The Appeal Tribunal Encourages Objectors
Page 45
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By Humphrey Cooke,
Solicitor
Unreasonable Burden of Proof Placed on Harassed Applicants. A Suggested Amendment to Section 11 T/NT its issue dated January 24, The 'Commercial Motor surprised the industry by announcing that a blunder has been made by Parliament in the wording of Section 11 (2) of the Road and Rail Traffic Act, 1933. It was stated that Parliament intended that the word "suitable " should qualify the transport facilities provided by the objector, rather than the transport facilities in the district or between the places where the applicant operates.
No doubt, if the word had been inserted in the right place, applicants might have been assisted to some extent. But would it have prevented the host crf objections from the railways, which are such a prominent feature at every licensing court? How could it have done so, so long as the Act receives the interpretation placed upon it by the Appeal Tribunal?
Legal Interpretation.
When the Bill was before Parliament, it was felt by those best qualified to judge, that ,appeals from decisions of the Licensing Authority should lie to a properly constituted court, rather than to the Minister of Transport, who would not be bound by legal rulings, but would act administratively, as he does on the passenger side. That Tribunal should be charged with the legal interpretation of the Act. Lawyers welcomed this decision, because they felt that a legal court could lay down a structure which would assist them in giving effect to the views of Parliament, as expressed in the Act.
As time has passed, and decisions, one after another, of the Appeal Tribunal have been given, a feeling of, disquiet has arisen amongst those practising in goods licensing work. Are the principles successively evolved by the Appeal Tribunal, and the structure which the Tribunal has built up, really the legal and logical outcome of the wording of the Act?
To take one example, would the principles laid down by the Tribunal in the case of the L.N.E.R. and Sanderson (commonly known as the Loftus ease), distinguishing and giving preferential treatment to a railway company as against the ordinary operator, be upheld were it possible for the Tribunal's decision to be reviewed in a Court of Law?
Again, take the case of the L.N.E.R. and Briggs, where the Tribunal held that the enlargement of a carrier's tonnage cannot be justified by general evidence of an increase in his business and general evidence that that increased business cannot be handled by other carriers. Is not something being read into the Act that is not there?
One could go on indefinitely with instances, taken at random, of the divergence of the Tribunal's outlook from that of the ordinary man reading the Act and trying to apply it.
It may be that the Ministry of Transport endeavours to carry out a policy of encouraging the railways: but surely the whole point of setting up a legal Tribunal is to divorce it and its decisions from policy, and to see that the Act, as it stands, is interpreted in a legal manner, without suspicion of bias in any direction?
This brings us to what can only be called the extraordinary decisions in the case of the L.N.E.R. and Burgess, followed by that of McLachlan and Morgan. How can these decisions that the burden of proving an objection under Section 11 (2) of the Act does not lie on the objector, but that the onus of disproving the objection falls on the applicant, be justified, on any consideration of the Act, or any legal principle?
Hardship to Applicants.
It is true that an applicant must prove his case, but, then, surely he has discharged the whole burden which lies upon him? To go on and say to the applicant, "Whatever objection may be lodged by any objector must be disproved by you, in addition to your proving your own case," is to place the unfortunate applicant in the absurd position of having to prove a negative.
The wider the allegations made by an objector, the more the applicant has to disprove. Anyone who has ever seen a G.W.R. objection will at once realize that he has to disprove, amongst other things, that frequent freight trains are run daily from goods and passenger stations to make connection with the main-line express services, that bulk loading and railhead delivery are an efficient form of distribution service, and, to crown all, that "-the railway companies' facilities to and from the area of this base are not being fully utilized."
For the applicant now to have to disprove, in addition, that the objectors are already 'providing suitable transport facilities in the district, might well be the last straw.
No, a more radical amendment of Section 11 (2) than that suggested in The Commercial Motor is necessary. It is with some diffidence that the following is suggested :—
How to Amend Section 11.
Section 11 (2). "It shall be the duty of the Licensing Authority, on an application to which this section applies, to take into consideration any objections to the application which may be made by persons who prove to the satisfaction of the Licensing Authority that they are already providing suitable facilities, whether by means of road transport or any other kind of transport, for the carriage of goods for hire or reward in the district, or between the places, which the applicant intends to serve, on the ground that suitable facilities in that district or between those places are already being provided by such objectors and that if the application were granted, suitable transport facilities would be, either generally or in respect of any particular types of vehicles, in excess of requirements, or on the ground that any of the conditions of a licence held by the applicant has not been complied with."
I suggest the addition of the existing proviso to the sub-section, and with the following further proviso "Provided further no burden shall be cast upon the applicant to disprove any objection lodged against his application or any statement contained in such objection, but it shall be for the applicant and objector each to prove his respeCtive case."