Bartle Group Limited v New Zealand Transport Agency
[2020] NZHC 35
•29 January 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-378
[2020] NZHC 35
UNDER High Court Rules 2016, Part 18 BETWEEN
BARTLE GROUP LIMITED
Plaintiff
AND
NEW ZEALAND TRANSPORT AGENCY
Defendant
NEW ZEALAND POLICE
Intervener
Hearing: 11 November 2019 Counsel:
P A Morten for Plaintiff
K R Muirhead for Defendant
T Mijatov and J C Toebes for IntervenerJudgment:
29 January 2020
JUDGMENT OF CHURCHMAN J
Introduction
[1] Heavy vehicles play an important role in our transport system, with 90 per cent of the total freight tonnage in New Zealand being carried on the road network.1 While such vehicles undoubtedly make a significant contribution to New Zealand’s economy, they also feature disproportionately in our road toll. Despite making up only approximately seven per cent of all road travel taken, between 2010-2014, 18 per cent of road fatalities involved heavy vehicles, although it should be noted that truck drivers were only responsible for 35 per cent of these fatalities.2
1 Ministry of Transport Review of the Vehicle Dimension & Mass (VDAM) Rule: Discussion Document (December 2015) at 6.
2 At 6.
BARTLE GROUP LIMITED v NEW ZEALAND TRANSPORT AGENCY & ANOR [2020] NZHC 35
[29 January 2020]
[2] In order to ensure that the heavy vehicle fleet is operated both efficiently and safely, while recognising the constraints imposed by the road network, the Land Transport Rule: Vehicle Dimensions and Mass 2016 (the VDAM Rule) was implemented which created limits to the permitted configurations, dimensions and mass of vehicles, with particular emphasis placed on large combination vehicles.3
[3] Under the VDAM Rule, a towing vehicle with a full trailer, including load, is generally not allowed to exceed a total combined length of 22 metres,4 and a mass of 44,000 kilograms.5
[4] The plaintiff, Bartle Group Limited trading as ACE Towing & Heavy Haulage (Ace), provides services relating to specialised recovery of heavy motor vehicles, operating vehicles equipped with specialist heavy recovery equipment designed and engineered to carry out the salvage and towing of heavy motor vehicles ranging from
3.5 tonnes up to 62 tonnes. When one of its specialised heavy recovery vehicles is towing a heavy motor vehicle, the total gross weight can be up to 70 tonnes or more, and can measure, in overall length, in excess of 37 metres. This would clearly exceed by quite a margin the general dimensions and mass limits permitted in the VDAM Rule.
[5] However, heavy vehicle recovery service (HVRS) vehicle operators are exempt from these requirements, with cl 3.14(11) of the VDAM Rule providing for the towing of disabled heavy motor vehicles to the “nearest safe area”:
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)comply with the dimension requirements in Schedule 2; or
3 Land Transport Rule: Vehicle Dimensions and Mass 2016, Objective of the Rule.
4 Schedule 2.
5 Schedule 3, pt 2, table 2.1.
(b)comply with the mass ratio of towed and towing vehicles in 4.5; or
(c)be operated under an overdimension permit.
[6] Ace, the New Zealand Transport Agency (NZTA) and the New Zealand Police cannot agree on the interpretation and application of cl 3.14(11) of the VDAM Rule. As its interpretation and application is said to be a key issue arising daily in Ace’s operations, with major health and safety implications, not only for Ace, but for HVRS vehicle operators nationwide, Ace seeks a declaration, pursuant to the Court’s inherent jurisdiction, in accordance with its understanding that cl 3.14(11):
… in its correct interpretation and application, authorises a heavy vehicle recovery service vehicle to tow a heavy motor vehicle that has become disabled while on a roadway, and any attached trailers, as a single unit, to such location as the salvage operator has determined, taking into account all properly relevant factors, and in a way that enables the obstruction on the highway to be removed and the repair of the disabled vehicle to be undertaken within the highest level of protection against harm which can be achieved.
[7]Ace also seeks costs of and incidental to the proceeding.
[8] Both the defendant, NZTA, and the Police, appearing as intervener, oppose the granting of a declaration, with NZTA submitting that the Court does not have jurisdiction to hear and determine Ace’s claim.
Legislative framework
[9] The VDAM Rule is made by the Minister of Transport (the Minister) and, so, is subordinate legislation. The Minister’s implementation certificate states that it is created:
PURSUANT to sections 152, 153(b) and (c), 155(a), 157(a), 159, and 160(4) of the Land Transport Act 1998, and after having regard to the criteria specified in section 164(2) of that Act.
[10] Section 152 of the Land Transport Act 1998 (the Act) empowers the Minister to make “ordinary rules” for a variety of purposes, including “assisting land transport safety and security”.6
6 Land Transport Act 1998, s 152(b).
[11] As to the categories of ordinary rules concerning road user behaviour that might be made, s 153(b) provides that such rules may regulate traffic of all classes and prohibit a class of traffic, either absolutely or conditionally, on particular roads, while s 153(c) provides that they may set out standards and requirements concerning the use of vehicle safety equipment by drivers and passengers.
[12] In terms of rules concerning vehicles, s 155(a) relevantly provides that ordinary rules may:
… set out standards and requirements concerning vehicles, including their construction, mass and dimensions, emissions, environmental requirements, loading requirements, identification, repair, maintenance, modification, inspection, and fuel systems …
[13] Section 157(a) provides that, in making rules concerning roads, ordinary rules may:
… regulate the use of roads, and empower road controlling authorities to control, restrict, and prohibit traffic, and to close roads in specified circumstances or on specified occasions, in accordance with the rules …
[14] Section 159 provides that the ordinary rules may require land transport documents to be held in relation to different components of regulated transport activities.
[15] Other provisions concerning ordinary rules are set out in s 160, with subs (4) providing:
An ordinary rule may—
(a)require or provide for a matter to be determined, undertaken, or approved by the Agency or any other person, and empower the Agency or any other person to impose requirements or conditions as to the performance of activities:
(b)specify standards, procedures, and requirements for the purposes of the rules:
(c)impose conditions, restrictions, and prohibitions:
(d)specify the definitions, abbreviations, and units of measurement to apply within the land transport system:
(e)prescribe, or provide for the approval of, forms, documents, and records for the purposes of the rules:
(f)make transitional and savings provisions for the purposes of implementing any rule; and for the purposes of determining the expiry date of licences under section 23(4).
[16] Section 164(2) sets out the matters to which the Minister must have regard when making or recommending rules:
The Minister in making or recommending a rule, or the Agency in making a rule, must have regard to, and give such weight as the Minister or the Agency (as the case may be) considers appropriate in each case to, the following:
(a)the level of risk existing to land transport safety in each proposed activity or service:
(b)the nature of the particular activity or service for which the rule is being established:
(c)the level of risk existing to land transport safety in New Zealand in general:
(d)the need to maintain and improve land transport safety and security, including (but not limited to) personal security:
(da)the appropriate management of infrastructure, including (but not limited to)—
(i)the impact of vehicles on infrastructure; and
(ii)whether the costs of the use of the infrastructure are greater than the economic value generated by its use:
(e)whether the proposed rule—
(i)assists economic development:
(ii)improves access and mobility:
(iii)protects and promotes public health:
(iv)ensures environmental sustainability:
(ea)the costs of implementing measures for which the rule is being proposed:
(eb)New Zealand’s international obligations concerning land transport safety:
(f)the international circumstances in respect of land transport safety:
(g)such other matters as the Minister (in the case of ordinary rules) or the Agency (in the case of emergency rules) considers appropriate in the circumstances.
Interpretation of cl 3.14(11) of the VDAM Rule
[17] The meaning of cl 3.14(11) of the VDAM Rule must be ascertained from its text and in light of its purpose.7 In determining its purpose, the Court must have regard to the legislative context, as set out above. The social, commercial, or other objective of the enactment may also be relevant.8
[18]The objective of the VDAM Rule is set out as follows:9
Land Transport Rule: Vehicle Dimensions and Mass 2016 (the Rule) specifies requirements for dimension and mass limits for vehicles operating on New Zealand roads. It also includes some provisions that relate to the performance and operation of motor vehicles.
This Rule revokes and replaces Land Transport Rule: Vehicle Dimensions and Mass 2002 (the 2002 Rule). It 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, within the constraints imposed by the road network, and ensuring 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.
The Rule clarifies and rationalises the existing requirements for vehicle dimension and mass limits. It also includes some limited increases in axle and gross mass limits from the limits in the 2002 Rule.
The Rule continues the distinction between dimension and mass limits for general access and the allowance to operate a vehicle with higher mass or with larger dimensions if a permit is obtained.
The Rule does not prescribe every situation; every driver and operator has a responsibility to exercise good judgement. This is consistent with the general responsibilities stated in sections 6, 7, 8 and 9 of the Land Transport Act 1998 (which relate to vehicle safety, driver responsibility, and the need to secure loads).
7 Interpretation Act 1999, s 5.
8 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22].
9 Land Transport Rule: Vehicle Dimensions and Mass 2016, Objective of the Rule.
The issue of a permit under this Rule does not displace those general responsibilities. The Rule also does not displace a restriction imposed by other legislation. For example, general access limits do not allow a heavy vehicle to cross a bridge with a posted limit (fixed by a road controlling authority) that is lower than the vehicle’s actual gross mass.
[19] With one exception, the technical terms used in the VDAM Rule are defined in the Act or the Regulations. The exception is the reference to the word “safe” as used in “the nearest safe area”.
[20] Ace argues that the work which may be undertaken pursuant to cl 3.14(11) is work carried out in the course of the conduct of a business, and accordingly is at a place of work for those involved. Therefore, Ace submits that the Health and Safety at Work Act 2015 (HSW Act) applies. It is noted that the Health and Safety in Employment Act 1992 included the following definition of the meaning of “safe”:10
safe,—
(a)in relation to a person, means not exposed to any hazards; and
(b)in every other case, means free from hazards;—
[21] This definition is not repeated in the HSW Act, which applies a purposive test to compliance, relevantly providing that its purpose is as follows:
3 Purpose
(1)The main purpose of this Act is to provide for a balanced framework to secure the health and safety of workers and workplaces by—
(a)protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant; and
…
(2)In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety, and welfare from
10 Health and Safety in Employment Act 1992, s 2.
hazards and risks arising from work or from specified types of plant as is reasonably practicable.
[22] Ace submits that, taking into account the objectives of the VDAM Rule and the purpose of the HSW Act, the meaning of cl 3.14(11) can be ascertained. It argues that the phrase “off the roadway” means the nearest safe area off the roadway and does not mean a repair “at the roadside, off the roadway”, relying on the VDAM Rule’s definitions of “roadway” as meaning “that portion of the road used or reasonably usable for the time being for vehicular traffic in general”11 and of “road” as including:12
(a)a street; and
(b)a motorway; and
(c)a beach; and
(d)a place to which the public have access, whether as of right or not; and
(e)all bridges, culverts, ferries, and fords forming part of a road or street or motorway, or a place referred to in paragraph (d); and
(f)all sites at which vehicles may be weighed for the purposes of this Act or any other enactment
[23] It is contended that, once these definitions are put together, the nearest safe area off the roadway must be:
… off that portion of a street, of a motorway, of a beach, of a place to which the public have access (as of right or not), of bridges, culverts etc forming part of a road or street or motorway or a place to which the public have access (as of right or not), and of any site where vehicles may be weighed, that is used or reasonably usable for the time being for vehicular traffic in general.
[24] There appears to be no dispute but that it is plain from the VDAM Rule that the person or company undertaking the tow must therefore determine the “nearest safe area” destination, off the roadway, for the tow, having regard to:
(a)traffic volume;
11 Land Transport Rule: Vehicle Dimensions and Mass 2016, pt 2: definitions.
12 This is the meaning given in the Land Transport Act 1998, s 2.
(b)vehicle load; and
(c)the ability to undertake repair safely at the roadside.
[25]However, Ace contends there are other considerations that may arise, namely:
(a)whether the area it is proposed to be used “to undertake repair safely” is:
one to which entry and use by the vehicle is permitted; and
(ii)capable of sustaining the entry and exit of the towing vehicle, the disabled vehicle and accessory trailers involved;
(b)whether work operations can be carried out safely in that area to repair the disabled vehicle/trailers;
(c)whether loads which are dangerous or otherwise require special handling can be de-vanned in that area in a safe manner;
(d)the cause of the disablement and the extent of the repair required;
(e)whether, during the period of occupation of the selected “safe area”, the vehicles and any load in them will be safe (which includes being safe from theft, pillage, or any other advantage illegally taken as a result of their disablement);
(f)whether the towed vehicle can be separated from any attached trailers or, if separated, whether it continues to comply with VDAM permits issued to the towing vehicle and combination that Ace is salvaging; and
(g)whether, taken as a whole, the decision made provides “the highest level of protection against harm to [workers and other persons’] health, safety, and welfare from hazards and risks arising from work or from
specified types of plant as is reasonably practicable”, under s 3 of the HSW Act.
[26] Ace argues that the identification of a “safe area” is a matter for the judgement of the person or company carrying out the tow. It is said that this must be so as the primary obligation to achieve and maintain safe operation under the HSW Act falls on that person; they will be legally accountable for the safety outcome, and may reasonably take a precautionary (conservative) approach to risk assessment. Any such decision would also take into account the specifications of the tow vehicle, including the safe working limits for all equipment used and, as the VDAM Rule makes clear, must balance all factors, including any safety issues inherent in towing a disabled heavy motor vehicle and any trailers as a single unit. Ace argues that the option which must be selected is that which the decision-maker, acting in good faith, considers to be the safest.
[27] NZTA, however, notes that that cl 3.14(11) provides that the disabled vehicle must be towed not simply to a safe area, but to the nearest safe area. The importance of towing a disabled vehicle only to the nearest safe area and not beyond is said to be underscored by the fact that a HVRS vehicle that is towing a disabled heavy motor vehicle to the nearest safe area has the benefit of being exempt from complying with a number of vehicle mass and dimension restrictions ordinarily imposed. In particular, a HVRS vehicle operator towing a disabled heavy motor vehicle to the nearest safe area:
(a)does not need to:
(i)comply with overdimension requirements contained in Schedule 2 to the VDAM Rule; or
(ii)operate under an overdimension permit; and
(b)does not need to comply with tow ratio requirements set out in cl 4.5; and
(c)is not bound by particular tow spacing restrictions contained elsewhere in cl 3.14, including in relation to:
(i)the number of trailers that may be towed; and
(ii)the towing of a trailer and a rigid vehicle without power.
[28] NZTA further notes that cl 3.14(11) is silent about who is tasked with determining the location of the nearest safe area and also does not expressly state what must occur once the nearest safe area is reached. Its text, however, indicates that beyond the nearest safe area, the dimension requirements in Schedule 2, mass tow ratios and any overdimension permit requirements will apply. It is submitted that, to avoid contravening those requirements, the disabled vehicle should be adjusted at the nearest safe place to ensure that it complies with all aspects of the VDAM Rule that apply beyond the nearest safe place, with such adjustment including dividing a disabled combination vehicle and towing each part of the combination separately, devanning (unloading) it, or repairing it.
[29] NZTA contends that, while the Act does not refer to “safe areas”, it does refer to a “place of safety”. For example, the Act provides that certain persons must direct drivers on a road to keep the vehicle stopped or to remove the vehicle to a “place of safety” approved by an officer and remain stopped there if:
(a)a heavy motor vehicle or transport service vehicle is overloaded;13 and/or
(b)the enforcement officer has good cause to suspect that the load or part of the load on a heavy motor vehicle, or on a vehicle being towed by a heavy motor vehicle, is not properly secured and contained;14 and/or
13 Land Transport Act, s 126.
14 Section 128.
(c)the enforcement officer or a dangerous goods enforcement officer has good cause to suspect a breach of rules relating to the carriage of dangerous goods involving a vehicle;15 and/or
(d)a dangerous good enforcement officer has good cause to suspect that there has been a breach of the rules in respect of a rail vehicle or driver of a rail vehicle.16
[30] In each case, the vehicle is required to remain stopped at a place of safety until the potential rules breach or other issue is rectified.17
[31]NZTA also points to the definition of “vehicle recovery service” in the Act:18
vehicle recovery service—
(a)means the towing or carrying on any road of a motor vehicle, irrespective of the size or design of the towing or carrying vehicle, and whether or not the towing or carrying of the vehicle is carried out by a person intending to carry out repairs on the vehicle; but
(b)does not include—
…
(iv)the towing of disabled vehicles using a rope or flat tow by—
(A)a person employed by, or contracted to, a motoring association or insurance company where the towing is limited to removal of the vehicle to a place of safety…
…
[32] NZTA submits that the use of “place of safety” in the Act supports an interpretation of cl 3.14(11) that promotes the removal of a hazard only as far as necessary to ensure that the hazard can be cleared off the roadway.
15 Section 129.
16 Section 130.
17 Sections 126(2), 128(2), 129(2) and 130(2).
18 Section 2.
[33] While a small number of other enactments contain references to “safe areas”, NZTA argues that those enactments are not concerned with land transport and provide little assistance in interpreting “nearest safe area” in the context of cl 3.14(11).
[34] The Police similarly note these provisions in the Act referring to a “place of safety”, stating that it makes clear the legislative intention that a “place of safety” is a place to which a vehicle is removed for a short time or distance away while the vehicle is adjusted. It is submitted that it is appropriate that the VDAM Rule, which is promulgated under the Act, be interpreted consistently with provisions in the parent legislation relating to similar subject matter.
[35] As to the plaintiff’s suggestion that the proper interpretation of cl 3.14(11) allows a HVRS vehicle operator to take a decision based on subjective considerations about the location of the nearest safe area, NZTA submits that it would be unusual for the lawmaker to confer a discretion on a regulated party without making express provision for that in the language of the clause. In addition, such an interpretation is said to be potentially problematic because it:
(a)does not give due emphasis to the three objective and expressly stated factors to be taken into account listed in cl 3.14(11); and
(b)may mean that cl 3.14(11) could only be enforced where there was evidence that the operator did not subjectively believe that the location they were towing a disabled vehicle to was the nearest safe area, which would be difficult to prove.
[36] A further criticism by NZTA of the declaration sought by Ace is that it does not acknowledge or emphasise the need for the safe area to be the “nearest” safe area.
[37] Finally, in terms of Ace seeking to import a provision of the HSW Act as a consideration that is relevant to a determination about the location of the nearest safe area under cl 3.14(11), NZTA submits that, while all operators should be mindful of their health and safety obligations, it is potentially problematic to graft these obligations directly into the clause because:
(a)there is no indication in the text or purpose of the VDAM Rule that such a meaning should be adopted;
(b)it amounts to re-writing cl 3.14(11) which is properly a question for Parliament of for the responsible Minister, not the courts;
(c)the HSW Act is part of a different regulatory regime with a different regulatory purpose;
(d)including wording of s 3(2) entails consideration about whether HVRS vehicle operators are “workers” working in “workplaces” while recovering heavy vehicles; and
(e)in any event, the definition selected by Ace does not contain the full text of s 3(2).
[38] Similarly, the Police argue that, although both the VDAM Rule and the HSW Act use the word “safe”, little if any interpretative assistance is obtained by Ace’s attempt to transplant that meaning from one context into another. As the Court of Appeal in P v F observed, “reliance on different interpretations of the [same] words
… in other statutory contexts does not assist”.19 The decision then went on to quote
from an earlier decision of that Court: “[I]t is necessary to consider the context in which the expression appears in light of the purposes of the Act as a whole”.20
[39]NZTA submits that the proper interpretation of cl 3.14(11):
(a)clarifies the objective criteria to be taken into account when determining the location of the nearest safe area (namely traffic volume, vehicle load and the ability to undertake repair safely at the roadside off the roadway);
19 P v F [2015] NZCA 317, [2015] 3 NZLR 758 at [32].
20 At [33], citing Glynbrook 2001 Ltd v Official Assignee [2012] NZCA 289 at [79(b)].
(b)confirms that the safe area to which a disabled heavy motor vehicle is to be towed must be the nearest safe area to the site of disablement as indicated by:
(i)the word “nearest” in cl 3.14(1);
(ii)the exemptions from standard towing and dimension restrictions set out in cl 3.14(11) while the disabled vehicle is being towed to the nearest safe area; and
(iii)the need to promptly move a disabled vehicle off of the roadway, where it may be creating a hazard for other road users;
(c)indicates that a common-sense application of cl 3.14(11) is required given the myriad factual scenarios in which a heavy motor vehicle may become disabled; and
(d)indicates that an operator of a HVRS vehicle may be required to make a decision about the location of the nearest safe area.
[40] The Police note that the purpose of the VDAM Rule generally is to create a reasonable balance between the efficient operation of the heavy motor vehicle fleet, within the constraints imposed by the road network, and ensuring that heavy motor vehicles are operated safely. This objective is achieved by “creating limits to the permitted configurations, dimensions and mass of vehicles”. In contrast, cl 3.14(11) exempts HVRS vehicle operators from complying with the limits on dimension and mass ratio, undercutting those limits that otherwise ensure heavy motor vehicles are operated safely. In doing so, it avoids the need for urgent overdimension permit applications whenever a heavy vehicle breaks down. It is submitted that this reinforces that the purpose of cl 3.14(11) is to allow a short-distance tow to clear a heavy vehicle from a roadway so that other arrangements can be made for its repair or separation in a low-risk location into separate components, each of which does comply with the requirements as to overdimension and mass. The exemption ought therefore only
apply until the “nearest” safe area has been reached. Any wider exemption would undermine the general purpose, and mechanisms, of the VDAM Rule.
[41] The Police point to a number of good safety reasons why the exemption in cl 3.14(11) only applies until the nearest safe area is reached. The mass ratio is said to impact on the ability of the towing vehicle to control the mass towed, which is of particular importance if the towing vehicle is travelling at speed, is required to stop, or to change direction abruptly. The dimension regulations also serve an important safety function in that they help ensure vehicles and their loads stay within their lane, particularly when turning. Issues said to arise from the operation of overdimension combinations of vehicles include that they may block intersections, cross the centre line, and cause other motorists to take longer when overtaking.
[42] The Police submit that the location of the nearest safe area must be objectively assessed, arguing that the text of cl 3.14(11) supports an objective interpretation, there being no gloss on the phrase “nearest safe area”, except for the matters listed, each of which is capable of objective ascertainment. The purpose of the VDAM Rule is also said to support an objective determination as it recognises the dangers inherent in the operation of vehicles exceeding permitted dimensions and mass ratios. In the interests of road user safety, the time period and distance over which the cl 3.14(11) exemption applies ought to be the minimum that is required. A subjective interpretation of “nearest safe area” would allow tows to be carried out over a greater distance and time period, and would subject other road users to the greater safety hazards posed by overdimension vehicles and would undermine the ability of Police to regulate such conduct. Finally, it is contended that the legislative context would also support an objective assessment as cl 3.14(11) is an exception to the general prohibitions and restrictions contained in the VDAM Rule.
[43] As to the area that may be the “nearest safe area”, the Police argue that the plain text of cl 3.14(11) indicates that it will always have the following features:
(a)it must be the nearest;
(b)it must be off the roadway; and
(c)it will turn on circumstance: namely traffic volume, vehicle load and the ability to undertake repairs safely at the roadside.
[44] The Police contend that Ace is taking a literal interpretation in submitting that areas such as road shoulders, petrol stations, large public carparks and truck stops are not “off the roadway” and so cannot be a “safe area”. They submit that, even if those places may literally be “road” as defined in the Act, that does not mean they cannot be places “off the roadway”. In support of that submission, they provide the following reasons:
(a)Considering the defined terms together, in permitting the combination to be towed to the nearest safe area “off the roadway”, cl 3.14(11) permits the combination to be towed off that portion of the road shoulder, petrol station, etc that is being used (or reasonably useable for the time being) for vehicular traffic in general. Factual situations will plainly arise where there is an available road shoulder, truck stop or other area that is not “being used” for “vehicular traffic in general”. Accordingly, in those situations those sorts of locations can be “safe areas” and thus also “nearest safe areas”.
(b)Ace’s interpretation overlooks the fact that the meaning of “road” for the purposes of the Act is a question of fact to be determined by the circumstances of each case and that a literal approach should not be allowed to work absurdity:21
It would be permissible to depart from the ordinary meaning of the New Zealand statutory definition if it led to some absurdity or if in any particular section of the Transport Act the context otherwise required.
Transplanting a literal interpretation of “road” may lead to an absurd result which can be avoided given that the meaning of “nearest safe area” can and should be ascertained from the three circumstances
21 McBreen v Ministry of Transport [1985] 2 NZLR 495 (CA) at 498.
expressed in cl 3.14(11), each of which is capable of objective ascertainment.
Analysis
[45] I accept the submissions advanced by NZTA and the Police that the correct interpretation of this clause of the VDAM Rule would require an objective determination of the nearest safe area, as opposed to the subjective determination Ace contends for. In making such a determination, the HVRS vehicle operator would need to take into account those factors explicitly set out in the rule: namely, the volume of traffic, the vehicle load, and the ability to undertake safely repairs at the roadside, off the roadway. I agree with the Police that a literal interpretation of the word “road” is unjustified. The concepts of road and roadway cannot be conflated as the plaintiff attempts to do. Depending on the circumstances, it might be that the nearest safe area to which a disabled vehicle should be towed will be an area that might technically come within the definition of “road” provided in the Act but which will be an area that is not at the time being used for vehicular traffic. Given the dangers inherent in towing a heavy vehicle for any distance, it is imperative that emphasis is placed on the safe area being the nearest one possible, so as to minimise the risk posed to the public.
[46] The obligations arising under the Health and Safety at Work Act 2015 do not override or displace the VDAM Rule. As noted in the cases referred to in [38] above, attempting to rely on interpretation of a word that is used in an entirely different statutory context is fraught with difficulty and the Court is best to focus on the purpose and language of the statute actually being interpreted. In any event, obligations under the HSW Act do not modify the obligation to tow the disabled vehicle to the nearest safe area. The exemption which permits the towing of over mass or over dimension vehicles which have become disabled creates safety issues of its own. Implicitly, the mass and dimension limits have been fixed because exceeding those limits is not safe. It is also consistent with the purpose of “assisting land transport safety and security”22 that any exemption from the limits apply for the shortest possible distance. The fact that it may be more convenient for the vehicle recovery operator or vehicle owner for
22 Land Transport Act 1998, s152 (b).
the recovered vehicle to be towed somewhere other than the nearest safe location is irrelevant.
Declaratory judgment legal framework
[47] As noted above, the plaintiff’s application is also opposed on the basis that the Court does not have jurisdiction to grant such a declaration.
[48] In New Zealand, a declaration may be obtained under, inter alia, the Declaratory Judgments Act 1908 (DJA) and the High Court’s inherent jurisdiction.23
[49] Enacted so as to enable the High Court to give declarations or orders,24 the DJA’s purpose is:25
… to provide a quick and inexpensive means of obtaining a judicial perspective in situations where the matter cannot be brought before the court in its ordinary jurisdiction and “where a declaratory judgment would be appropriate relief”.
[50]Section 2 of the DJA provides as follows:
2Declaratory judgments
No action or proceeding in the High Court shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the said Court may make binding declarations of right, whether any consequential relief is or could be claimed or not.
[51] Section 3 sets out the circumstances in which a declaratory judgment or order may be obtained:
3Declaratory orders on originating summons
Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, or any regulation made by the Governor-General in
23 Rachael Schmidt-McLeave “Declaratory Relief” in Peter Blanchard (ed) Civil Remedies in New Zealand (online ed, Thomson Reuters) at [51.14.1].
24 Declaratory Judgments Act 1908, long title.
25 Rachael Schmidt-McLeave, above n 6, at [51.14.2.1], citing NZ Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA), Wybrow v Chief Electoral Officer [1980] 1 NZLR 147 (CA) and Young v NZ Insurance Co (1909) 29 NZLR 50 (SC).
Council under statutory authority, or any bylaw made by a local authority, or any deed, will, or document of title, or any agreement made or evidenced by writing, or any memorandum or articles of association of any company or body corporate, or any instrument prescribing the powers of any company or body corporate; or
Where any person claims to have acquired any right under any such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or to be in any other manner interested in the construction or validity thereof,—
such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or of any part thereof.
[52] The breadth of this jurisdiction was emphasised by the Supreme Court in Mandic v Cornwall Park Trust Board, with the Court also confirming that access to the jurisdiction does not depend on there being an existing dispute or a lis.26
[53] Once it is determined that the Court has jurisdiction under the DJA to answer the questions raised in the proceedings, the next step is whether the Court in the exercise of its discretion under s 10 should decline to do so.27
[54] The test is that set out by the Court of Appeal in NZ Insurance Co Ltd v Prudential Assurance Co Ltd:28
The jurisdiction to make orders under the Declaratory Judgments Act is wholly discretionary. The cases defining the attitude of the courts in the exercise of that discretion are numerous (see Sim’s Practice and Procedure (11th ed), vol 2, p 823) and they establish certain guidelines which will generally be followed. The Court will not answer purely abstract questions in anticipation of an actual controversy. It will not deal with mixed questions of fact and law. The procedure is designed to provide a speedy and inexpensive method of obtaining a judicial interpretation where the matter in dispute cannot conveniently be brought before the court in its ordinary jurisdiction and where a declaratory judgment would be appropriate relief. But the procedure should not be adopted where the party who institutes them can without real difficulty have the matter in dispute disposed of in an ordinary action.
26 Mandic v Cornwall Park Trust Board [2011] NZSC 135, [2012] 2 NZLR 194 at [9].
27 Reid v Reid (1985) 3 NZFLR 643 (CA) at 644-645.
28 NZ Insurance Co Ltd v Prudential Assurance Co Ltd, above n 8, at 85.
[55] Many of these factors are the same as those to be taken into consideration by a Court when determining whether to invoke its inherent jurisdiction to grant declaratory relief.29
[56] The Court’s inherent jurisdiction to grant declarations concerning private conduct was traditionally limited to declarations concerning enforceable legal rights.30 More recently, though, the Court of Appeal has held that the proposition that the Court could make a declaration in its inherent jurisdiction only if there are rights and duties of, and owed between, relevant parties was inaccurate.31 It has instead emphasised the expansive nature of the declaratory jurisdiction. For example, in Re Chase, Cooke P observed that:32
… it does not seem to me a legitimate function of the High Court, or this Court on appeal, to renounce or narrow inherent jurisdiction. The same applies to wide discretionary jurisdiction conferred by statute. Attempts to foreclose the categories of cases in which such jurisdiction may appropriately be exercised can be equally short-sighted. It is given to no Judge to foresee all the possible kinds of case, or all the shifts in what the public interest will require from time to time. ...
As to jurisdiction, s 2 of the Declaratory Judgments Act is amply wide and in my view should not be restricted by interpretation: provided always that it is read together with s 10, which expressly states that the declaratory jurisdiction is discretionary “and the said Court may, on any grounds which it deems sufficient, refuse to give or make any such judgment or order”.
[57] More recently, Chambers J, noting that the law had moved on since Gouriet, quoted the following passage from Zamir & Woolf: The Declaratory Judgment:33
... within the limits of their general jurisdiction and subject to any express statutory provision to the contrary the courts have a discretion to grant declarations upon any matter whatsoever.
[58] NZTA submits that the High Court may be able to make declaratory orders beyond those falling within the terms of s 3 of the DJA, noting, as examples, that declarations have been sought under the Court’s inherent jurisdiction where:
29 See Dariush-Far v Ellis HC Christchurch CIV-2007-409-1518, 6 November 2007.
30 Gouriet v Union of Post Office Workers [1978] AC 435 (HL) at 501.
31 Peters v Davison (No 3) [1999] 2 NZLR 164 (CA).
32 Re Chase [1989] 1 NZLR 325 at 333.
33 Telecom Corporation of New Zealand Ltd v Commerce Commission [2012] NZCA 278 at [295], quoting from Lord Woolf and Jeremy Woolf Zamir & Woolf: The Declaratory Judgment (4th ed, Sweet & Maxwell, London, 2011) at [3-19].
(a)the applicant was seeking a declaration about the consequence of non- compliance with trust board rules, rather than the meaning of the rules themselves;34 and
(b)the applicant sought declarations about the interpretation of resource consents (which are not instruments or documents referred to in s 3 of the DJA).35
[59] NZTA contends that the key point, as Cooke P observed in Re Chase, is that the wide jurisdiction must read together its discretion to grant a declaration and that, in determining whether to grant such a declaration, regard should be had to the principles emerging from the case law concerning the exercise of the discretion under s 10 of the DJA.36
[60] It is submitted for NZTA that declaratory relief will normally be refused in cases in which the subject matter of the proposed declaration can be characterised as theoretical or hypothetical,37 and that the absence of a dispute based on concrete facts is critical.38 This approach, it is said, reflects the Courts’ primary role, which is to resolve existing disputes between parties where the Court’s decision will have immediate and practical consequences for at least one of the parties.39
[61] NZTA argues that hypothetical cases include cases where a dispute is not attached to specific facts, noting that Zamir & Woolf explains why these kinds of disputes tell strongly against the granting of declaratory relief in the following way:40
If … the dispute is not attached to specific facts, and the question is only whether the claimant is generally entitled to act in a certain way, the issue will still be considered theoretical and the court may refuse relief on that basis. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person … may be adversely affected by a particular act of the clamant. It may
34 Apineru v Board of Trustees of the Congregational Christian Church of American Samoa in New Zealand (Porirua) Trust (2004) 1 NZTR 14-015 (HC).
35 Star Holdings Ltd v Meridian Energy Ltd HC Timaru CIV-2003-476-000732, 23 March 2004.
36 Schmidt-McLeave, above n 6, at [51.15.7].
37 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd, above n 8.
38 Woolf and Woolf, above n 16, at [4-59].
39 At [4-35].
40 At [4-71] (footnote omitted).
then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion. Granting declarations in such circumstances may not assist the efficient administration of justice because the proceedings may take time to resolve but the declaration may not resolve the dispute.
[62]The Courts, it is contended, will be wary about:
(a)providing the plaintiff with “an expository gloss upon the Act” with the resulting declared documents being used as weapons in “future hypothetical hostilities with future hypothetical opponents”;41 and
(b)making declarations without full appreciation of the practical implications of such a declaration.42
[63] NZTA submits that the fact that an applicant has an immediate practical interest in a declaration is not sufficient to render real an otherwise hypothetical issue.43
[64] As to the legality of future proposed conduct, NZTA notes that courts have traditionally proceeded with great caution when exercising the discretion to issue declarations as to whether certain conduct amounts or will amount to the commission of an offence.44 This approach was recently confirmed by the Supreme Court in Shark Experience Ltd v Pauamac5 Inc.45
[65] Another factor said to weigh against granting declarations is the existence of contested facts. In Mandic, the Supreme Court held that an application for a declaratory order is inappropriate when there are questions of fact to be determined.46 In Shark Experience Ltd, it was confirmed that courts are reluctant to issue a declaration where the proceeding is fact-sensitive, involves disputed factual material,
41 Lever Brothers and Unilever v Manchester Ship Canal Co (1945) 78 LLLT 507 at 509 (EWHC).
42 See R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at [21].
43 Woolf and Woolf, above n 16, at [4-59].
44 See, for example, Imperial Tobacco Ltd v Attorney-General [1981] AC 718 (HL); Ambrose v Attorney-General [2012] NZAR 23 (HC) at [36].
45 Shark Experience Ltd v Pauamac5 Inc [2019] NZSC 111.
46 Mandic v Cornwall Park Trust Board, above n 9, at [5] and [82].
or where there is insufficient evidence before the Court to determine a question of fact.47
[66] Finally, the DJA may not be used if the disputed point of law is already being considered by the Court in separate proceedings between the same parties.48 The High Court in Pharmaceutical Society of New Zealand v Barron observed:49
[8] There is no prohibition against declaratory judgment proceedings where a prosecution could be brought which might answer a similar question. This position can change if a declaratory judgment is sought during the course of criminal proceedings.
Should the Court exercise its jurisdiction to grant the declaratory order sought?
[67] NZTA submits that Ace’s proposed declaration does not fall within s 3 of the DJA because the VDAM Rule is not “any regulation made by the Governor-General in Council under statutory authority”, noting that, as acknowledged by Ace, it is a rule made by a Minister of the Crown.
[68] While the NZTA accepts that Ace may nevertheless be able to avail itself of the jurisdiction under s 2 of the DJA and the Court’s inherent jurisdiction, it submits that, even if the Court is satisfied that it has jurisdiction to hear and determine ACE’s claim, it should decline to exercise its discretion to grant a declaratory order for the following reasons:
(a)The declaration sought is hypothetical. It is divorced from any factual context and amounts to an advisory opinion about the interpretation of cl 3.14(11). The declaration would therefore not resolve any dispute between the parties about the meaning of cl 3.14(11) as any conclusion could be revisited in a separate proceeding.
(b)The interpretation of cl 3.14(11) is better addressed through the criminal proceedings that have been initiated against ACE and two of
47 Shark Experience Ltd v Pauamac5 Inc, above n 28, at [115], citing Ambrose v Attorney-General, above n 27, at [48], [51] and [55].
48 Chaffey v Mount Cook Air Services Ltd [1969] NZLR 25.
49 Pharmaceutical Society of New Zealand v Barron [2003] 3 NZLR 69.
its drivers. The Court may offer views about the interpretation of cl 3.14(11) that may assist the determination of those proceedings, if it is satisfied that so doing would not usurp the functions of the criminal courts in considering these issues.
(c)The terms of the declaration are unclear and are not capable of precise definition.
(d)If granted, the declaration would:
(i)enable ACE’s drivers to make wholly subjective assessments about the location of the “nearest safe area” – effectively conferring a discretion on a regulated party – notwithstanding that the wording of cl 3.14(11) does not expressly provide for that;
(ii)substantially restrict the grounds on which an operator’s decision about the location of the nearest safe place could be challenged; and
(iii)effectively re-write the text of cl 3.14(11).
These and other aspects of the draft declaration do not reflect the correct interpretation of cl 3.14(11).
(e)In any event, key facts underpinning ACE’s interpretation of cl 3.14(11) are disputed by NZTA and the Police.
[69] It is submitted that any one of these reasons would be sufficient for the Court to exercise its discretion to refuse to grant the declaration sought, and the existence of all of these reasons in this case tells very strongly in favour of an exercise of the Court’s discretion to refuse relief.
[70] I accept the NZTA’s submissions on these points as summarised in [58]-[68] above. Given there are criminal proceedings before the courts that concern the
interpretation of cl 3.14(11), it would be preferable for its correct interpretation to be determined in a particular factual setting, where the Court will no doubt be made fully aware of any potential risks involved in allowing drivers to make subjective decisions as to what “the nearest safe area” is. Accordingly, although it is my view that the Court has jurisdiction to make a declaration of the nature sought, this is not a situation in which it would be appropriate to do so.
Result
[71]The Court declines to make a declaration of the nature sought.
Churchman J
Solicitors:
Burton Partners, Auckland for plaintiff Meredith Connell, Auckland for defendant
Kayes Fletcher Walker Ltd, Manukau for intervener
Counsel:
P A Morten, Wellington
T Mijatov and J C Toebes, Wellington
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