Hossain v New Zealand Transport Agency HC Auckland CIV-2011-404-004986

[2011] NZHC 1107

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-004986

BETWEEN  DELWAR HOSSAIN Plaintiff

ANDTHE NEW ZEALAND TRANSPORT AGENCY

Defendant

Hearing:         13 September 2011

Appearances: A Comeskey for Plaintiff/Applicant

A McClintock for Defendant/Respondent

Judgment:      14 September 2011 at 3:00 PM

JUDGMENT OF VENNING J

This judgment was delivered by me on 14 September 2011 at 3.00 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           J Ropati, Auckland

Meredith Connell, Auckland

Copy to:            A Comeskey, Auckland

HOSSAIN V THE NEW ZEALAND TRANSPORT AGENCY HC AK CIV-2011-404-004986 14 September

2011

Introduction

[1]      The applicant makes his living as a taxi driver.   The respondent Authority disqualified  him  from  holding a driver licence  passenger  endorsement  (in  other words from operating as a taxi driver) for a period of four years from 25 August

2011.  The applicant has appealed against that decision in the District Court.  He has also issued judicial review proceedings seeking to have the disqualification set aside or quashed.

[2]      This judgment deals with his application for interim relief.   He seeks an interim order reinstating his taxi licence pending determination of the substantive judicial review proceedings.

Background

[3]      The applicant is a 44 year old Bangladeshi.   He has lived in New Zealand since 2000.  He is a self-employed taxi driver.  He is married and has two children.

[4]      In June 2008 the applicant was granted a licence entitling him to drive a taxi. From that time on he has been working as a taxi driver.   He has, in that time, committed a number of traffic infringements, including running two red lights.  The main issue however, arises from his actions on 19 September 2010.

[5]      On that day the applicant carried out a u-turn in Karangahape Road.  U-turns were prohibited at the spot he carried out the manoeuvre.   Constable Pamplin, a police motorcyclist, stopped the applicant and issued an infringement notice.

[6]      After issuing the ticket the officer told the applicant he could go, but then remembered there was an alert relating to the applicant’s car.  The officer stepped back to the driver’s door and said “Hold on before you go”.  Although the applicant does not accept what followed, the officer says he told the applicant to stop and reached in through the open window of the car to try and stop the applicant driving

off.   The officer says that despite that, the applicant started to drive away.   The officer still had his arm inside the car.  The applicant started to accelerate and tried to push the officer’s hand away.   Although the officer shouted “Stop, stop” several times the applicant continued accelerating, with the officer running beside him.  The officer managed to pull clear of the car.  The applicant was stopped a short distance away by other police officers.  The applicant was then arrested and spoken to at the station.  He was charged with failing to stop when required, failing to remain stopped and operating a vehicle in a dangerous manner.

[7]      After the applicant was charged, the respondent suspended the applicant’s taxi licence pending the outcome of the prosecution (or earlier withdrawal at the discretion of the Agency).

[8]      On 19 May 2011 Judge Cunningham sitting in the District Court at Auckland stayed  or  dismissed  the  charges  against  the  applicant  on  the  basis  of  undue, systematic delay (it being the third time the case had been before the Court for fixture).  The prosecution was ready to proceed that day but a Svengali interpreter (as was required by the applicant) was not available.

[9]      Following the decision of the District Court, the respondent withdrew the suspension but gave notice that Mr Beedell, the respondent’s delegate, proposed to make an assessment whether the applicant was a fit and proper person to hold the taxi licence.   On 13 June 2011 Mr Beedell gave the applicant notice of the respondent’s proposal to disqualify him as from 20 July 2011.   The applicant was advised that he could make submissions concerning the proposed disqualification. Counsel responded with full submissions on the applicant’s behalf on 12 July 2011. He  challenged  the  respondent’s  right  to  consider  the  applicant’s  actions  on  19

September 2010.

[10]     Mr  Beedell  then  replied  with  a  letter  of  2  August  2011  confirming  he considered he was entitled to take into account the actions of the applicant on 19

September and invited further submissions.   The applicant again made further submissions  through  Mr  Comeskey.    After  considering  those  submissions,  the

respondent confirmed the decision to disqualify the applicant by notice dated 15

August 2011, effective from 25 August 2011.

Procedural steps

[11]     The applicant has appealed the decision to disqualify him from holding a taxi

driver’s licence.  The appeal is in accordance with s 106 of the Land Transport Act

1998.  The appeal is to the District Court.  Counsel advise it should be heard within the next six to eight weeks.  There is, however, no jurisdiction for the District Court to grant a stay pending the hearing of the appeal.[1]

[1] Section 106(3), Land Transport Act 1998.

[12]     At the same time the applicant commenced these judicial review proceedings alleging the decision was wrong in law as the respondent acted ultra vires in making the decision based on “offences which were not proven at law, and for which no convictions were entered against the [applicant]”.  He also pleads the decision was made contrary to the tests set out in ss 30C and 30D of the Land Transport Act and further, that the respondent erred in law by not taking into account s 27 of the New Zealand Bill of Rights Act 1990.

Principles to apply on an application for interim relief on judicial review

[13]     Section 8(1)(c) of the Judicature Amendment Act 1972 reads:

8        Interim orders

(1)       Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

...

(c)       Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

[14]     As the applicant’s licence has been revoked, the interim relief sought is not so much to preserve the applicant’s position but to effectively reinstate it.  However, Ms McClintock accepted that a purposive approach is to be taken to the interim relief available under s 8(1) and if otherwise appropriate, the order could be made.  That is the approach that was taken in other cases under the Land Transport Act:  Pohoikura

Waitoa  Logging  Limited  v  The  New  Zealand  Transport  Agency[2]   and  Cheyenne

Haulers Limited v The New Zealand Transport Agency.[3]

[2] Pohoikura Waitoa Logging Limited v The New Zealand Transport Agency HC Gisborne CIV-2010-416-000277, 19 November 2010.

[3] Cheyenne Haulers Limited v The New Zealand Transport Agency HC Auckland CIV-2011-404-002456, 12 May 2011.

[15]     The issue is whether the applicant can satisfy the Court the interim relief is reasonably necessary to preserve the position pending the hearing of the substantive application for review.  If that condition is satisfied the Court has a wide discretion to consider  all  circumstances  of  the  case,  including  the  apparent  strengths  or weaknesses of the claim and all the repercussions, public or private of granting interim relief:  Carlton & United Breweries Ltd v Minister of Customs.[4]

[4] Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.

[16]     There is a further overlay in a case such as the present, where Parliament has determined that a stay is not available pending the hearing of an appeal from a decision disqualifying a licence holder.  In Director of Civil Aviation v Air National Corporate Ltd[5] the Court expressed the preliminary view:

[30]      ... 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.

[5] Director of Civil Aviation v Air National Corporate Ltd [2011] NZCA 3.

[17]     Related to that is the issue of public safety.  The licensing of taxi operators requires consideration of public safety issues.

Decision

[18]     Mr  Comeskey  emphasised  the  financial  impact  on  the  applicant  and  the hardship that the disqualification has had, and will have, on him and his family.  The applicant is at present the sole income earner in the household.  He and his wife have a mortgage.  They are reliant on the applicant’s income as a taxi driver to meet the outgoings under the mortgage and other household expenses.

[19]     However, as Ms McClintock submitted Parliament would have been aware that a self-employed taxi driver who was disqualified would be unable to earn an income.  Nevertheless Parliament has provided for such an outcome in the interests of public safety.  Further, both the Court of Appeal in Air National and Keane J in Cheyenne confirmed that personal hardship cannot overcome an otherwise fatal weakness in the grounds for review.  The applicant’s private interests will not prevail unless  he  can  show  he  has  a  strong  case  on  the  substantive  judicial  review application.

[20]     Mr Comeskey emphasised that the original suspension had been imposed pending the outcome of the prosecution against the applicant.   It had been lifted when  the charges  against  the applicant  had  been stayed  or  dismissed  by Judge Cunningham.   Mr Comeskey criticised the respondent for still determining to disqualify the applicant in reliance on the information and evidence relating to those charges even though the charges had been stayed or dismissed.

[21]     Mr Comeskey submitted generally that the manner in which Mr Beedell had taken account of the evidence was wrong.  The applicant had never accepted that he was guilty of the offences.  Mr Comeskey submitted that, as the charges had been stayed and the applicant was not guilty then he should not be required to establish his innocence again.   He submitted that the respondent had effectively overridden the decision of the District Court dismissing the charges.

[22]     I  am  unable  to  accept  Mr  Comeskey’s  argument.    First,  the  suspension pending the hearing in the District Court was imposed under a different process to that which led to the disqualification imposed by the respondent after the stay and

dismissal of the charges by Judge Cunningham.   Different considerations were involved.

[23]     The initial suspension was imposed pursuant to s 87D(2)(b) Land Transport Act, namely on the grounds that the applicant had been charged with an offence of such a nature that the interests of public safety would require a person convicted of such an offence to not hold a taxi licence.   It was clearly a temporary suspension pending determination of the charges before the District Court.  It was appropriate for the respondent to terminate that suspension following the stay and dismissal of the charges in the District Court.

[24]     However, the disqualification imposed on the applicant and subject to the current proceedings was imposed under a different statutory provision.   The disqualification was imposed under s 87A Land Transport Act on the grounds the applicant was not a fit and proper person to hold a taxi licence.

[25]     In determining whether or not the applicant was a fit and proper person to hold the taxi licence the respondent was entitled to consider the factors referred to under s 30C(2) Land Transport Act.

[26]     Section 30C(2) provides:

(2)      For the purpose of determining whether or not a person is a fit and proper person for any of the purposes of this Part, the [Agency] may consider, and may give any relative weight that the [Agency] thinks fit   having   regard   to   the   degree   and   nature   of   the   person's involvement in any transport service, to the following matters:

(a)      the person's criminal history (if any):

(b)       any offending by the person in respect of transport-related offences (including any infringement offences):

(c)      any history of serious behavioural problems:

(d)       any complaints  made  in  relation  to  any transport  service provided or operated by the person or in which the person is involved, particularly complaints made by users of the service:

(e)       any history of persistent failure to pay fines incurred by the person in respect of transport-related offences:

(f)       any other matter that the [Agency] considers it is appropriate in the public interest to take into account.

[27]     The respondent was entitled to consider in particular, the relevant factors under s 30C(2)(b) and (f).   The applicant had previous offending in relation to transport related offences and, even accepting that the charges against the applicant had been stayed and dismissed, the respondent was entitled to take into account the information it had before it in relation to the applicant’s actions on 19 September

2010.  That information comes within the scope of s 30C(2)(f) as “any other matter the  [respondent]  considers  it  is  appropriate  in  the  public  interest  to  take  into account”.

[28]     The matter is put beyond doubt by ss 30C(4) and 30G Land Transport Act. Section 30C(4) provides the respondent may take into account any other matters and evidence as the respondent considers relevant (in addition to any conviction).  Also, as Ms McClintock observed s 30G confirms that the respondent may, for the purpose of determining whether or not a person is a fit and proper person for any of the purposes of the Act, seek and receive any information it thinks fit and consider information obtained from any source.

[29]     The respondent was clearly entitled to take into account the information it

had relating to the applicant’s alleged actions on 19 September 2010.

[30]     As discussed with counsel, the transcript of the DVD and interview between the officer and the applicant may have been subject to a challenge to admissibility in the criminal proceedings, but, even putting the transcript of that interview to one side, there was the witness statement of the officer, the summary of facts, and the decision of Judge Cunningham before the respondent. The applicant was advised the respondent intended to rely on that information.   He chose not to set out his explanation for his actions.

[31]     I also note that while Judge Cunningham dismissed the charges, in the course of her judgment she made it clear she was doing so because of the delay in the particular circumstances of that case and noted that:

[13]      It seems to me that if the police are able to prove the charge and while I should not make any assessment of it based on the information I have, I can say that it seems to me that the police case is reasonably strong; that he would receive that six month disqualification;   that plus the eight month  inability  to  carry  passengers  that  he  has  already  been  subject  to because of the notice served on him under those provisions of the Land Transport Act, effectively mean that he would not have been able to work as a taxi driver for a period of 14 months.

[32]     The applicant’s claim the respondent acted ultra vires in making the decision based on offences which were not proven at law and for which no convictions were entered  is  misconceived.    The  decision  was  not  made  based  on  offences  or convictions (other than to the extent the applicant’s previous convictions for running red lights were relevant).  Insofar as it related to the 19 September 2010 incident it was based on the actions of the applicant.   Even  though the applicant was not convicted of any offence arising from those actions, the respondent was entitled to take the applicant’s actions into account when determining whether he was a fit and proper person to hold a taxi licence.

[33]     While s 30D refers to additional criteria (to that in s 30C(2)), and identifies serious behavioural problems, offending and complaints which may not have applied to the applicant, that does not advance his case.  The factors in s 30D are clearly stated to be without in any way limiting the matters the respondent may consider under s 30C(2).

[34]     If the respondent was satisfied the applicant had driven off when the police officer had his arm inside the car and was asking him to stop, that would be a proper matter  for  the  respondent  to  take  into  account  when  considering  whether  the applicant was a fit and proper person to hold a taxi licence.  Such actions raise issues impacting on public safety.  That is particularly so when taken with the applicant’s previous convictions for traffic related offending such as failing to comply with red traffic signals (on two occasions).

[35]     The last ground of review suggests that the defendant erred in law by not taking  into  account  s 27  of  the  New  Zealand  Bill  of  Rights.    That  also  poses difficulties for the applicant.   The applicant undoubtedly had the right to the observance of principles of natural justice.  However, the procedure for determining

disqualification is appropriate is prescribed by ss 30W, 30X and 30Y Land Transport

Act.

[36]     The respondent satisfied the procedural requirements of those sections in this case.   The applicant was given notice of the  respondent’s intention to make an adverse decision, and was advised of the material that the respondent relied on.  He was given, and took, the opportunity to make submissions.   After receiving the submissions the respondent then wrote again to the applicant setting out its position and inviting any further submissions.  Counsel then addressed submissions on behalf of the applicant.  Mr Comeskey made a number of good points in those submissions

including:

the officer had originally told the applicant he could go;

that the officer had never been cross-examined on his statement;

there were real concerns over the applicant’s interview;

were there other witnesses?

However, as noted, the applicant chose not to set out what he said had happened.  On the face of the material before the Court it seems the respondent considered those submissions before making the ultimate determination.   In the notice confirming disqualification, Mr Beedell noted that he was not persuaded by the submissions.

[37]     On the information currently before the Court the substantive application for judicial  review  faces  a  considerable  number  of  hurdles.     The  merits  of  the substantive application for judicial review do not support the application for interim relief.

[38]     While the applicant and his family are affected by the disqualification, as Ms McClintock submitted, the applicant is not prevented from having someone else drive his taxi for him and coming to a suitable arrangement as to splitting the proceeds earned.  Further, Parliament has clearly contemplated that people such as

the applicant may lose their livelihood in the event of disqualification and yet has still provided that there is to be no stay pending an appeal.  Public safety trumps the personal position of the applicant.

Result

[39]     The applicant fails to make out a basis for the interim relief sought in this case. The application for interim relief is dismissed.

[40]     Costs should follow the event in the normal way.  Costs on a 2B basis are appropriate.

Directions

[41]     In the event the applicant wishes to pursue the substantive review application, he is to file any further affidavits in support by Friday 23 September 2011.

[42]     The respondent is to file any affidavit in reply by 30 September 2011.

[43]     The Registrar is to allocate a half day fixture on the substantive application for judicial review on the first available date after 10 October 2011.

Venning J