Foreman Automotive Ltd v New Zealand Transport Agency

[2013] NZHC 1167

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-000455 [2013] NZHC 1167

UNDER  the Judicature Amendment Act 1972 and the Land Transport Act 1988

BETWEEN  FOREMAN AUTOMOTIVE LIMITED First Applicant

ANDRAJEEV SHARMA Second Applicant

ANDTHE NEW ZEALAND TRANSPORT AGENCY

Respondent

Hearing:         17 May 2013

Counsel:         G Wilkin for Applicants

S Pidgeon for Respondent

Judgment:      17 May 2013

Reasons:        21 May 2013

REASONS FOR JUDGMENT OF KATZ J

Counsel/Solicitors:

Lawyers of Hamilton Limited, Hamilton

S Pidgeon, New Zealand Transport Agency, Auckland

G L Wilkin, Barrister, Hamilton

FOREMAN AUTOMOTIVE LIMITED V SHARMA HC HAM CIV-2013-419-000455 [17 May 2013]

Introduction

[1]      The respondent, the New Zealand Transport Agency (“Agency”) has statutory responsibility for administration of the regulatory regime1  for vehicle warrant of fitness  (“WOF”)  inspecting  in  New  Zealand.  Vehicle  inspectors  and  vehicle inspecting organisations must be deemed “fit and proper” entities by the Agency in order to issue WOFs.

[2]      The first  applicant,  Foreman Automotive  Limited,  was  authorised by the Agency to operate two vehicle inspecting organisations: Foreman Automotive and Safeway Testing (operating at different locations).   The second applicant, Rajeev Sharma,  is  one  of  the  two  shareholders  and  directors  of  Foreman Automotive Limited.  Mr Sharma was authorised by the Agency to be a vehicle inspector.  The other shareholder and director was Savinder Singh, an unqualified mechanic who also worked at Foreman Automotive.

[3]      The Agency identified what it believed to be significant problems with the operation and management of the Foreman Automotive vehicle testing station. The Agency had concerns that vehicles that were not up to WOF standard were being inspected and issued with WOFs by Mr Sharma, thereby creating a risk to public safety.   The Agency’s concerns came to a head when a Mitsubishi vehicle which had been repaired by Mr Singh and issued with a WOF by Mr Sharma was involved in a fatal accident.

[4]      Peter Stevenson, the Agency’s senior adjudicator, reviewed the Agency’s files in relation to the applicants.  He made a preliminary determination that there were grounds to revoke the applicants’ appointments to run vehicle inspecting organisations or be a vehicle inspector (respectively).  He concluded that they were no longer fit and proper persons to do so.  Mr Stevenson notified the applicants of his preliminary view and gave them an opportunity to make submissions.  They did

so, but in the Agency’s view their submissions did not adequately address the key

1      The Land Transport Act 1998 (“Act”) and the Land Transport Rule: Vehicle Standards

Compliance 2002 (“Rule”).

concerns.  The Agency accordingly revoked the applicants’ authorisations to inspect

vehicles or issue WOFs (“Revocation Decisions”).

[5]      The applicants have appealed the Revocation Decisions to the District Court. There is, in effect, a statutory prohibition on the issue of a stay pending the outcome of an appeal, pursuant to s 106(3) of the Land Transport Act 1998 (“Act”).   The applicants have accordingly filed these proceedings under the Judicature Amendment Act 1972 (“JAA”) for the purpose of seeking interim relief (a stay) pending the hearing of their appeal in the District Court.  At the conclusion of the interim relief hearing I declined to make the interim orders sought, but deferred revoking the existing interim orders (which had been made by consent pending the interim relief hearing) for three weeks.  My reasons for those decisions are set out below.

Issues

[6]      The key issues are:

(a)      What approach should the Court take to interim relief under the JAA where there is an express statutory right of appeal that does not entitle the applicants to seek a stay of the Revocation Decisions pending the outcome of the appeal?

(b)Is interim relief under the JAA necessary to preserve the position of the applicants (the threshold issue)?

(c)      If so, should the Court exercise its discretion to grant relief, taking into account all relevant factors including the strength of the applicants’ claims under the JAA, the statutory regime, the repercussions (public or private) of granting interim relief, and the overall justice?

What  is  the  correct  approach  to  interim  relief  under  the  JAA  given  the statutory appeal right?

The statutory framework

[7]      The Act and the Land Transport Rule: Vehicle Standards Compliance 2002 (“Rule”) set out an exhaustive regime for the regulation of vehicle inspecting organisations and vehicle inspectors.

[8]      The Rule provides the Agency with a very wide discretion, focussed on public safety, to determine who is a “fit and proper” person to be a vehicle inspector or vehicle inspecting organisation. As counsel for the Agency submitted, inspecting vehicles to determine whether they are fit for the road requires a high level of regard for public safety.  It is often the case that a member of the public will not know that there is a fault with their vehicle.  Those customers must put their trust in the vehicle inspector to inspect their cars properly. The public safety imperatives are obvious.

[9]      Section 3.2 of the Rule contains comprehensive provisions for the revocation of an appointment as a vehicle inspector or vehicle inspecting organisation.  There was no issue before me that the procedural aspects of the Rule were complied with.

[10]     A  person  who  is  dissatisfied  with  a  decision  to  revoke  their  WOF authorisation has a general right of appeal to the District Court under s 106 of the Act.  The  District  Court  may  confirm,  reverse  or  modify  the  decision  appealed against.   However, s 106(3) provides that every decision of the Agency appealed against under the section continues in force pending the determination of the appeal. “No person is excused from complying with any of the provisions of this Act on the ground that any appeal is pending.”

Judicial review proceedings

[11]     Faced with the obstacle posed by s 106(3) of the Act, the applicants, in addition to filing an appeal, filed these judicial review proceedings together with an application for interim  relief.   The application for interim relief seeks an order suspending implementation of the Revocation Decisions “pending the determination

and outcome of an appeal to the District Court or further order of this Honourable Court”.   Similarly, the  memoranda of counsel  filed in support of the  plaintiffs’ interim relief application stated that:

This is an application for interim relief pending the determination of an appeal to the District Court seeking to overturn a decision of the respondent to revoke the applicants’ authorisation to issue warrants of fitness.

[12]     It is therefore clear that, somewhat unusually, interim relief is not being sought in these proceedings pending the outcome of the judicial review proceedings. Rather, interim relief is sought pending the outcome of the District Court appeal.  In reality it seems unlikely that the substantive judicial review proceedings will be pursued to a conclusion. The real focus is the District Court appeal.

[13]     Against this background I must consider the extent to which it is relevant that the interim relief being sought would potentially undermine a statutory regime which does not provide for a stay pending substantive appeal from the Revocation Decisions.

Previous case law

[14]     A similar issue was considered by the Court of Appeal in Director of Civil Aviation v Air National Corporate Limited.2 That case involved the suspension of an air operator certificate.  Such a suspension affords a right of appeal to the District Court, but s 66(3) of the Civil Aviation Act 1990 is in virtually identical terms to s 106 of the Act.  It provided that the suspension was to remain in force pending the appeal. The Court of Appeal observed that:3

The effect of this is to remove the power that the District Court would otherwise have to grant a stay pending appeal.  On the face of it, granting an interim order under s 8 in a case such as the present does not sit well with this provision.   Moreover, we do not see any justification for adopting a different approach to an application under s8 because the applicant wishes to preserve the benefit of a right of appeal to the District Court…

2      Director of Civil Aviation v Air National Corporate Limited [2011] NZAR 152.

3 At [28].

[15]     The Court of Appeal considered two oral decisions4 under s 106 of the Act in which High Court Judges had granted interim relief in judicial review proceedings despite there being no entitlement to seek a stay pending an appeal to the District Court, but went on to say that:5

We accept that the High Court has jurisdiction to make interim orders in this type of case.  This follows from the language of ss (4)(1) and 8 of the JAA. However, courts do need to be cautious in this context.  As we have said, the effect of statutory provisions such as s 66(3) of the Act and s 106(3) of the Land Transport Act is to deprive the District Court of the power to grant a stay on an appeal in circumstances where otherwise it would have had that power.   Too ready a resort to s 8 runs the risk of undermining such prohibitions and creating an incentive for appellants to launch judicial review proceedings simply to access the High Court’s s 8 jurisdiction. At the very least, this will be a relevant consideration to the exercise of the discretion. As we have noted, however, this is a preliminary view.

(Emphasis added)

[16]     In my view those observations are particularly apposite in this case.  In Air National the Court of Appeal concluded that Air National’s case was not strong, which had a direct bearing on Air National’s entitlement to interim relief.  It held that an interim order should not have been granted.

[17]     The issue came before the Courts again in Cheyenne Haulers Limited v New Zealand Transport Agency.6    In that case the Agency revoked Cheyenne’s transport services licence. Cheyenne appealed to the District Court and filed parallel judicial review proceedings in the High Court, in the context of which it sought interim relief.  Keane J reviewed the Air National decision and the two earlier oral decisions referred to by the Court of Appeal (Pohoikura Logging and J Mahoney & Sons). Keane J observed that:7

It is implicit in the Court’s analysis that it questioned whether interim relief should have been granted in those two cases. The Court appears certainly to say that interim relief is for the exceptional case, whatever that may be.

4      Pohoikura Waitoa Logging Limited v the Agency HC Gisborne CIV-2011-416-277,

19 November 2010, Heath J and J Mahoney & Sons Ltd v New Zealand Transport Agency

HC Napier CIV-2008-441-573, 5 September 2008.

5 At [30].

6      Cheyenne Haulers Limited v New Zealand Transport Agency HC Auckland CIV-2001-404-2456,

12 May 2011 Keane J at [31]- [35].

7 At [35].

[18]     Although the Court of Appeal in Air National was at pains to state that its views were preliminary only, given the urgency, approaching such applications with caution accords with both common sense and principle. Applications for interim relief under the JAA which are aimed solely at circumventing a statutory prohibition on stays pending appeal, should clearly be discouraged. Parliament has expressly mandated a regime in this case that does not provide for a stay pending appeal.  This is presumably on the basis that public safety considerations must outweigh private detriment in these types of cases.

[19]     Judicial review proceedings launched with the sole aim of circumventing s 106(3) could potentially border on abuse of process.   On the other hand, where there are strong grounds for judicial review (for example if serious breaches of natural justice occur, due to a failure to follow the statutory consultation process) interim relief may well be justified.  It is therefore necessary to focus closely on the merits of the application for judicial review, as opposed to the merits of the substantive appeal, when considering the appropriateness of interim relief under the JAA in these types of cases.   However, as Keane J observed in Cheyenne, cases where interim relief under the JAA will be appropriate where there are separate statutory appeal rights which preclude a stay are likely to be “exceptional”.

[20]     I therefore approach the interim relief application on the basis that, while I have jurisdiction to grant the relief sought, I should be cautious in the exercise of that jurisdiction.  Too ready a resort to  interim relief has the potential to undermine the   statutory   regime,   which   is   underpinned   by   important   public   safety considerations.

[21]     Against this background I briefly consider the general approach to interim relief under the JAA.

Interim relief – legal principles

[22]     Section 8(1) of the JAA provides the Court with a discretion to grant interim relief in judicial review proceedings. The leading authority is Carlton & United

Breweries Ltd v Minister of Customs.8   In that case Cooke J described the approach to be taken to s 8 in the following terms:9

In general, the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief – which must mean reasonably necessary.  If that condition is satisfied… the Court has a wide discretion  to  consider  all  the  circumstances  of  the  case,  including  the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief.

[23]     Richardson J made the following observations:10

Section  8  of  the  Judicature Amendment Act  1972  does  not mandate any particular approach to the statutory test of whether an interim order is necessary for the purpose of preserving the position of the applicant.  The legal answer must depend on an assessment  by  the  Judge  of  all  the  circumstances  of  the particular case. Clearly the nature of the review proceedings will be material. So will the character, scheme and purpose of the legislation under which the impugned decision was made. An appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the  applicant’s  challenge  and  the  expected  duration  of  an interim order.  Nor should the residual discretion under s 8 be circumscribed by reading qualifications into the broad language of the section.

[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.

Are interim orders necessary to preserve the position of the applicants?

[25]     It is not in dispute that without the orders being granted, the first applicant will not be able to operate the Safeway and Foreman Automotive vehicle testing

stations in their current guise. Should the Revocation Decisions be implemented both

8      Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).

9      At 430.

10     At 430 – 431.

Foreman Automotive and Safeway will have to close their doors.   It is likely that most or all of their employees will have to be either suspended or laid off.

[26]      However, the Agency submitted that that is not the end of the matter.  The two testing stations would still be able to continue in operation (pending the outcome of the appeal) if the applicants reached a commercial arrangement with an appropriately licensed third party that satisfies the legal requirements.

[27]     The Agency’s evidence was that it has previously approved arrangements of this nature, provided that the end result was that it could be satisfied that fit and proper persons  within  the meaning of regulatory regime were in  control  of the operations pending appeal.  This option has not yet been explored by the applicants because they were not previously aware that the Agency might be open to such an arrangement.

[28]     In the circumstances it is appropriate to err in favour of the applicants on this issue.    I  therefore  find  that  the  threshold  test  is  satisfied.    Interim  orders  are reasonably necessary to preserve the current position of the applicants, pending the outcome of the judicial review proceedings.   I note, however, that alternative arrangements which would mitigate the potential impact of the Revocation Decisions may be available.

[29]     Once the threshold test has been satisfied it becomes necessary to step back and consider whether interim relief is appropriate in all of the circumstances.

The strength of the judicial review claims

The statement of claim

[30]     The statement of claim pleads the following errors on the part of the Agency: (a)     That  the decision  relating to  Safeway was  based  on  an  irrelevant

consideration, namely that Mr Sharma was a director of Foreman

Automotive Limited which operated both premises.  Mr Sharma did not, however, carry out inspections or issue WOFs at Safeway.

(b)The Revocation Decisions give “too much weight” to minor considerations.   In particular the Agency is said to have relied on relatively minor shortcomings on the part of Foreman Automotive which occurred up to five years ago.

(c)      The Revocation Decisions rely “upon a determination of events that has not yet been finally determined and will not be until a Coroner’s inquest later this year”.  In essence it is said that it is for the coroner, not the Agency, to determine the cause of the fatal crash involving the vehicle  which  Foreman Automotive  had  repaired  which  was  later involved in a fatal accident.

[31]     For  completeness  I  will  also  briefly  consider  whether  the  Revocation Decisions  could  be  said  to  be  irrational,  in  that  they were  unreasonable  in  the Wednesbury sense. Although this was not pleaded it was argued orally at the interim relief hearing.

[32]     The applicants approached the interim relief hearing as if it were, in effect, the hearing of the substantive appeal (albeit without cross-examination). Extensive evidence, including expert evidence, was put before the Court aimed at establishing that the Agency was substantively “wrong”.  In particular, it was submitted that the fatal accident involving the Mitsubishi vehicle was not caused by defective workmanship by the applicants.   Unfortunately there was  minimal focus on the specific merits of the judicial review claims.  Nevertheless, based on the extensive information before the Court, it is possible to form a preliminary view as to the strength of those claims.

Did the Agency take into account an irrelevant consideration in relation to the

Safeway revocation?

[33]     As the Safeway testing station was operated by the same management as Foreman Automotive, the Agency’s concerns extended to Safeway.  This was despite the fact that the particular incidents of concern occurred at the premises of Foreman Automotive.

[34]     The Agency considered  that  it  was  not  appropriate  to  allow  Safeway  to continue in operation given the common involvement of Mr Sharma (a director and

50% shareholder of Foreman Automotive Limited) in both businesses.  In short, the Agency could not be satisfied that the persons in control of the company which managed both Foreman Automotive and Safeway were fit and proper persons to manage those operations.

[35]    The applicants plead that Mr Sharma’s involvement in Safeway was an irrelevant consideration. There is another WOF inspector based at Safeway who has not been the subject of any complaints or queries. Mr Sharma has undertaken not to conduct WOF inspections (at either location) pending the appeal. None of the incidents relied upon by the Agency occurred at Safeway.  It was therefore submitted that there was no justification for revoking Safeway’s authorisation.

[36]     In my view, at this preliminary stage at least, the claim that Mr Sharma’s involvement  in  Safeway was  an  entirely irrelevant  consideration  is  weak.    The Agency made adverse findings regarding Mr Sharma’s own performance as a vehicle inspector  (including in  relation  to  the vehicle involved  in  the fatal  crash).   Mr Sharma is a director and 50% shareholder of the company which operated Safeway. He was involved in Safeway’s management.  That appears to be a relevant factor for the Agency to take into consideration, along with all other relevant matters.   The weight to be given to such a factor is a matter for the Agency.

Did the Revocation Decisions give “too much weight” to minor considerations (and,

if so, is this a reviewable error)?

[37]   The applicants submitted that, apart from the allegations regarding the Mitsubishi vehicle involved in the fatal accident, every other incident relied on by the Agency fell into the category of “minor” or had resulted in appropriate remedial action being taken. The applicants submitted that many of these “minor” matters had taken place a considerable time ago and that the decision maker had given too much weight to them.

[38]     The weight to be given to relevant factors in the decision making process is generally a matter for the decision maker, unless the statute prescribes appropriate weighting (which it does not in this case).11   Further, Mr Stevenson deposed that he accorded different weight to different relevant factors, with more weight being accorded to the more serious incidents.

[39]     The second limb of the judicial review application also appears to be weak.

Did the Agency incorrectly rely on matters yet to be determined?

[40]     The  third  (and  final)  pleaded  ground  of  review  is  that  the  Revocation Decisions rely “upon a determination of events that has not yet been finally determined and will not be until a Coroner’s inquest later this year”.  The cause or causes of the death of the driver of the Mitsubishi vehicle is to be the subject of a Coroner’s Inquest to be held in August 2013.  The applicants submitted that it is the role of the coroner to determine the cause of death of the person involved in the fatal

car crash.12   It is not for the Agency to determine the extent to which the applicants’

repair of the vehicle may have contributed to the accident.

[41]     The Agency accepted that it was not its role to determine the cause of death of the driver of the Mitsubishi.  The Agency submitted that it was, however, entitled

11     Macky v Commissioner of Inland Revenue (2005) 22 NZTC 19,489; Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606; Gummer v Auckland District Court HC Auckland AP50- SW02, 18 October 2002; Re Visitor Q [2004] NZAR 329.

12     Coroners Act 2006, s 4.

to  form  a view that  the repair job  done on  the Mitsubishi  (by Mr  Singh)  was deficient and that Mr Sharma should not have subsequently passed the vehicle for a WOF.  In this respect Mr Stevenson deposed as follows:

I believe on reasonable grounds that the installation of the new tie-rod end to the right hand front wheel of the Mitsubishi vehicle UO8833 by Mr Singh on or about 5th May 2012 was not carried out diligently or competently and that when the vehicle was issued with a Warrant of Fitness on 5th  May 2012 by Vehicle Inspector Sharma, those repairs were not inspected and the original listed faults were not re-checked thoroughly, as should have occurred.  The vehicle on 5th May 2012 was therefore not up to warrant of fitness standard and this constituted a risk to public safety.

[42]     Needless to say, those findings are strenuously disputed by the applicants and are the focus of the District Court appeal. The issue before me is much narrower.

[43]     In my view the argument that the Agency was required to defer making any factual findings as to the adequacy of the repairs to the vehicle, pending the outcome of the coroner’s inquest, is weak.   It is incumbent upon the Agency to monitor, review and investigate the performance of vehicle inspecting organisations and vehicle inspectors in order to reduce the risk to public safety.   It has a statutory obligation to do so.  Part of its role requires it to make factual findings in relation to matters such as whether a vehicle was repaired in a faulty manner and whether it was subsequently passed as  compliant when it was  not.   The applicants  are able to dispute any such factual findings in the District Court in their s 106 appeal (and have done so).

[44]     The coroner’s role is different to that of the Agency.   The coroner, under separate legislation, is required to determine the cause of death of the driver of the Mitsubishi vehicle.  The coroner will not be bound by any factual findings made by the Agency.  On the other hand, the Agency has no obligation to await the outcome of the coroner’s inquiry.   To do so would risk undermining the important public safety purposes  of  the Act.    Both  the  coroner  and  the Agency have  their  own statutory obligations and statutory processes to follow.   The argument that it was improper for such processes to run in parallel, rather than sequentially, appears to be weak.

Were the Revocation Decisions irrational?

[45]     The applicants submitted that there was a strongly arguable case that the Revocation Decisions should be overturned and that they are irrational in the Wednesbury sense.

[46]     In support of this submission, evidence (including expert evidence) was filed which was aimed at proving that the Agency had erred in concluding that faulty repair work by Foreman Automotive had caused or contributed to the fatal accident. In particular, it was submitted that the circumstances surrounding the crash are such that it is more likely than not that the driver committed suicide.

[47]     The applicants’ careful review of the evidence demonstrated that they appear to have some strongly arguable grounds of appeal in the District Court.  That is not sufficient to establish, however, that the Revocation Decisions were unreasonable in the Wednesbury sense, namely that no reasonable authority in the position of the Agency could have come to such decisions.

[48]     On the contrary, it is apparent that the Agency undertook a comprehensive investigation, followed the correct process (including in relation to consultation) and reached a carefully considered and fully reasoned decision.  There was an evidential basis  for  that  decision  (albeit  one  that  is  challenged  by  the  applicants).    The applicants may (or may not) be able to establish on appeal that the Revocation Decisions were substantively wrong.  However the argument that the decisions were so unreasonable that no reasonable decision maker in the position of the Agency could have made them is weak.

Conclusion re strength of judicial review claims

[49]     Given the nature of judicial review, the issues before this Court are inevitably much narrower than the issues raised in the general appeal before the District Court. While the applicants may (or may not) have strong grounds of substantive appeal in the District Court, the judicial review claims in this Court all appear to be very weak.

The statutory regime

[50]   The regulatory regime has been briefly outlined at [8] to [11] above. Underpinning the regime is the promotion and maintenance of road and vehicle safety.  The preamble to the Act provides that it is “an Act to promote safe road user behaviour and vehicle safety”.13

[51]     An appointment as a vehicle inspecting organisation or vehicle inspector is premised on the fit and proper person test provided for in s 2.6 of the Rule. Such an appointment is a privilege, not a right.   Public safety will always be a critical and ongoing factor.   In this case the Agency has determined that the applicants have breached legislative requirements that go to the heart of maintaining public safety. The correctness of that decision will be tested in the District Court on appeal.

[52]     The  Rule  provides  for  a  comprehensive  process  to  be  followed  before revocation can occur.  That process was followed in this case.  Parliament has then allowed for an appeal to the District Court.  However, Parliament has mandated that once a decision is made, it is to take effect unless and until a Court overturns it on appeal.  No interim relief is provided for in the regulatory process.  Once the Agency has determined that a vehicle inspecting operation or a vehicle inspector should no longer operate, the private interests of those parties are seen as secondary to the broader interests of public safety, in terms of the Act.

[53]     Parliament has therefore set where the balance should be struck in “ordinary” cases.  Public safety is paramount unless and until the Agency is shown to be wrong. It was to avoid undermining this statutory regime that the Court of Appeal in Air National urged caution in cases such as this. This is a significant factor against the granting of interim relief in this case.

Overall Justice

[54]     The private financial consequences to the company and its shareholders of the Revocation Decisions being implemented are severe.  The Revocation Decisions

13     Preamble to the Land Transport Act 1998.

will require Foreman Automotive Limited to close its two businesses if some alternative commercial arrangement (for example finding a person to run the businesses who has the Agency’s approval) cannot be reached.  Staff will lose their jobs.  The shareholders of the business may lose their investment.  The directors may face personal liability for ongoing business costs, pursuant to personal guarantees.  If the businesses are closed for any length of time there may be considerable damage to reputation and credibility and the businesses will struggle to re-establish themselves. These are all serious matters and need to be weighed carefully in the balance in reaching a decision as to whether interim relief should be granted.

[55]     Against this, however, I must balance various other matters, including that: (a)        the judicial review claims are very weak;

(b)interim relief will, to some extent at least, undermine the statutory regime (which does not allow for a stay pending appeal); and

(c)       important considerations of public safety are involved.

[56]     In terms of public safety, the applicants submitted that there is no real or substantial risk to the public from Foreman Automotive or Safeway being able to continue to inspect and issue WOFs pending the outcome of the appeal to the District Court.   In particular, Mr Sharma (who appears to have been involved in all the incidents of concern) has undertaken not to be involved in the issuing of WOFs pending the appeal.

[57]     The Agency takes a contrary view. It believes there would potentially be ongoing public safety issues if the Revocation Decisions were stayed.

[58]     The Agency  is  a  highly  specialised  statutory  body  with  staff  that  have considerable  experience  and  expertise  in  vehicle  safety  issues.    The  legislative regime shows deference to that expertise by, in effect, prohibiting the granting of a stay pending appeal.  Given that the public safety issues are not clear cut, I defer to the Agency’s specialty expertise in the area.   I accept that staying the Revocation

Decisions may potentially give rise to public safety issues.   In such circumstances considerations of public safety will generally prevail over  private detriment.

[59] I note that it may be possible to address any public safety concerns through a commercial proposal of the type referred to at [26] – [27] above. I therefore encouraged the parties at the conclusion of the hearing to explore whether such an arrangement is possible in this case. I deferred revocation of the existing interim orders for three weeks to allow time for this issue to be investigated.

[60]     Taking into account all the matters I have outlined, I concluded that the application for interim relief should be declined. I am mindful of the serious impact of the Revocation Decisions on the applicants.  This is the primary factor that weighs in favour of interim relief.  Against that, however, is the fact that the judicial review claims appear to be very weak, that granting of relief would undermine the statutory regime, and that important public safety considerations are in issue.

Orders made

[61]     I accordingly made the following orders at the conclusion of the interim relief hearing:

(a)       The application for interim relief is declined.

(b)The interim orders made by Wylie J on 22 April 2013 are revoked with effect from 7 June 2013.

(c)      In relation to costs my preliminary view is that the respondent is entitled to scale costs on a 2B basis.  However, leave is granted to file memoranda  on  costs  if  either  party  takes  a  different  view  or agreement cannot be reached. The respondent’s memorandum (if any) is  to  be  filed  within  28  days  and  the  applicants’ within  7  days

thereafter.

Katz J