Living Streets Aotearoa Incorporated v Auckland Council
[2022] NZHC 1859
•1 August 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1598
[2022] NZHC 1859
UNDER Judicial Review Procedure Act 2016 BETWEEN
LIVING STREETS AOTEAROA INCORPORATED
Applicant
AND
AUCKLAND COUNCIL
First Respondent
WAKA KOTAHI NEW ZEALAND TRANSPORT AGENCY
Second Respondent
NEURON MOBILITY (NEW ZEALAND) LIMITED, BEAM MOBILITY NEW
ZEALAND LIMITED, LIME TECHNOLOGY LIMITED
Interveners
Hearing: 21 July 2022 Counsel:
C Browne and A Young for Applicant
First Respondent excused from attendance by Court R Goss for Second Respondent
N Scampion for Neuron Mobility (New Zealand) Limited B Carruthers for Beam Mobility New Zealand Limited
K Wilson and O Zambuto for Lime Technology Limited (All by VMR)
Judgment:
1 August 2022
JUDGMENT OF MUIR J
[Re admissibility]
This judgment was delivered by me on 1 August 2022 at 4.00 pm,
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: …………………………
LIVING STREETS AOTEAROA INCORPORATED v AUCKLAND COUNCIL [2022] NZHC 1859 [1 August 2022]
Introduction
[1] The applicant, Living Streets Aotearoa Inc (LSA), seeks judicial review of decisions made by Auckland Council and Waka Kotahi New Zealand Transport Agency (WKNZTA) which have the effect of authorising the use and commercial licencing of e-scooters on Auckland footpaths.
[2] Neuron Mobility (New Zealand) Limited (Neuron), Beam Mobility New Zealand Limited (Beam) and Lime Technology Limited (Lime) (collectively the interveners) are e-scooter operators that hold commercial licences to provide e- scooters for hire in Auckland. They have been granted leave by consent to intervene in the proceedings and have filed evidence accordingly.
[3] LSA objects to parts of one affidavit, that of expert witness Mr J M Lieswyn. It seeks an order that the objectionable aspects of the Lieswyn affidavit not be read. Such an order is opposed by the interveners.
The substantive proceeding
[4] The decisions challenged in the substantive proceeding were made against the legislative background of the Land Transport Act 1988 (LTA) and associated regulations.
[5] The LTA prohibits the operation of a motor vehicle on a road unless the motor vehicle is licenced and registered under the LTA and the driver holds a current driver licence. The LTA defines a motor vehicle as a “vehicle drawn or propelled by mechanical power” and goes on to list a series of exceptions that are carved out from that broad definition, including, for example, types of vehicles that WKNZTA have declared not to be motor vehicles under s 168A of the LTA.1
1 Section 2(1).
[6] The Land Transport (Road User) Rule 2004 (Rule) prohibits the driving of motor vehicles along a footpath.2 The Rule also introduces the term “wheeled recreational device”, which is defined as follows:3
wheeled recreational device—
(a)means a vehicle that is a wheeled conveyance (other than a cycle that has a wheel diameter exceeding 355 mm) and that is propelled by human power or gravity; and
(b)includes a conveyance to which are attached 1 or more auxiliary propulsion motors that have a combined maximum power output not exceeding 300 W
[7] Importantly, cl 1.5 of the Rule provides that no duty or requirement imposed by the Rule on drivers of motor vehicles applies to persons driving a “wheeled recreational device”. The effect of this clause is to allow wheeled recreational devices to be driven on footpaths, subject of course to any registration, licencing or driver licencing restrictions imposed by the LTA.
[8] LSA advances two cause of actions in its application for judicial review. The first challenges decisions made by Auckland Council to issue licences authorising the commercial hire of e-scooters to members of the public in Auckland. The licences were issued under the Trading and Events in Public Places Bylaw 2015.
[9] The second challenges the decision by WKNZTA to issue the E-Scooters (Declaration Not to be Motor Vehicles) Notice 2018. The notice was issued under s 168A of the LTA and declares that e-scooters meeting certain specifications4 are not motor vehicles for the purpose of the LTA.
The present application
[10] On 24 November 2021, Jagose J made orders granting leave to intervene and in respect of the timing and content of the interveners’ evidence. He identified the
2 Clause 2.13(1).
3 Clause 1.6.
4 These specifications mirror those laid out in the Rule’s definition of a “wheeled recreational device”. An additional requirement is that the e-scooter be comprised primarily of a footboard, two or three wheels, and a long steering handle.
necessity of the evidence being “surgical and responsive” to three issues as defined in the consent memorandum:
(a)whether the operators’ hire e-scooters come within definitions contained in the Land Transport (Road User) Rule 2004 and E- Scooters (Declaration Not to be Motor Vehicles) Notice 2018 (for example in respect of the nature of their propulsion, the nature of their motors, and their maximum power output);
(c)whether the operators’ hire e-scooters are, in the experience of the operators, obstructive or hazardous to pedestrians, and steps taken to ensure they are not; and
(d)the Court’s discretion when considering remedy (having regard to the extent and consequences of the operators’ reliance on the [Rule, Notice, and licensing decisions, and the potential effect of the Court’s decision on the operators and the public.
[11]I will hereafter refer to these as paras (a), (c) and (d) of the consent order.5
[12] Mr Lieswyn is a transportation planner based in Christchurch providing through his company, ViaStrada Limited, transportation planning and engineering design services nationwide. His affidavit dated 22 February 2022 comprises 22 pages, 101 paragraphs and 23 annexures.
[13] LSA objects to most of the substantive parts of that affidavit. Its objections proceed on one or more of the following three grounds:
(a)evidence is not confined to the issues listed in the consent order;
(b)evidence is irrelevant and not substantially helpful; and/or
(c)the opinion evidence is outside the deponent’s expertise.
[14] During the course of oral argument, however, LSA’s focus was substantially on the first ground. In particular, it did not pursue the challenge based on experience. This was appropriate in my view because Mr Lieswyn’s qualifications are at least such that would satisfy any threshold test in that respect. Of course, that does not preclude subsequent challenges at a more detailed level.
5 An earlier paragraph (b) did not feature in the final order consented to.
Legal principles
[15] In addition to complying with scope, as defined in the consent order, the interveners’ evidence must also be confined to matters that would be admissible if given in evidence at trial by the deponent.6 If a brief contains evidence that is inadmissible then the Court may direct that it not be read in whole or in part.7
[16] The ordinary rules of evidence apply to judicial review proceedings. This means that in order to be admissible, all evidence must be relevant.8 Evidence will be relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.9 However, if the probative value of the evidence is outweighed by the risk that the evidence will needlessly prolong a proceeding, then it must be excluded.10
[17] Section 25 of the Evidence Act 2006 outlines the specific admissibility requirements relating to expert opinion evidence. For expert opinion evidence to be admissible the opinion must be from an “expert”, it must comprise “expert evidence” and it must offer substantial help to the fact-finder in either understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.11 An assessment of whether evidence is substantially helpful requires consideration of relevance, reliability and probative value.12 Importantly, substantial helpfulness makes for a higher threshold than mere relevance.
Discussion
[18] I deal with each of the objections by reference to the relevant heading and associated paragraph numbers in the Lieswyn affidavit.
6 High Court Rules 2016, r 9.76.
7 High Court Rules 2016, r 9.7(4) and (5).
8 Evidence Act 2006, s 7.
9 Evidence Act 2006, s 7(3).
10 Evidence Act 2006, s 8.
11 Evidence Act 2006, s 25(1).
12 Mahomed v R [2010] NZCA 419 at [35]; and Pora v R [2015] UKPC 9, [2016] 1 NZLR 277 at [41].
Maximum power: paras [36]–[48]
[19] At the commencement of the hearing, LSA acknowledged that consideration of its objection to paras [36] and [37] should be held over for the trial Judge. That is because those paragraphs respond to evidence by LSA’s expert, Associate Professor Dr Shayne Gooch, which is itself challenged as not substantially helpful by the second respondent, WKNZTA. In memoranda filed for the purposes of two telephone conferences which preceded the hearing of this application, WKNZTA explained that its challenges could only efficiently be dealt with in the context of trial, a position which I accept. LSA in turn recognises the inefficiency of now dealing with an objection to evidence responsive to primary evidence which may not ultimately be admitted.
[20] In regard to the remaining paragraphs in this section, Paragraphs [38] and [39 were not challenged and the interveners acknowledged that paras [44]–[48] fell outside the scope of evidence permitted. As stated earlier, that scope was the subject of agreement and embodied in a consent order. I approach this application on the basis that, barring an amendment to scope, the evidence should fall within it. That conclusion is reinforced by Jagose J’s reference to the necessity of the interveners’ evidence being “surgical and responsive to the agreed issues”. Accordingly, I allow the objection in relation to paras [44]–[48].
[21] That leaves me to consider the applicant’s objection to paras [40]–[43]. Those paragraphs address the vexed issue of how, for the purposes of the Rule and Notice, the “combined maximum power output” of “auxiliary propulsion motors” is to be defined. Mr Lieswyn refers to the problematic nature of power certification because of variances in test methods. He also identifies a need to distinguish between “continuous power output” and “maximum peak power” when interpreting the meaning of “maximum power” in the context of e-scooter motors. Peak power is the maximum power achievable by a motor and is typically only required for short, intermittent periods, such as travelling up hills. Conversely, continuous power output is the power that a motor can safely output for an indefinite period of time without damaging or overheating. According to Mr Lieswyn, “continuous power output” is the most commonly used metric in the international literature.
[22] At [42] Mr Lieswyn posits his opinion that “the heart” of this interpretation problem is “poor wording” in the relevant secondary legislation.
[23] For LSA, Mr Browne acknowledges that how maximum power is defined is a highly relevant issue within the context of the substantive proceedings but submits that the relevant passages in Mr Lieswyn’s evidence are not substantially helpful in that the overseas position is only of peripheral relevance to proper interpretation of the Rule and Notice .
[24] I accept that the Rule and Notice are silent as to whether “maximum power” references maximum continuous or maximum peak power. In light of that, expert evidence about the implications of a peak power definition in terms of current e- scooter compliance, and how the issue of maximum power is directly addressed in other jurisdictions, is likely to be substantially helpful in assessment of assumed meaning.
[25] I note that Dr Gooch has had an opportunity to respond to Mr Lieswyn’s affidavit and in respect of this issue does so at length in paras [16] et seq of his affidavit dated 29 March 2022. No issue of prejudice therefore arises.
[26] I note also that this particular objection is not primarily advanced on the basis of scope. That is understandable in the context of paragraph (a) of the consent order which allows evidence “for example in respect of the nature of their propulsion, the nature of their motors and their maximum power output”. In my view, any discussion of maximum power output realistically engages the (apparent) lacuna in the Rule and Notice, and in turn realistically engages the material at paras [40]–[43].
[27] I therefore dismiss the application in respect of paragraph [40]–[43]. I grant it in relation to paragraphs [44]–[48]. The challenge to [36]–[37] is held over.
E-scooter stability and speeds: paras [49]–[58]
[28] These paragraphs respond specifically to paras [65]–[69] in Dr Gooch’s affidavit and, the interveners say, more broadly to the whole section in the affidavit which appears under the heading: “The basis for safety concerns” (paras [63]–[82]).
[29] In that section, Dr Gooch describes e-scooters as “inherently unstable”, postulates that the impact energy of a moving scooter hitting a pedestrian would be of similar magnitude to that of the punch of a professional boxer and contains a frame- by-frame analysis of a filmed collision between a pedestrian exiting a bus and an e- scooter driver who, in failing to correct his course, hits the unaware pedestrian and causes her to fall to the ground. The material is compelling in its visual impact.
[30]It is necessary for me to digress at this point to explain that each of paras [63]–
[82] of Dr Gooch’s affidavit, together with paras [15]–[17] of Sir David Williams QC’s affidavit, also filed on behalf of LSA, were challenged by WKNZTA on the basis that they were irrelevant and sought to litigate the underlying policy merits of the decision when that was not a proper basis for judicial review.
[31] In conferences prior to the hearing, I questioned the utility of deciding LSA’s objection to Mr Lieswyn’s affidavit in the context of an unresolved WKNZTA challenge. LSA’s response was to record, as a formal concession or acknowledgement, a paragraph in its written submissions in the following terms:
In addition, to a limited degree, the evidence addressed concerns of LSA and blind low vision about e-scooter safety (and in the case of Dr Gooch, the technical basis for them), and summarise differences in the regulation of e- scooters internationally. The purpose of that evidence was to show LSA’s special interest in the issues raised and to demonstrate that e-scooters have given rise to a wide spectrum of policy responses in different places and times (such that no single policy would be obviously and universally correct). They are intended to show the need for consultation, not to engage in a policy debate about the relative merits of using e-scooters on footpaths.
[32] In response to that concession, WKNZTA recorded in its memorandum, dated 19 July 2022, that it no longer intended to progress its relevancy objection. On that basis, the judicial efficiency objection to determining LSA’s objection at this point largely falls away.
[33] For their part, the interveners are concerned that the terms of the concession still leave “wriggle room” for LSA to rely on the relevant parts of Dr Gooch’s evidence when the Court comes, for example, to consider remedy (assuming one or more of the grounds for judicial review are made out). They say that Dr Gooch’s evidence goes well beyond summarising differences in the regulation of e-scooters internationally or
demonstrating that e-scooters have given rise to a wide spectrum of policy responses. They contend that the impugned evidence is designed to persuade the Court that e- scooters are unsafe on public footpaths. They are concerned that even the concluding part of the concession — that the evidence is not intended to “engage in a policy debate about the relative merits of using e-scooters on footpaths” — may not be sufficient to totally neutralise its impact, particularly in the context of the Court’s discretion regarding remedy.
[34] I have some sympathy for this argument. The root cause of the problem lies in Dr Gooch’s strongly expressed concerns about the likelihood of a collision between e- scooters and pedestrians and the seriousness of the consequences should that occur. He employs, as I have indicated, a visually compelling frozen frame sequence of such a collision. I accept that it is hard to neutralise something so visually compelling by the (comparatively) arid terms of a concession. In my view, fundamental issues of fairness and perception arise. Even in the context of the concession, the interveners could, in my view, rightly criticise a process which has the appearance of permitting “one way traffic”.
[35] Nevertheless, the interveners must satisfy me that the terms of the proposed evidence fall within the scope of the consent order. Otherwise, the evidence descends into a “free for all” which, conspicuously, was neither the intention of LSA, the interveners or Jagose J.
[36] It is on this basis that LSA challenges the evidence. It says that although within the terms of (c) of the consent order, the evidence speaks to whether the interveners’ scooters are “hazardous”, the permitted evidence is necessarily further limited by the phrase “in the experience of the operators”. It says that the evidence speaks generally to the hazard issue but not specifically to operator experience.
[37] The interveners say that with the exception of para [54], which they acknowledge is outside scope (and in respect of which I therefore uphold LSA’s objection), all of the material is properly considered part of the operators’ “experience” in relation to hazard. They emphasise that each of the interveners are competitors and that in this context the options were for them either to prepare multiple affidavits
deposing to their separate experiences or, more efficiently, to have this collated jointly in one expert affidavit. They submit that the LSA argument assumes a very narrow interpretation of the word “experience” and say that in the context of a case such as this, it would be inappropriate to limit such a concept simply to the operators’ observations “on the ground”. They say that their own “experience” of whether e- scooters are hazardous to pedestrians is necessarily informed not only from such observation, but from a variety of inputs, including material made available to them by their jointly instructed expert and the underlying testing to which some of that material refers. In short, their argument is that experience includes knowledge.
[38] In my view, the perception issues previously referred to suggest a reasonably generous approach to interpretation of the agreed scope, even if a “surgical” standard is to be applied thereafter. That position is also consistent with the authorities that urge caution in exclusion of evidence where the full trial context is not yet known.13
[39] Nevertheless, the “experience includes knowledge” submission, in my view, goes too far. Experience is defined in the Concise Oxford Dictionary as “actual observation of or practical acquaintance with facts or events” and the “knowledge or skill resulting”.14
[40] In my view, the scope of evidence intended to be captured in paragraph (c) of the consent order involved practical observation of facts and events on the part of the interveners. It was not of itself intended to capture expert distillation of outside material imparted to the interveners through the vehicle of Mr Lieswyn’s affidavit.
[41] However, the agreed scope also extends to evidence relevant to the Court’s discretion in considering remedy having regard, among other things, to “the potential effect of the Court’s decision on the operators and the public” (consent order (d)). This is a relatively broad concept. As previously indicated, I am unable to say that in the exercise of its discretion the Court should be precluded from considering at all the implications of e-scooter stability and speed on the “public”. In the context of (d)
13 For example, Donovan v Graham (1991) 4 PRNZ 311 (HC) at 313.
14 HW Fowler and FG Fowler (eds) The Concise Oxford Dictionary of Current English (7th ed, Oxford University Press, Oxford, 1982) at 339.
“public” has to include e-scooters users, pedestrians who are potentially impacted by the operation of e-scooters and, even more widely, those affected by the potential environmental benefits of e-scooter use. It is difficult to see the purpose of Dr Gooch’s original evidence other than to potentially “move the dial” on this point.
[42] I consider it inappropriate, for the reason that it is essentially unfair, that LSA should be permitted to file evidence which is strongly negative in its assessment of e- scooter safety, but that the interveners be precluded from response. Paragraph (d) of the consent order acknowledges that this was not the intended position and that the interveners were free to call evidence both rebutting any negative consequences for the public stemming from a decision to decline relief, and advancing any potential benefits to the public in support of such an outcome.
[43] I am sympathetic also to the argument that there remains sufficient ambiguity in LSA’s concession that I should not at this stage decide the issue on that account. As Mr Scampion submits, the concession does not, for example, specifically preclude argument by LSA on the potential negative consequences stemming from exercise of the Court’s remedial discretion in favour of the intervenors. It could easily have done so.
[44] I accordingly dismiss LSA’s application in respect of paras [49]–[53] and [55]– [58]. I grant the application in respect of para [54].
E-scooter parking: paras [59]–[68]
[45] LSA’s application nominally included these paragraphs but after discussion between counsel and the Bench, Mr Browne largely conceded that they were within scope. I consider that concession sensible. The consent order extended to evidence of operator experience in relation to whether e-scooters are “obstructive” and “steps taken to ensure they are not”. Mr Lieswyn summarises operator endeavours to educate their clients about proper parking behaviours and efforts to lift parking compliance above the desired 90 per cent threshold. In my view, none of that evidence can be appropriately objected to. It is not only within scope but substantially helpful, particularly in the exercise of any discretion as to remedy. In paras [64] et seq, Mr Lieswyn refers to the licensing code of practice, local bylaws and national regulations
in respect of parking and obstruction. There can be no complaint about having this material, which is in the public domain, conveniently identified in the evidence, even if it is not strictly within the terms of scope.
[46]I dismiss the objections in respect of paras [59]–[68].
Riding e-scooters on footpaths: paras [69]–[83]
[47] Of these paragraphs, LSA accepts that [76]–[79] are within para (d) of the consent order and withdraws its objection.
[48]Paragraphs [69]–[73] of Mr Lieswyn’s affidavit specifically respond to para
[15] of Sir David Williams’ affidavit where he cites four articles in support of the claim that “[o]ther countries and some states have prohibited E scooters from using footpaths”. Mr Lieswyn points out that two of the four articles refer to Singapore, contrasts Singapore’s population density with that of New Zealand, notes that the suggestion e-scooters have been banned in Paris is inaccurate and refers very briefly, in one paragraph of four lines, to the position in multiple other countries. The interveners say that this evidence also references (inferentially) Dr Gooch’s affidavit at [61], [63], [69] and [70]–[82].
[49] In respect of the balance of paragraphs in this section of Mr Lieswyn’s affidavit: [74] references on ability to ban unpowered devices like skateboards from using specific footpaths by local by-law; [75] references steps taken by e-scooter operators to limit speed; [80] is simply a tabulated summary of cl 11.1 of the Rule; and [81]–[83] postulate that speed limitations on e-scooters, if applied in a blanket way, can have the perverse effect of encouraging use on footpaths.
[50] LSA argues that apart from paras [76]–[79], this section of the affidavit is not within the scope of the consent order. It includes material about overseas regulation and how New Zealand operator practice could be improved to remove the perverse outcome identified.
[51] In respect of para [15] of Sir David Williams’ affidavit, LSA sensibly acknowledged in argument the apparent asymmetry of this evidence being read and
paras [69]–[74] of Mr Lieswyn’s affidavit being ruled inadmissible. It suggested that the appropriate solution was to withdraw para [15]. However, in reply, the interveners made the point previously noted that their material was also responsive to aspects of Dr Gooch’s evidence. Notably, the paragraphs referred to in Dr Gooch’s evidence ([61], [63], [69] and [70]–[72]) do not specifically address the foreign regulatory position; rather, they are focused on perceived safety concerns of the use of e-scooters on footpaths. In any case, the concession was not accepted and, at least for the moment, paragraph [15] of Sir David Williams’ affidavit remains. I am therefore obliged to rule on the admissibility of each of the paragraphs in contention. I have reached the following conclusions:
(a)The challenge to paras [69]–[73] is dismissed. The paragraphs are responsive to Sir David Williams’ evidence. To allow LSA’s objection would again risk the apparent unfairness I have previously identified. This evidence is by the slimmest margin within the scope of consent order (d) in that the potential effect on the public might (at least on a liberal interpretation) be thought to include deprivation of opportunities available to others in similar jurisdictions. However, I have my doubts whether any of this material will ultimately be substantially helpful in the exercise of the Court’s discretion. If LSA eventually chooses to withdraw para [15] of Sir David William’s affidavit, as seems possible, then I reserve leave to it to renew its current application in respect of para [69]–[74] of Mr Lieswyn’s affidavit.
(b)In respect of [74], I allow the objection as observations in respect of unpowered devices are, in my view, neither within scope nor substantially helpful.
(c)In respect of [75], although this includes material about a report earlier published by Mr Lieswyn, this simply gives context to operator decisions to limit speed, evidence of which falls within paragraph (c) of the consent order. I do not consider it appropriate to “disembody” the paragraph and therefore reject the challenge as it applies to each of its two sentences.
(d)In respect of para [80], I regard a tabular summary of legislative position as uncontentious and reject LSA’s challenge. The relevant legislative framework for the operation of mobility devices and wheeled recreation devices on footpaths and shared paths are clearly relevant to an assessment of the potential effects on the public of maintaining the status quo.
(e)In respect of paras [81]–[83] of Mr Lieswyn’s affidavit, I accept LSA’s submission that with the exception of the first sentence in [81], they are (by a comfortable margin) beyond scope. Judicial review is not an appropriate vehicle for Mr Lieswyn to theorise about e-scooter use on roadways or cycleways. Nor did the agreed scope of the intervener evidence contemplate this. The first sentence is however within paragraph (b) of the consent order.
(f)In respect of [82] I dismiss the application in relation to the first sentence which is within paragraph (b) of the consent order but allow it in respect of the balance of the paragraph for the same reasons as in
(d) above.
E-scooters are less dangerous than perceived: paras [84]–[90]
[52] In the course of argument, LSA withdrew its challenge to para [87]. That paragraph contains safety data provided by Beam; evidence that clearly qualifies as operator experience.
[53] The intervenors say that the challenged paragraphs under this section directly respond to paras [16]–[17] of Sir Williams’ affidavit (the cost of scooter injuries in New Zealand) and paras [65]–[82] of Dr Gooch’s affidavit (the basis for safety concerns).
[54] Specifically, paras [84] and [85] of Mr Lieswyn’s affidavit refer to the incidence of ACC claims after e-scooters were introduced in New Zealand and notes that these have since reduced markedly, consistent with social adaptation. It also notes
that e-scooter related claims are significantly fewer than those associated with regular kick scooters, cycles or skateboards.
[55] Paragraph [86] notes that 41.9 per cent of e-scooter crashes in the first few months after adoption had an alcohol component and the fact that alcohol warnings now feature prominently in the relevant apps.
[56] Paragraph [88] expresses a view that new technology will always attract disproportionate attention compared to entrenched technology and notes that in 2018, 73 pedestrians were killed by motor vehicles in New Zealand but none by people on bikes or other wheeled devices, including e-scooters.
[57] Paragraph [90] acknowledges that the silence of electric micromobility devices can startle pedestrians and says that the solution is to encourage courteous passing of pedestrians (slowing down and giving extra space) and the use of the bells (with which e-scooters are equipped). It also makes references to Neuron’s trials of a “white noise” functions designed to alert pedestrians.
[58] LSA objects to these paragraphs on the basis that they again relate only in a general way to the extent to which e-scooters are hazardous to pedestrians and steps taken to ensure they are not, are not based on actual observation of or practical acquaintance with facts or events and cannot therefore be said to be based on the experience of the operators.
[59] I do not consider that to be the case in respect of evidence relating to the “in app warnings” that the operators now employ in relation to alcohol consumption, the use of technology that can detect a user’s level of intoxication and Neuron’s “white noise” trial. That evidence clearly falls within the category of operator experience regarding steps taken to ensure e-scooters are not hazardous to pedestrians.
[60] Admission of this material but, for example, rejection of the ACC data, risks disembodiment of the relevant paragraphs in circumstances where LSA sensibly conceded a line-by-line analysis was generally not required.
[61] In any event, this further material is potentially relevant to exercise of the Court’s discretion under consent order (d) in that it addresses one of the effects of the Court’s decision on the public — the likely incidence of e-scooter accidents as reflected in ACC statistics relative to other micromobility-related claims. Therefore,
I cannot, at this stage, rule out the substantial helpfulness of this evidence
[62] I have left para [89] to one side. It responds to para [42] of Mr Teo-Sherrell’s affidavit, filed in support of the LSA, and purports to correct an error of fact in that paragraph; specifically, the suggestion that the American research study cited in one of Mr Lieswyn’s reports was on non-electric scooters. The Court must be entitled to accurate evidence. If there is an error or misunderstanding in para [42] of Mr Teo- Sherrell’s evidence, then it is appropriately corrected by the person most immediately connected with the relevant material — in this case, Mr Lieswyn.
[63] It follows that I disallow LSA’s objections in respect of paras [84]–[86] and [88]–[90].
Benefits of e-scooters that would be lost if licences were cancelled: paras [91]–[101]
[64] These paragraphs briefly traverse the benefits of micromobility in regards to traffic congestion and the environment, and, among other things, identify the number of New Zealanders who have registered for one or more of the interveners’ apps, the number of trips made by them (9.75 million) and the number of kilometres travelled (14.6 million).
[65] In argument, Mr Browne conceded that usage information addressed a potential consequence of any exercise of discretion in favour of LSA on both e-scooter operators and the public. Mr Browne did not press his challenge in respect of the balance paragraphs in this section. As I have earlier indicated, I consider that any assessment of potential effects on the public is capable of capturing wider environmental concerns. The point is not laboured, and no prejudice arises given the opportunity for Dr Gooch to apply.
[66]Accordingly, I dismiss the objections to paras [91]–[101].
Mr Lieswyn’s opening summary: paras [19]–[25]
[67] In these paragraphs Mr Lieswyn briefly summarises the material that follows. Technically, these paragraphs are also subject to challenge. I dismiss the challenge noting, however, that within some of the identified sections the challenges have been allowed in respect of individual paragraphs. My formal order is to be read accordingly.
Summary
[68] I record the objections in relation to paragraphs [36]–[37] as held over for consideration at trial.
[69] I record the objections in relation to paragraphs [76]–[79] and [87] as withdrawn.
[70] I dismiss the application in respect of paras [19]–[25], [40]–[43], [49]–[53], [55]–[58], [59]–[68], [69]–[74], [75], [80], [81] (first sentence), [82] (first sentence), [84]–[86], [88]–[90] and [91]–[101].
[71] I grant the application in respect of paras [44]–[48], [54], [74[, [81] (second and third sentences), [82] (second sentence) and [83].
[72] I note that where I have dismissed the application by reference to the potential relevance of the evidence to exercise of the Court’s remedial discretion, it would be inappropriate to hold LSA to any interpretation of its concession which precluded similar reference. What is sauce for the goose must, in that sense, be for the gander also. Nevertheless, the overriding consideration is equality of arms. If LSA were to make a direct concession that the material responded to would not be relied upon in the context of an argument regarding discretion (something which, in combination with the existing concession, must come close to an invitation not to read the contentious parts if Dr Gooch’s evidence at all) then I would reserve leave to it to renew its challenge to admissibility of the response.
Costs
[73] I have not been addressed on costs. There have been wins, losses and concessions on both sides which provisionally tends to suggest that the appropriate outcome may be for costs to lie where they fall. If any party disagrees with that, memoranda may be filed on the following timetable:
(a)Memorandum by interveners – 19 August 2022.
(b)Memorandum by LSA – 2 September 2022.
Muir J
Solicitors: Wilson Harle, Auckland
Simpson Grierson, Auckland Chapman Tripp, Auckland
Bell Gully, Auckland
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