Keeley v New Zealand Transport Agency

[2019] NZHC 3464

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-132

[2019] NZHC 3464

BETWEEN

JOSEPH KEELEY

Plaintiff

AND

NEW ZEALAND TRANSPORT AGENCY

Defendant

Hearing:	(On the papers)
Counsel:	J L S Shaw and C A Donaldson for Plaintiff/Applicant
Judgment:	20 December 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 20 December 2019 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Wynn Williams (Christchurch) for Plaintiff/Applicant

KEELEY v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 3464 [20 December 2019]

[1]    The plaintiff, a WOF Vehicle Inspector, seeks judicial review of a decision suspending his appointment as a Vehicle Inspector for warrant of fitness inspections with immediate effect.1

[2]The notice of suspension was served on the plaintiff on 17 December 2019.

[3]    The plaintiff applies for interim relief without notice pursuant to s 15 of the Judicial Review Procedure Act 2016 (the Act). The plaintiff also applies for interim relief on notice. The plaintiff’s intention is to obtain urgent interim relief without notice until such time as the application for interim relief can be heard and determined on notice.

[4]    Section 15(1) of the Act empowers the Court to make an interim order if, in its opinion, it is necessary to do so to preserve the position of the applicant.

[5]    Section 15(2)(c) includes in the term “interim orders” orders declaring that any licence that has been suspended in the exercise of a statutory power continues.

[6]    I have read the plaintiff’s affidavit filed in support of the application. I have considered the factual assertions in the affidavit against the dicta of Katz J in Foreman Automotive Ltd v The New Zealand Transport Agency, with which I respectfully concur:2

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.

[7]    The plaintiff deposes he operates a business as a WOF Vehicle Inspector. He has operated as such for the last 15 years.

1      The plaintiff has concurrently filed an appeal against the decision in the District Court.

2      Foreman Automotive Ltd v The New Zealand Transport Agency [2013] NZHC 1167 at [24].

[8]    In September, November and December this year he was subject to reviews by New Zealand Transport Agency personnel. The notice of immediate suspension of appointment as a Vehicle Inspector cites clause 3.3(1) of the Land Transport Rule: Vehicle Standards Compliance 2002. This permits suspension with immediate effect if the Transport Agency has reason to believe that a Vehicle Inspector or inspecting organisation has failed to comply with a condition of their appointment or with the rule, and that this presents a significant risk to land transport safety.3

[9]    The plaintiff deposes that he will suffer severe financial hardship if his appointment remains suspended. The inspecting of vehicles is a core aspect of his business and without it he will not, for example, have sufficient income to pay the rent of his premises. The suspension will also affect retention of his customer base and will impact on him personally since his own income will be greatly reduced. He deposes that if the appointment remains suspended he will have no way of meeting his personal financial obligations. He will also have to make redundant a staff member.

[10]   I am satisfied that interim orders are necessary to preserve the position of the plaintiff.

[11]   I consider also I should exercise my discretion to grant the relief sought. I think there is force in the plaintiff’s contention  that  the  reasons  given  by  the  New Zealand Transport Agency for the suspension arguably do not demonstrate that the plaintiff “presents a significant risk to land transport safety”.

[12]   I am also satisfied that keeping the plaintiff in operation as a WOF Vehicle Inspector will not compromise public safety.

[13]   In terms of fairness between the parties, I accept the proposal (that the interlocutory application without notice for interim relief be short term because it will be subject to the interlocutory application on notice for interim relief) is appropriate.

3      Emphasis added.

Decision

[14]   I grant the interlocutory application without notice for interim relief. I make orders:

(a)Prohibiting the New Zealand Transport Agency from taking any further action that is or would be consequential on the decision to suspend the plaintiff’s appointment as a Vehicle Inspector; and

(b)Declaring that the plaintiff’s appointment be deemed to continue in force until the plaintiff’s appeal of the suspension and application for judicial review of the suspension have been determined, or until the plaintiff’s on notice application for interim relief is determined.

[15]   I direct the plaintiff to serve the on notice application for interim relief forthwith.

[16]   I direct the registry to list the on notice application for interim relief in the first available callover in the New Year.

[17]   Leave is reserved to the New Zealand Transport Agency to apply to vary or rescind these orders on five days’ notice to the plaintiff.

[18]Costs are reserved.

Brewer J