Coromandel Peninsula Couriers Limited v New Zealand Transport Agency

[2019] NZHC 1545

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001000

[2019] NZHC 1545

UNDER

The Judicial Review Procedure Act 2016.

In the matter

of a decision made pursuant to the Land Transport Act 1998.

BETWEEN

COROMANDEL PENINSULA COURIERS LIMITED

Applicant

AND

NEW ZEALAND TRANSPORT AGENCY

Respondent

Hearing:	2 July 2019
Counsel:	S Khan and M Orange for Applicant A McClintock for Respondent
Judgment:	3 July 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on 3 July 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors            Fortune Manning, Auckland

Meredith Connell, Auckland

COROMANDEL PENINSULA COURIERS LIMITED v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 1545 [3 July 2019]

[1]    Coromandel Peninsula Couriers Limited (the Company) operates a trucking business. It carts freight between Thames, Auckland and Matamata. On 23 May 2019, the New Zealand Transport Agency (the Agency) revoked the Company’s transport service licence. The Company has filed an appeal to the District Court and seeks judicial review in this one. The latter will be heard 1 October 2019. The Company seeks relief until then; essentially, suspension of the Agency’s revocation.1

[2]    The Company contends it would suffer irreparable prejudice if it does not have interim relief. In short, it would go out of business. Twenty-one employees would lose their jobs. Even successful review would be Pyrrhic.

[3]    The Agency acknowledges these points but resists interim relief. It contends the Company’s private interests do not outweigh those of public safety, and the latter may be compromised if the Company continues to operate until 1 October (and delivery of the subsequent judgment). Consequently, the issues are important but narrow. Hence the brevity of this judgment.

[4]    Little background is necessary or desirable. The Company has operated a freight business for at least 23 years. It has 11 trucks, four trailers and several vans. And, as observed, 21 staff. The Agency believes the Company is not adequately maintaining its fleet. The Agency also believes this may compromise public safety. These concerns are traceable to 2014. The Agency considers the Company has been given many opportunities to remedy its concerns—but has not.

[5]    Annual audits are unpromising. For example, in 2017, the Agency found none of the six trucks it inspected, passed. All had faults. Seventeen per cent of these faults concerned brakes. The 2018 audit yielded similar results. Of the five trucks inspected, only one passed. Two of four trucks could have been “pink stickered”. A pink sticker means a vehicle is considered unroadworthy. Both audits revealed oil leakage. The phenomenon is significant because it is readily observable, in turn implying the Company has not been checking its fleet daily, as it ought to.

1      On 31 May 2019, Hinton J made an interim order preserving the Company’s position until the hearing before me.

[6]    The District Court is yet to allocate a date for the appeal. This has less significance than might otherwise have been so because s 106(3) of the Land Transport Act 1998 provides every decision of the Agency appealed continues in force pending determination of the appeal. The provision does not truncate the High Court’s ability to grant interim relief pending judicial review, but, unsurprisingly, influences its exercise of that relief. Any other approach risks creating “an incentive for appellants to launch judicial review proceedings simply to access the High Court’s [interim relief] jurisdiction”.2 Relatedly, a transport service licence is a privilege, not a right, in a system devised to promote public safety.3

[7]Because of all this, Courts are slow to grant interim relief in cases like this.

They do so only exceptionally.4

[8]    I am satisfied this case is sufficiently exceptional to warrant interim relief because of four reasons, taken together.

[9]    First, the Company’s judicial review claim is arguable. This observation should not be misunderstood as an endorsement of the proposed grounds of review, still less their number. These present as something of a Hydra. However, an arguable claim does exist. It arises from this combination:

(a)The Company’s safety record had been improving, a proposition the Agency acknowledged to the Company, and me.

(b)The Agency might have placed considerable weight on its 2018 audit. It is possible this audit can be impeached. By chance, one of the trucks the Agency failed was stopped and inspected earlier that day by Police. The Police report implies they had no safety concerns about the truck.

2      Director of Civil Aviation v Air National Corporate Limited [2011] NZCA 3, [2011] NZAR 152 at [30].

3      Cheyenne Haulers Ltd v New Zealand Transport Agency HC Auckland CIV-2001-404-2456, 12 May 2011 at [41].

4      See, for example, McCrostie Trucking Ltd v New Zealand Transport Agency [2018] NZHC 2736, [2018] NZAR 1840 at [50]..

(c)The decision to revoke the Company’s licence came only six months after the Company had submitted a plan to the Agency to improve its performance, and nine months after the Company was given finance to modernise its fleet.

(d)The Agency had given the Company a four-star operator safety rating. This rating was in force when the Agency revoked its licence. A four- star rating is given when a company has “a good level of compliance” with land transport safety legislation. According to Agency literature, the rating reflects “safety risk”. A host of things go into this mix, including certificate of fitness inspections, roadside inspections, and certain types of offending.

[10]   It is arguable [9](a), (c) and (d) were given inadequate weight, and the 2018 audit too much weight, especially given [9](b).

[11]   To be clear, the Agency may have a complete answer to all these points, and more. For example, it told me its operator safety rating was of questionable utility. I also record the Agency’s submission only one of the Company’s four proposed grounds was arguable “at best”. These are for another day. Again, the Company’s written recital of proposed grounds may not capture its better points.

[12]   Second, the Company’s fate is all but certain if interim relief is declined. So too the fate of its employees.

[13]   Third, public safety is unlikely to be compromised in the next three months if the Company continues to operate. It took the Agency five and a half months to advise the Company of its 2017 audit. It took the Agency almost two and a half months to advise the Company of its 2018 audit (though the Christmas vacation did intervene). These delays are not offered as a criticism of the Agency. Rather, they are offered as context, and as a tonic to the concerns that might otherwise reflexively accompany the concept of public safety. Here [9](d) is again relevant.

[14]   Fourth, conditions can address the Agency’s concerns over the next three months. These are more stringent than the Agency’s typical oversight. The Company agrees to them.

[15]Interim relief is granted, subject to these conditions:

(a)The Company must inspect its fleet daily and, every week, give the Agency its daily “walk round” sheets.

(b)If a daily inspection reveals a fault, the Company must promptly provide the Agency evidence that fault has been fixed.

(c)The Company must check its fleet and promptly give the Agency a vehicle check sheet every time it does so.

(d)If a check reveals a fault, the Company must promptly provide the Agency evidence that fault has been fixed.

(e)The Company must promptly alert the Agency of any:

(i)Incident involving any of its drivers.

(ii)Additions or other changes to its fleet.

[16]The Agency may apply to rescind interim relief if:

(a)The Company breaches any of the conditions above; or

(b)Circumstances materially change before 1 October 2019.

Downs J