clr/1987/1987_3_181.pdf

(9)—Hinng ofcarswithoutadnver—Applicationforalicencefor, refused on ground that applicant did not intend to cany on the business of hinngcars without a dnver as his mam occupation—In the circumstances sub judice decisionreasonablyopen to the respondent Authonty AdministrativeLaw—Discretion ofAdministration, exerciseof—Judicialcontrol— Pnnciplesapplicable TheapplicantisaCypnotlivingwith hisfamily inEngland OnthelO 12 84 the applicant submitted applications for the grant of licences for cars hired without adnver inrelationto20 vehicles TheLicensing Authonty dismissed theapplicationontheground thatthe needsof Cyprus in«2» carsare satisfied by theexisting numberof licences As a result the applicant filed a hierarchical recourse to the respondent Authonty -The respondent Authonty dismissed the said recourse on the ground that«ithasnotbeen satisfied thattheapplicantintendstocarryoutthe business of hinng cars without a dnver as his main occupation and in consequencehedoes notsatisfy theprerequisites of section5,sub-section

(9)of the Law» Hencethepresent recourse It should be noted that in the course of the heanng of the hierarchical recourse applicant'scounselstated thattheapplicantcouldonly afford tobuy 6 or 7 cars Held, dismissingthe recourse

(1)This Court does not substitute its own discretiontothatof the appropnateadministrative organ What thisCourthas to examine is whether the discretion was properly exercised and whether in the circumstances it was reasonably Open tothe organ concernedto take its" decision 181 Nlcolooa v. Republic

(2)The relevant provision ofthe lawissection5

(9)of theMotorTransport Regulation Laws 1982-1984.The question iswhether theapplicant satisfied the Authontythathe wasapersonfallingwithintheprovisionsof sub-section 9 of section 5.

(3)Beanng in mind the statements by applicant's counsel before the respondents and the fact that applicant was not a repatriated Cypriot, the Court came to the conclusion that the sub judice decision was reasonably open tothe respondents. 5 Recourse dismissed. £50 costsinfavourofrespondents. 10 Recourse. Recourse against the dismissal of applicant's hierarchical recourse against the refusal of the Licensing Authority to issue licences to the applicant inrespect of 20 carsto be hired without a driver. S. A. Karapatakis,for the applicant. M. Tsiappa (Mrs.), for the respondent. Cur.adv. vutt. SAWIDES J. read the following judgment. The applicant by thisrecourse prays for the following relief: 20 A.Adeclaration of the Courtthattheactand/ordecision ofthe . respondentcommunicated totheapplicantbyletterdatedthe2nd July, 1985 whereby hishierarchical recourse againstthe decision of the Licensing Authority torefuse the issueto himof licencesin respect of 20 cars to be hired without a driver {Z cars), was 25 dismissed and the refusal togrant thesaid licencestohimare null and void and of no legal effect. The grounds of law advanced by his counsel in support of the application are thatthesubjudicedecision isnotdulyreasoned,it was taken under a misconception of fact, in the wrong exercise 30 andabuseoftherespondent'sdiscretionarypower,contrarytothe rules of good administration and/or natural justice and that it is illegal. The facts of the case are asfollows: The applicant isa Cypriot livingwith hisfamily in England and 35 182 15 3 C.L.R. Nicolaou v.Republic S a w l d e a J. working there asanemployee ina factory.Till 1974when he left for England, he was employed at the Cyprus Transport Control Office. On the 10th December, 1984 the applicant submitted applications forthegrantoflicencesforcarshiredwithoutadriver 5 inrelation to20vehicles. A report was prepared by the District Transport Controller containing details about the applicant. The Licensing Authority having taken into consideration all the facts and circumstances relating to the applications, decided at its meeting of the 12th 10 February, 1985, torefuse the grant of the licencesapplied for on the ground thattheneedsofCyprusin«Z»carsaresatisfied bythe existing number of licences, and informed the applicant accordingly, byletter dated the22nd February, 1985. The applicant on the 8th March, 1985 filed a hierarchical 15 recoursetotheLicensingReviewAuthorityagainstthedecisionof the LicensingAuthority. The Respondent Licensing Review Authority met on the 23rd April, 1985 and after having heard what was said by counsel on behalf oftheapplicant, decided, onthe24th May,1985todismiss 20 the said recourse. The decision of the respondent was communicatedtotheapplicantbytetterdatedthe2ndJuly,1985. Thesubjudice decision readsas follows: 25 «The Licensing Review Authority having studied all materialfromtherelevantfilesandeverythingthatwassaidby .the applicant'sadvocate, decidestodismissthe recourse asit has not been satisfied that the applicant intends to carry out the business of hiring cars without a driver as his main occupation and1 in consequence he does not satisfy the prerequisites ofsection 5,sub-section

(9)of the Law.» 30 Byhiswritten address counsel for applicant expounded on his contentions that the sub judice decision was vague and/or defective, that there was a misconception of fact and that the respondentactedinexcessofitspowers.Hecontendedthatunder the provisions of the relevant law licences should be granted to 35 personswhoareengaged orintendtobeengaged inthe transport businessastheirmainoccupation and thattheapplicant had such an intention and the transport business was in fact the only businessinwhichhehadexperienceandtherespondent wrongly 183 S a w i d e s J. Nicolaou v. Republic

(1987)refused the said licences on the ground thatthe applicant did not satisfy the provisions of the law Counsel for the respondent by her written address contended that the sub judice decision was issued in the exercise of the statutory powers with which the respondent was vested and that 5 the hierarchical recourse isnotajudicial proceeding inany sense nor is it intended to review the correctness of decisions of the hierarchically subordinate organ, but is a second tier in the decision-taking process designed toeliminate mistakes as well as abuse of authority by subordinates Both organs in the hierarchy 10 are charged with the same duty topromote the objects of the law by the application of its provisions inparticular cases What the Court has to consider, counsel submitted, is whether itwas reasonably open totherespondent,inviewof the provisions of the law and the material before it to reach the sub judice 15 decision In her submission, it was reasonably open both to the Licensing Authority and the respondent in dealing with the hierarchical recourse, in the light of the matenal before them and the statements made by applicant's counsel, to come to the conclusion thattheapplicantdidnotsatisfy theprerequisites set up 20 in section 5

(9)of the law, thatis, thathe did notpropose to carry on the business of hinng vehicles without a dnver as his main profession Ithas been repeatedly stressed thatthiscourtwhen dealing with the exercise of discretion by an organ in which a discretion is 25 vested, has to examine whether such discretion was properly exercised and whether mthecircumstances of a particular case it was reasonably open to the organ concerned totake its decision. This Court is not to substitute its own discretion to that of the Λ appropnate organ Beanng inmindtheabove pnnciples, thequestion which poses for consideration before me is whether itwas reasonably open to the respondent to decide, as it did Counsel for applicant contended thatpnortotheTurkish invasion, though theapplicant was a civil servant, he had a number of «Z» cars which were 35 registered in the name of his father, who livedin Kyrenia and who was engaged in the hinng of such cars After theTurkish invasion theapplicantleft for Englandandhisfathersold thelicences forthe «Z»cars at£50 -each, thus,infact trading such licences 184 *" 3 C.L.R. 5 Nicolaou v. Republic S a w i d e s J. In answenng the questions put to his counsel at the hearing before the respondent atwhich the applicant was notpresent, his counsel stated on his behalf, that the applicant was living in London, working ma factory there,his family was livingwithhim in London and that although he was applying for 20 licences he could only afford buying six or seven cars The relevant Law is the Motor Transport Regulation Laws, 1982-1984 Sub-section

(9)of section 5 provides as follows 10 15 20 «

(9)Ουδεμία άδεια οδικής χρήσεως θα χορηγηται αναφορικώς προς οιονδήποτε όχημα δημοσίας χρήσεως προς εκτέλεσιν οιασδήποτε οδικής χρήσεως δΓ ην απαιτείται τοιούτον όχημα δυνάμει των διατάξεων τ ο υ παρόντος Νόμου, έκτος εάν ο ιδιοκτήτης τ ο ύ τ ο υ πείση την αρχήν αδειών ότι μετέρχεται ή προτίθεται όπως μετέλθη την μεταφορικήν επιχείρησιν ως κυριον αυτού επάγγελμα». («Noroad use licencewillbe issued inrespect of any public vehicle for effecting any road use for which such vehicle is required under the provisions of this Law, unless its owner persuades the licensing authonty that he professes or proposes to profess the transport business as his main occupation») Thequestion iswhether theapplicantsatisfied theAuthontythat 25 he was a person falling within theprovisions of sub-section

(9)Beanng inmindthestatementsmade concerningtheapplicant, by his counsel, and the fact thatatthe material timethe applicant was not a repatnated Cypnot intending to start a business of selfdrive carsashismainbusiness, butwas residing inEnglandwithhis 3C family and working there since 1974 when he settled inLondon, Ihave come to the conclusion thatitwas reasonably open tothe respondent todecide as itdidand Ifind noreason tointerfere with its decision The recourse is, therefore, dismissed with £50 - costs in favour 35 of the respondent Any previous orders for costs are hereby set aside Recourse dismissed Applicant topay£50 -costs 185