Bartle Group Limited t/a Ace Towing and Heavy Haulage v New Zealand Transport Agency
[2019] NZHC 2168
•22 August 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-378
[2019] NZHC 2168
BETWEEN BARTLE GROUP LIMITED trading as ACE TOWING AND HEAVY HAULAGE
Plaintiff
AND
THE NEW ZEALAND TRANSPORT AGENCY
Defendant
Hearing: 22 August 2019 Appearances:
P A Morten for Plaintiff
K Muirhead for Defendant T Mijatov for Intervener
Judgment:
22 August 2019
JUDGMENT OF GRICE J
Introduction1
[1] The plaintiff, Bartle Group Ltd, trading as ACE Towing and Heavy Haulage (Bartle), has filed an application for a declaration as to the meaning of r 3.14(11) of the Land Transport Rule: Vehicle Dimensions and Mass 2016 (the Rule). The respondent is the New Zealand Transport Agency (NZTA).
[2] On 15 August 2019 NZTA made an application that the police be joined as an intervener to these proceedings on the following grounds:
(a)The police have a legitimate and substantive interest in the proceedings;
1 This decision was delivered orally 22 August 2019. The written form has been edited and footnoted before distribution.
BARTLE GROUP LIMITED trading as ACE TOWING AND HEAVY HAULAGE v THE NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 2168 [22 August 2019]
(b)It would be unjust to allow this matter to be heard without offering the police a chance to be heard due to their direct involvement in enforcement and prosecution in this area;
(c)The police have specialist knowledge that could assist the Court beyond NZTA’s knowledge;
(d)The police should be bound by any declaration in these proceedings; and
(e)No prejudice will be suffered if they are joined.
Orders relating to service are also sought by the NZTA.
[4] On 16 August 2019 Bartle filed a notice of opposition to the application. It said the police should not be joined as an intervener because:
(a)The presence of the police is not necessary to justly determine the issues arising;
(b)These are civil proceedings and the police involvement is in enforcement and criminal proceedings only;
(c)The police will be bound by the decision whether or not they are joined;
(d)Case law does not support joinder;
(e)The police could assist NZTA without being joined;
(f)Prejudice would be caused if the police were joined.
[5] Bartle emphasised this matter needed to be dealt with expeditiously. A timetable for submissions allowed this hearing within a very short timeframe. I granted leave for the police to file submissions and relevant evidence within that
timeframe to give me a clear idea of the possible contribution and their possible assistance to the Court. I also granted the police leave to appear today.
Intervention: the principles
[6] The inherent jurisdiction of this Court enables it to grant leave to a non-party to intervene in a proceeding. An entity that is not a party may apply to a Judge to become involved in a proceeding through intervening and the Judge may make directions on the conduct of the proceedings.2 There is, however, no specific legislative basis for intervention in New Zealand.3
[7] A number of decisions have considered the issue and laid down some principles, including Seales v Attorney-General to which counsel all referred.4
[8] The starting point is whether the proposed intervener, or in this case, NZTA on behalf of the police, has laid a sound basis for this Court to depart from the usual situation of privity of litigation. This is particularly so in this case as the intervention is opposed.5 As Lord Woolf noted in Re Northern Ireland Human Rights Commission (Northern Ireland):6
The practice of allowing third persons to intervene in proceedings brought by and against other persons which do not directly involve the person seeking to intervene has become more common in recent years but it is still a relatively rare event. The intervention is always subject to the control of the court and whether the third person is allowed by the court to intervene is usually dependent upon the court’s judgment as to whether the interests of justice will be promoted by allowing the intervention. Frequently the answer will depend upon whether the intervention will assist the court itself to perform the role upon which it is engaged. The court has always to balance the benefits which are to be derived from the intervention as against the inconvenience, delay and expense which an intervention by a third party can cause to the existing parties.
[9] In Seales v Attorney-General, Collins J set out the following four principles against which to consider applications:7
2 High Court Rules 2016, r 743A(2)(a).
3 Seales v Attorney-General [2015] NZHC 828 at [41].
4 Seales v Attorney-General, above n 3.
5 At [43].
6 Re Northern Ireland Human Rights Commission (Northern Ireland) [2002] UKHL 25 at [32].
7 Seales v Attorney-General, above n 3.
[44] First, the power to grant leave to intervene is discretionary and should be exercised with restraint to avoid the risk of expanding issues, elongating the hearing and increasing the costs of the litigation.8
[45] Second, in a proceeding involving issues of general and wide public importance, leave to intervene may be granted when the Court is satisfied that it would be assisted by the intervener.9
[46] Third, it may be appropriate to grant leave to intervene where the proceeding is likely to result in the development of the law.10
[47] Fourth, leave should not be granted when the proceeding is essentially one that involves statutory interpretation and is unlikely to involve broad questions of policy.11
[10] In Capital and Merchant Finance Ltd v Perpetual Trust Ltd, Thomas J indicated the following factors could be of assistance. The most relevant of these factors in this case can be summarised as follows:12
(a)The interveners legal rights against or liabilities in relation to the subject matter should be directly affected. Lesser weight is given to commercial, financial or reputational interests.
(b)It should be considered to what extent the intervener can rely on a joined party to protect its rights and obligations.
(c)Intervention should not be allowed where prejudice will be caused or where an impression of partiality is created.
(d)It should be considered whether it would be unjust for the intervener not to be heard in the proceedings.
(e)Where intervention is justified, the degree of participation should be limited to the minimum required to protect its interests.
8 Drew v Attorney-General [2001] 2 NZLR 428 (CA) at [11].
9 Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 436 (CA).
10 X v X HC Auckland CIV-2006-404-903, 4 July 2006 at [25].
11 D v C [Intervention] (2001) 15 PRNZ 474 (CA) at [7].
12 Capital and Merchant Finance Ltd v Perpetual Trust Ltd [2014] NZHC 3205 at [41].
Analysis
The impact of these proceedings on the police and the information they can provide
[11] In my view the interpretation of the Rule will have an effect on police operations in their enforcement of the Rule and in their prosecutions of alleged breaches of it.
[12] The Rule specifies the requirements for dimension and mass limits for vehicles operating on New Zealand roads and sets out provisions for the performance and operation of motor vehicles. The Rule replaces a previous Land Transport rule and applies to all motor vehicles and cycles. The Rule is designed to create a reasonable balance between the efficient operation of the heavy motor vehicle fleet and the constraints imposed by the road network to ensure that heavy motor vehicles are operated safely. It does this by creating limits to the permitted configurations, dimensions and mass of vehicles, with particular emphasis on large combination vehicles. It also clarifies the existing requirements for vehicle dimensions and mass limits. Of relevance, r 3.14(11) says:13
3.14(11) A heavy vehicle recovery service vehicle may tow a heavy motor vehicle that has become disabled while on a roadway, and any attached trailers, to the nearest safe area, taking account of traffic volume, vehicle load, and the ability to undertake repair safely at the roadside, off the roadway (that is accessible without contravening any bridge weight limit including posted limits) and does not have to—
(a)first comply with dimensional requirements in Schedule 2; or
(b)the with the mass ratio of towed and towing vehicles in 4.5; or
(c)be operated under an overdimension permit.
[13] It is clear that the focus in the substantive proceeding will be on the words “the nearest safe area”. The interpretation will need to take into account a number of factors. It is clear, as Mr Morten emphasised, the types and nature of the vehicles which are likely to be involved will be different in each case. There are issues of public safety involved which will apply beyond the present two parties to this proceeding.
13 Emphasis added.
[14] In addition, there is a District Court decision of 11 July 2019 which relates to the prosecution by the police of one of the Bartle’s drivers.14 That decision is on a preliminary application to strike the prosecution out under this Rule. The preliminary application was unsuccessful and the matter has been adjourned to a call over on 4 September 2019 for a two-day judge alone trial. That prosecution has been adjourned pending the outcome of this proceeding. Currently there are a number of similar cases before the District Court in which the police are involved and, therefore, the police’s involvement in these proceedings is somewhat closer than would ordinarily be the case.
Likely assistance
[15] Sergeant Spence has given evidence supporting the intervention by affidavit. Mr Morten in submissions questioned Sergeant Spence’s authority and expertise to provide the evidence. However, I do not consider that that objection is relevant for the purposes of this application. I am satisfied that Sergeant Spence has the authority to give the evidence he does for the purposes of this application. He swears that he has that authority. I have no reason to question that.
[16] In his evidence Sergeant Spence says that the role of the Police Commercial Vehicle Safety Team (the unit) is a specialist role. He sets it out how it operates in the policing of New Zealand’s roads. The unit is made up of both sworn officers and authorised officers (who are mechanics) who are trained in most road policing legislation and have the authority to undertake all aspects of this duty under any enactment.15 The Rule is one of the rules dealt with by that unit.
[17] The unit works closely with agencies such as NZTA in undertaking this work. However, NZTA undertakes a different role to the police in that it oversees the transport system as a whole. It also has the power to revoke or suspend licences. The police must enforce the legislation, rules and bylaws. The police also primarily undertake any prosecution or infringement action and manage those prosecutions and infringements as well as the operations.
14 Police v Price [2019] NZDC 13795.
15 Except for the powers to arrest or detain.
[18] Seven cases relevant to this rule are apparently before the District Court at present.16
[19] Mr Morten for Bartle submitted that some, if not all, of the prosecutions against Bartle were initiated after these proceedings were contemplated. I do not consider that is directly relevant nor do I need to go into the police’s reasons for bringing those prosecutions. The police’s responsibility is to prosecute under the Rule and their prosecutorial discretion is a matter for them.
[20] In the prosecutions that have been brought, at least in those against the drivers for Bartle, it is apparent that the defences raised will relate to the interpretation of the Rule for which the declaration is sought in this proceeding. It is also apparent that Bartle, on behalf of its drivers, will be promoting a similar interpretation to that which it promotes in these proceedings.
[21] The relevant criminal prosecutions have been adjourned pending the outcome of this proceeding. As well as the present prosecutions being undertaken, obviously there will be a direct effect on how the police prosecute similar cases in the future as a result of the declaration in this case.
[22] The police are the enforcement agency with direct involvement in the prosecution of breaches of the Rule and will have a real-world knowledge of the practicalities involved in the application of this Rule and to the factors, that Bartle has set out as relevant to the drivers’ decision as to where a vehicle should stop. NZTA is not involved in these prosecutions and therefore will not have the same knowledge.
[23] I also do not consider that the required assistance could be given to the Court by the mere production of copies of the summary of facts for the relevant prosecutions brought in the District Court. Nor could the NZTA appropriately convey in its submissions the relevant points in relation to prosecutions. It would be of far more assistance having the police involved and able to assist the Judge directly where required.
16 These include or are in addition to prosecutions against drivers who are employed by Bartle.
[24] The interpretation of the Rule will also likely involve some level of policy as it relates to road safety and other factors. It appears to me the expertise of the police will be of assistance to the Court in relation to that as well.
[25] While a declaration will not affect the police’s strict legal rights it will affect their operations and enforcement.
[26] I consider that this is a case where the assistance that the police can provide is such that they should be present as intervenor in these proceedings.
Importance of the issue and development of the law
[27] The issue before the Court is not a narrow one affecting only Bartle. While there are a number of cases against the Bartle drivers, clearly there will be cases against other drivers not involving Bartle. This illustrates the general importance of this issue albeit possibly to a narrow group of road users.
[28] Although it is difficult to establish with any level of certainty this early in the proceedings, it seems to me there will be overtones of policy and road safety that arise. Again, the assistance of the police in relation to those issues would assist the trial Judge. This is not a simple issue of statutory interpretation affecting only two parties. It has a much wider effect.
[29] If a declaration is made as to the interpretation of this Rule it will develop the law and will have the likely effect of determining whether or not prosecutions, like the present ones of the Bartle drivers, proceed or not.
Intervention and prejudice
[30] NZTA submit the police involvement may assist by narrowing rather than expanding the issues in dispute due to the expertise of the police. It argues the police intervention will not materially increase the length of the hearing or its cost because of the streamlined nature of declaratory judgment procedures and the ability of this Court to limit the extent to which the police are able to participate by virtue of the intervention.
[31] NZTA has also indicated that it will require the timetable to be extended to enable the police to provide any further evidence that may assist the Court. In my view, that if the timetable is carefully managed that is unlikely to extend the time to hearing by any significant period.
[32] Bartle argues that the police will simply provide more evidence about the prosecutions against its drivers already in the District Court. This, it submits, is seriously prejudicial to Bartle’s defence of the charges. I am unsure as to exactly what prejudice will occur. Bartle submits that while the usual case is that where criminal charges are pending and a civil case is brought involving the same facts, the civil case should be adjourned. It may well be that the existence of the criminal prosecutions may affect the outcome of the declaration or at least the exercise of the discretion. Nevertheless that is a matter on which I am sure Bartle will make submissions particularly concerning the timing of the laying of the prosecutions. That will be a matter for the substantive hearing.
[33] Some of the matters raised in the prosecutions in general may assist the Court. Nevertheless, the criminal proceedings should be dealt with on their own merits. No prejudice arises here.
[34] Bartle also argues that the declaration it seeks is “forward looking”, in that it will enable Bartle and no doubt other transport companies to comply with the law. Whereas, it says the evidence of the police will be backward facing so will necessarily increase the length of the proceedings.
[35] However, the declaration will be dealt with, on present indications, before the police prosecutions are dealt with in the District Court. A declaration may well affect existing prosecutions as well as any to come.
Intervention and justice
[36] The police have indicated in their memorandum that they wish to give evidence and make submissions on the proper interpretation of the Rule. I believe that the police would be able to provide assistance if focussed on the points that will assist the court and it is appropriate they be given leave to intervene. Given their involvement in the
day to day enforcement and their specialist expertise and experience it would serve the interests of justice if they intervened. They bring experience and expertise which is quite different to that of NZTA.
[37] Mr Morten for Bartle also raised a further point. He provided a copy of the Attorney-General’s values from the Crown Law website. These are headed “Attorney-General’s values for Crown civil litigation”. They state that there is only one Crown in New Zealand. Accordingly the Crown needs to be able to have a single and consistent view and speak with one voice on questions of law.
[38] In my view while that may be of relevance to some situations that is a matter for the Crown and for the police and the NZTA to deal with. It does not provide a reason for the police assistance not to be permitted in this case, given their special expertise and experience.
Conclusion and conditions
[39] As will be apparent, I conclude the police should be joined as interveners in the present proceedings. However, there will be strict conditions in relation to their intervention to ensure that the proceedings are not prolonged unduly.
[40]I propose imposing the following conditions:
(a)The police may produce evidence as it relates to the interpretation of the Rule. This should not be duplicate of anything provided by the NZTA and should solely be related to the issue before the Court.
(b)Written submissions on the interpretation of the Rule in the enforcement context should be provided but should be less than 4,000 words. That of course does not include any authority or rules that would be provided in support of those submissions.
(c)The police will also be permitted to present oral submissions at the hearing however the length of those will be determined by the hearing Judge.
(d)I also impose a condition that the intervener may not seek costs against any party.
[41] Counsel, may wish to seek other conditions. I allow three days to apply for leave to include other conditions.
Service
[42] NZTA seeks orders for directions as to service on the police.17 It asks for an order that the pleadings in this proceeding be served on the police through their solicitor, Kayes Fletcher Walker. Such an order is appropriate. I make such an order accordingly.
Costs
[43] In relation to costs I note that NZTA seeks costs but costs are opposed by Bartle on the basis that NZTA has sought an indulgence here. I will allow submissions on costs to be filed.
[44] NZTA is to file within three days and Bartle are to file any response within a further two days after that, if counsel are unable to agree on the issue of costs for this application.
Timetabling
[45] I grant leave to extend time for filing of the statement of defence to 29 August 2019.
[46] The matter is to be called in the chambers list on Monday 2 September to enable counsel to confer about the timetable, liaise about timing and possible length of the hearing.
Grice J
17 High Court Rules 2016, r 18.7(2).
3
0
0