Keeley v New Zealand Transport Agency
[2020] NZHC 1768
•22 July 2020
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2019-470-132
[2020] NZHC 1768
BETWEEN JOSEPH KEELEY
Plaintiff
AND
NEW ZEALAND TRANSPORT AGENCY
Defendant
Teleconference: 21 July 2020 Appearances:
C A Donaldson for the plaintiff
N S Wood and O E Battell-Wallace for the defendant
Date of judgment
22 July 2020
JUDGMENT OF PALMER J
This judgment was delivered by me on 22 July 2020 at 10.00am.
Pursuant to Rule 11.5 of the High Court Rules
………………………… Registrar/Deputy Registrar
Solicitors:
Wynn Williams, Christchurch Chapman Tripp, Wellington
KEELEY v NEW ZEALAND TRANSPORT AGENCY [2020] NZHC 1768 [22 July 2020]
Suspension and revocation
[1] On 17 December 2019, the New Zealand Transport Agency (NZTA) suspended the appointment of Mr Joseph Keeley as a Warrant of Fitness vehicle inspector. Mr Keeley appealed to the District Court and brought these proceedings by way of judicial review. He also applied for interim relief.
[2] On 20 December 2019, Brewer J granted interim relief without notice, to preserve Mr Keeley’s position pending determination of an on notice application for interim relief or until Mr Keeley’s appeal and application for judicial review had been determined.1 That relief prohibited NZTA “from taking any further action that is or would be consequential on the decision to suspend the plaintiff’s appointment as a Vehicle Inspector”.2 Brewer J considered there was force in Mr Keeley’s submission that the reasons given by NZTA for suspension “arguably do not demonstrate that the plaintiff ‘presents a significant risk to land transport safety’”.3 Brewer J was satisfied the interim relief would not compromise public safety.4
[3] Later the same day, on 20 December 2019, Brewer J also granted interim relief on a without notice basis in favour of TTP Taupō Ltd (TTP), Mr Keeley’s company.5 NZTA had apparently also suspended TTP’s appointment as an inspecting organisation.
[4] On 29 January 2020, the parties filed a joint memorandum of counsel agreeing the interim relief ordered be varied and continued and the proceeding be adjourned. The memorandum stated:
(a)NZTA had notified Mr Keeley on 19 December 2019 that it was considering revoking his appointment as a vehicle inspector on the basis of the same factual matters as his suspension.6 The parties sought the adjournment because it was “almost inevitable” that the suspension
1 Keeley v New Zealand Transport Agency [2019] NZHC 3464.
2 At [14](a).
3 At [11].
4 At [12].
5 Keeley v New Zealand Transport Agency (No 2) [2019] NZHC 3496.
6 Joint memorandum of counsel, 29 January 2020, at [6]-[7].
decision would be overtaken by NZTA’s consideration of revocation.7 The parties considered that the suspension decision, and the proceedings based on it, were likely to be overtaken by a decision to revoke (in which case there would be no appointment to suspend) or not to revoke.
(b)Mr Keeley and his lawyers had been mistaken in their impression that NZTA had suspended TTP’s appointment as an inspecting organisation. The parties agreed that no suspension of TTP had been made and that the interim orders regarding TTP should be rescinded.
(c)A notice of discontinuance would be filed promptly if the parties were able to resolve matters between them, once NZTA’s revocation decision was made.8
[5] On 7 February 2020, Peters J made orders accordingly. So the current interim orders are those made by Brewer J on 20 December 2020 in relation to Mr Keeley and subject to the additional condition that “Mr Keeley must ensure that he allow at least 30 minutes for each warrant of fitness inspection that he carries out”. Mr Keeley has been continuing to operate as a WOF vehicle inspector, under TTP’s appointment as an inspecting organisation.
[6] On 16 July 2020, NZTA issued notices revoking Mr Keeley’s appointment as a vehicle inspector and TTP’s appointment as an inspecting organisation.
Submissions
[7] NZTA considers the December 2019 suspension is now effectively spent, as there is no longer an appointment to suspend. Mr Wood, for NZTA, submits there is no longer any practical utility in continuing the appeal or judicial review of the suspension decision. He submits the current interim relief does not extend to TTP and the interim relief for Mr Keeley was granted only in relation to the suspension, not the revocation. Alternatively, Mr Wood submits that if Mr Keeley considers he is
7 At [12].
8 At [23].
protected by the current interim relief he can act on that basis, at his own risk. In the absence of any indication of the grounds of any proposed further judicial review, NZTA opposes further interim relief. But Mr Wood says NZTA recognises there would be some sense in keeping the proceeding on foot so it can be “re-purposed” if Mr Keeley and TTP decide to seek judicial review of the revocation decisions. NZTA consents to TTP being added as a second plaintiff and the statement of claim being amended under r 7.77(4) of the High Court Rules 2016 (the Rules).
[8] Ms Donaldson, for Mr Keeley, does propose to “re-purpose” the proceeding and agrees that TTP should be added as second plaintiff, leave should be granted to the plaintiffs to file an amended pleading and leave should be reserved for any party to apply for further directions if that occurs. But she submits the revocation decision is in breach of the interim orders of Brewer J regarding Mr Keeley. She submits the orders are currently in force and permit Mr Keeley to continue operating. She submits they cannot be superseded by unilateral action by NZTA and no further application for interim relief is required. She also submits any effort by NZTA to revoke TTP’s appointment would be improper, as it would breach the clear intention of the interim orders to allow Mr Keeley to continue operating and would subvert the second judgment of Brewer J regarding TTP. She does not dispute NZTA has the power to decide on revocation in relation to Mr Keeley and TTP but submits those decisions cannot take immediate effect. Ms Donaldson submits a hearing should be scheduled for up to one day for an on notice application for interim relief to be heard. In the meantime, she submits the current interim orders should be extended to include TTP and to last until the on notice application is determined.
Interim orders
[9] I agree it is convenient to all parties, and the Court, for the statement of claim to be amended to extend to challenging the revocation decision. I grant leave for TTP to be added as second plaintiff to the proceeding and the statement of claim to be amended under r 7.77(4) of the Rules, in accordance with the timetable set below.
[10] The interim orders granted by Brewer J on 20 December 2019 in relation to Mr Keeley were necessary to preserve his position in light of NZTA’s decision to
suspend him. The terms of the order prohibited NZTA “from taking further action that is or would be consequential on the decision to suspend the plaintiff’s appointment as a Vehicle Inspector”. I do not consider that order necessarily prevents NZTA from exercising its separate power of decision to revoke Mr Keeley’s appointment (or TTP’s appointment). So I do not consider NZTA’s revocation decision breaches the current court orders. Mr Keeley and TTP will need to apply afresh for interim orders in relation to the revocation decision. I set out a timetable for that to occur below.
[11] However, the effect of the revocation decision is the same as the suspension decision on a day to day basis. It just has a longer (potentially permanent) effect. NZTA has provided no evidence contrary to the evidence offered by Mr Keeley that persuaded Brewer J to grant interim orders in relation to the suspension decision. I have reviewed that evidence and agree that interim interim orders continue to be justified pending determination of the foreshadowed application for interim orders. I also consider there is no reason for them not to be extended to TTP. That is necessary in order for the orders in relation to Mr Keeley to be effective. And it has previously been the subject of consideration by the court, when Brewer J made such orders until that were rescinded only when the Court was advised they were unnecessary.
[12] Accordingly, I make the following orders under s 15 of the Judicial Review Procedure Act 2016:
(a)I prohibit NZTA from taking any further action consequential on its revocations of the appointments of Mr Keeley as a vehicle inspector and TTP Taupō Ltd as an inspecting organisation, until any application for interim orders made by 31 July 2020 is determined by the High Court.
(b)Order (a) is subject to the condition that Mr Keeley must ensure that he allows at least 30 minutes for each warrant of fitness inspection that he carries out.
Timetabling directions
[13] Ms Donaldson seeks a hearing of interim orders for one day. I do not consider a whole day should be necessary if counsel are succinct. I will be back in Tauranga in the first week of September 2020 and can hear the application, if one is required, over half a day then. My familiarity with the issues will also reduce the time required. I direct:
(a)By 4 pm Friday 31 July 2020, the plaintiffs will file and serve an amended statement of claim, application for interim orders and supporting affidavit.
(b)By 4 pm Friday 7 August 2020, counsel for the parties will file a joint memorandum, for my attention, regarding timetabling to, length of time required for, and likely required timing of, a substantive hearing of the application for judicial review.
(c)By 4 pm Friday 14 August 2020, NZTA will file and serve any notice of opposition and supporting affidavits.
(d)By 4 pm Friday 21 August 2020, the plaintiffs will file and serve their written submissions.
(e)By 4 pm Friday 28 August 2020, NZTA will file and serve its written submissions.
(f)At 2.15 pm Friday 4 September 2020, the application for interim orders will be heard at the Tauranga High Court.
(g)The parties have leave to apply for further directions. Any such request should be directed to me.
Palmer J
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