Anthony v New Zealand Transport Authority

[2021] NZHC 1374

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000988

[2021] NZHC 1374

IN THE MATTER

of an application for interim relief under the Judicial Review Procedure Act 2016

BETWEEN

RAJESH ANTHONY

Applicant

AND

NEW ZEALAND TRANSPORT AUTHORITY

Respondent

Hearing:

(on the papers)

Judgment:

10 June 2021

Reissued:

11 June 2021

Redacted for Publication

JUDGMENT OF VENNING J

This judgment was delivered by me on10 June 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Ormiston Legal, Auckland Counsel:   R S Pidgeon, Auckland

ANTHONY v NEW ZEALAND TRANSPORT AUTHORITY [2021] NZHC 1374 [10 June 2021]

[1]The Registrar has today referred this file to me as duty Judge.

[2]        The applicant Rajesh Anthony seeks interim relief under the Judicial Review Procedure Act 2016. Specifically he seeks orders declaring his licence endorsements and appointment as a vehicle testing officer and instructor be deemed to continue in force until his application for judicial review of the suspension imposed by the New Zealand Transport Agency (NZTA) has been determined, together with related orders.

[3]        The applicant is the director of Truck Licence South Auckland Limited. His business involves him assessing drivers of trucks and buses.

[4]        On a personal front he and his wife are in the midst of a marriage breakdown after a relationship of 18 years. According to a police summary of facts on 10 March 2021 he and his wife argued about their financial issues and separation. Mr Anthony is alleged to have then made the threat which supports the charge that has been laid against him.

[5]        When the incident was drawn to the attention of the NZTA by the Police the NZTA wrote to Mr Anthony on 15 March 2021. NZTA advised that its initial response was not to take action in regard to Mr Anthony’s endorsements at the time. However, the NZTA reserved the right to review his fit and proper status at the conclusion of the Court proceeding.

[6]        Despite that advice, a week later, on 22 March 2021 the NZTA wrote again to Mr Anthony, this time suspending him from driving any vehicle used in a passenger service (other than a rental service) as follows:

(a)IMMEDIATELY suspend you from driving any vehicle used in a passenger service (other than a rental service), undertake any driving instructor and testing officer duties; and

(b)SUSPEND your driver licence number DH485269 in respect of its passenger, driving instructor level 1,2,3,4, & 5 and testing officer endorsements only; and

(c)PROHIBIT you from driving any vehicle being used in a passenger service (other than a rental service), driving instructor and testing officer duties for the period of this suspension.

[7]        Mr Anthony engaged in correspondence with the NZTA but it confirmed his suspension in a letter of 5 May.

[8]        Section 15 of the Judicial Review Procedure Act 2016 empowers the Court to make an interim order if in the Court’s opinion it is necessary to do so to preserve the position of the applicant. Section 15(2)(c) includes in the term “interim orders”, orders declaring that any licence that has been suspended in the exercise of a statutory power continues.

[9]        In Foreman Automotive Ltd v New Zealand Transport Agency Katz J reviewed the application of interim relief in relation to the suspension of licences by the NZTA and concluded:1

[24] In summary, the approach involves two steps. First, the Court must consider whether the statutory threshold is met (that orders are necessary to preserve the position of a party). Secondly, the Court has a wide discretion as to whether the grant of relief is appropriate. The exercise of that discretion will usually involve considering all of the circumstances of the case. In this case the key considerations are the strength of the judicial review claims, the particular statutory context, and the private and public repercussions of granting relief.

[10]      The basis of the suspension in the present case is that the NZTA considers Mr Anthony is not regarded as being a fit and proper person to hold the passenger endorsement driver instructor levels 1, 2, 3, 4 and 5 because of the charge he faces.

[11]      The suspension is under ss 87D, 87E, 87F, 87G and 30C of the Land Transport Act 1998.

[12]      When assessing whether a person is a fit and proper person the director is required to take into account under s 30C:

(a)the interests of public safety; or

(b)to ensure the public is protected from serious or organised criminal activity.

1      Foreman Automotive Ltd v New Zealand Transport Agency [2013] NZHC 1167.

[13]      In the present case the interests of public safety is the issue. On the information before the Court at this time the incident involving Mr Anthony seems to be a one-off isolated incident clearly directed to the domestic circumstances involving his wife and himself. Arguably on the face of it, it does not call into question the interests of public safety.

[14]      Mr Anthony has set out in his affidavit the significant impact on him if he is unable to work. He has been living off his savings since his licence was suspended.

[15]I accept the threshold is met.

[16]I then turn to the exercise of the discretion.

[17]      On Mr Anthony’s evidence he has engaged with over 400 people in the course of his work without any relevant issues or concerns. As noted, the incident was a domestic incident involving a threat. There is no suggestion Mr Anthony poses a risk to public safety generally.

[18]      On balance Mr Anthony satisfies the Court that interim orders are necessary to preserve his position at least until the matter can be considered in full on an on notice application and the NZTA have the opportunity to respond.

Result

[19]      The interlocutory application on without notice for interim relief is granted. I make the following orders:

(a)declaring that the applicant’s licence endorsements and appointment as a vehicle testing officer (also known as an assessor) and instructor of class 2, 3, 4, 5 vehicle categories be deemed to continue in force until Mr Anthony’s application for judicial review of the suspension have been determined, or until Mr Anthony’s on notice application for interim relief is determined;

(b)the applicant is to file and serve the on notice application within three working days of this order, and

(c)the Registry is to allocate that application a first call in the duty Judge list on 21 June 2021.

[20]Costs reserved.

Venning J