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Proceedings not authorized by law

22nd April 1966, Page 47
22nd April 1966
Page 47
Page 47, 22nd April 1966 — Proceedings not authorized by law
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Which of the following most accurately describes the problem?

Transport Tribunal, in a reserved

written judgment, has dismissed the appeal of John Hodgson Haulage Ltd. against the refusal to grant four artics on A licence by the Northern Licensing Authority (COMMERCIAL MOTOR, April 1).

The Tribunal notes that in August, 1965, a document on Form GV IA purporting to be an application in the name of the then nonexistent company for an A licence in continuation of an existing licence issued to a Mr. J. W. Hodgson was lodged with the Northern LA. The company was not incorporated until September 13, 1965, but there was nothing on the face of the application document to indicate that the applicant was non-existent, and in due course a licence was issued to the company and that held by Mr. Hodgson was surrendered.

On October 18, 1965, by which time the appellant company was a "properly constituted body corporate", an application to vary the licence by adding four vehicles to it was made. But on January 5, 1966, when the case was presented, the LA refused it. The appellants appealed against that decision.

After a lengthy review of the relevant clauses of the Road Traffic Act of 1960, the Tribunal says: "If we are right in our view that the application in this case was made on October 18, 1965, and not on January 5, 1966, it was an application which did not comply with the requirements of S.176(1) because the appellant company was not on October 18, 1965, the holder of a carrier's licence. Mr. Schiemann's alternative argument was that, even if the application was invalid when it was made, it became validated on November 5, 1965, when the appellant company became the holder of a Carrier's licence.

"In our view this argument is unsound. The grant did not perfect the appellant company's right to make an application and relate back to October 18. The power of the LA is to 'vary the licence'. ."

The judgment continues: "That licence never was held by the applicant company. The licence which the applicant subsequently held was not in existence on October 18, 1965, and the licence referred to in the application had ceased, to exist by the time the LA came to hear and determine the application on January 5, 1966.

"This was more than a mere irregularity in procedure: it was the institution of proceedings not authorized by law. As Scott,

L. J., said of the writ in Ingall v. Moran . . . 'It was born dead, and could.not be revived'."

The Tribunal concludes that "there was no valid application before the LA at any time and that, if he had purported to vary the licence held by the apriellant company from November 5, 1965, onwards, he would have been acting without jurisdiction".

The Tribunal stresses that it reached its conclusion reluctantly, "for a decision based on a technical point, fascinating though it may be to a lawyer, can only be regarded by the party at fault as a misfortune".


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