Property Development Co Ltd ("NIPDEC") would provide training so that the management of City Gate would be handed over to the Association within a period of three months: if NIPDEC within three months were to recommend that the Association was not ready for the responsibility of the management of the facility the period could be extended by three months; and (iii) a skywalk would be constructed to allow passengers a pathway from the city centre to City Gate. The Board will refer to these assurances as "the representations".
Following the relocation, between 1995 and 1997 NIPDEC managed the taxi stand at City Gate, but did not charge the maxi-taxi owners and operators a fee for their use of it. The management was not handed over to the Association. Instead, the government decided that the PTSC should take over the management and control of City Gate. To this end, the government introduced the Port-of-Spain Transit Centre (Public Service Vehicle Station) Regulations (No 227 of 1997) ("the 1997 Regulations") which gave the PTSC the responsibility for managing City Gate and the power to charge members of the Association for its use. The 1997 Regulations required the maxi-taxi owners and operators to apply to the PTSC for a permit to operate from City Gate.
The PTSC took over the management and control of City Gate in about 1998. Initially, members of the Association were not charged for its use. But since August 2001, they have been required to purchase a card which is used to activate barriers at the exit and to pay a fee of $1.00 for each exit journey. Three-quarters of the user fee is retained by the PTSC and one quarter is given to the Association.
The maxi-taxi owners and operators on routes 2 and 3 are the only maxi-taxi operators who are required to pay a fee to use their taxi stand. They are also the only maxi-taxi owners and operators who are required to apply to the PTSC (or any state agency or public corporation) for a permit and who are required to satisfy the PTSC that they are fit and proper persons to use the taxi stand.
The statutory framework
The Constitution of Trinidad and Tobago provides so far as material:
"4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely-
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
…
(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;
…
5 (1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared."
The 1997 Regulations were made under sections 101 and 105 of the Motor Vehicles and Road Traffic Act 1934 Ch 48:50 (as amended). Section 101 provides that the minister responsible for "Passenger Transport" may make regulations for the purposes of sections 102 to 106. Section 105(1) provides:
"(1) Regulations under section 101 may make provision generally as to the conduct of persons using a station and in particular–
(a) for appointing any place, being the property of the Corporation or being part of a road, a station for public service vehicles;
(b) in the case of a road, for authorising the Corporation to do all thing as are necessary to adapt the station for use as such, and in particular to provide and maintain waiting rooms, ticket offices, refreshment places and lavatories and other similar accommodation in connection therewith;
(c) for authorising the Corporation to make reasonable charges for the use of, or to let on hire to any person, any accommodation so provided; and
(d) for the use of any such accommodation.
(2) In this section 'Corporation' means the Corporation established under the Public Transport Service Act, and 'station' includes bus stops and coach stations and terminals that may be used by public service vehicles belonging to the Corporation as parking places."
Regulation 3(2) of the 1997 Regulations provides:
"The Corporation is authorised to make reasonable charges for the use of any accommodation on its property so provided."
Regulation 4 provides:
"(1) The owner or operator of a public service vehicle who desires to use the Transit Centre shall apply to the Corporation in the manner set out in Form 1 of the Schedule.
(2) Upon receipt of an application form under subregulation (1) and the payment of a fee of one hundred dollars from an owner or twenty-five dollars from an operator, the Corporation upon being satisfied that such owner or operator is a fit and proper person to use the Transit Centre shall issue to such owner or operator a permit in the manner set out in Form 2 of the Schedule."
The proceedings
The appellants filed a constitutional motion in the High Court on 24 August 2004. They claimed inter alia that (i) the actions of the state had frustrated their legitimate expectations of a substantive benefit in a way which affected their property rights protected under section 4(a) of the Constitution; and (ii) they had been treated unfavourably by the government as compared with other maxi-taxi owners and that they had thereby suffered a breach of their right to equal treatment under section 4(d) of the Constitution. In short, their section 4(a) case was that, by making the 1997 Regulations which authorised the PTSC to manage and control City Gate and charge its users a fee for the use of the facilities, the government had acted in breach of the representations. Their section 4(d) case was that the circumstances of the owners and operators of routes 1, 4 and 5 (the comparators) were not materially different from their own so that their difference in treatment was not justified.
The motion was supported by an affidavit sworn by the appellants on 21 and 23 August 2004. At appendix A of that affidavit are the names and signatures of several hundred other maxi-taxi owners and operators on whose behalf the appellants brought the motion. In the event, the appellants' affidavit was the only evidence before the High Court at the hearing of the motion, because the respondent failed to comply with the deadlines set for filing its evidence.
On 3 May 2006, Ibrahim J refused the respondent's application for leave to extend the time for filing affidavits to 2 May 2006. As a result the affidavit of Roger Israel on behalf of the respondent which was filed on 2 May 2006 was not admitted as evidence. On the same day Ibrahim J refused the oral application of the PTSC to be joined as a party to the proceedings.
Ibrahim J delivered his judgment on 20 June 2008. He granted declarations in the terms sought:
"(a) A declaration that the conduct and/or action of the executive arm of the State in permitting the Public Transport Service Corporation to impose a mandatory $1.00 user fee and/or levy on Maxi Taxi Owners and/or Operators per exit trip from the Port of Spain Transit Centre is unconstitutional, null, void and of no effect in that it contravenes their right and those they represent to the enjoyment of their property as guaranteed to them in section 4(a) of the Constitution of the Republic of Trinidad and Tobago.
(b) A declaration that the Applicants and those they represent have been treated unequally by the executive arm of the State in contravention of...
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