Map Transport Limited v Director of Land Transport
[2025] NZHC 753
•2 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-2158
[2025] NZHC 753
IN THE MATTER of an appeal from a decision of the District Court at Auckland BETWEEN
MAP TRANSPORT LIMITED
First Appellant
ADWIN JACOB CHANDRA
Second AppellantAND
THE DIRECTOR OF LAND TRANSPORT
Respondent
Hearing: 13 February 2025 Appearances:
S Khan for the Appellants
J Papps and D Keogh for the Respondent
Judgment:
2 April 2025
JUDGMENT OF GORDON J
This judgment was delivered by me on Wednesday, 2 April 2025 at 11.30 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
Solicitors: Fortune Manning, Auckland
Chapman Tripp, Wellington
MAP TRANSPORT LTD v DIRECTOR OF LAND TRANSPORT [2025] NZHC 753 [2 April 2025]
TABLE OF CONTENTS
Para No.
Legislative framework [11]
Factual background
Grant of TSL [27]
Audit notice [28]
Notices of Proposal to revoke and disqualify [32]
Director’s decisions to revoke and disqualify [35]Matters arising after the Director’s decisions [37] Amended notice of appeal [38]
Appeal framework [42]
Estoppel [45]
Alleged errors of law [53]
Misapplication of the “fit and proper” person test (Grounds 2.1, 2.2 & 2.3) [56] Alleged failure to consider lesser regulatory tools (Grounds 2.4 and 2.12) [74] Alleged disproportionality (Ground 2.13) [83]
Chain of responsibility and appellants’ responsibilities for work-time and
logbook compliance of MAP’s drivers (Grounds 2.9 and 2.10) [91]
Alleged failure to establish a clear nexus between acts or omissions by MAP and Mr Chandra and the alleged systemic failures (Grounds 2.7
and 2.8) [95]
Relevance of road user charges in fit and proper person assessment
(Ground 2.14) [102]
MAP’s failure to comply with s 198 audit (Ground 2.6) [106]
Alleged procedural errors [113]
Growth in RUC debt (Ground 2.5) [116]
Systems and processes to monitor work time and logbook compliance
(Ground 2.11) [122]
Missing RUC distance licence and use of vehicle with expired CoF
(Grounds 2.15 and 2.16) [127]
MAP continuing to operate pursuant to interim relief (Grounds 2.17
and 2.18) [133]
Length of Mr Chandra’s suspension [137]
Result [149]
Costs [151]
[1] This is an appeal on questions of law against a decision of Judge K D Kelly in the District Court at Auckland refusing an appeal by the first appellant, MAP Transport Limited (MAP), and the second appellant, Adwin Chandra, against decisions of the respondent, the Director of Land Transport (Director).1
[2] MAP is the operator of a trucking business and Mr Chandra is the sole director and shareholder of MAP. In order to operate its trucking business of transporting shipping containers, MAP needs to hold a transport (goods) service licence (TSL). The Director, who is the nominal head of the NZ Transport Agency Waka Kotahi (NZTA), is the person who issues and who can revoke TSLs.
[3] On 21 December 2023, the Director issued a decision revoking MAP’s TSL (revocation decision) and a second decision disqualifying Mr Chandra from holding a TSL for a period of five years or being in control of a transport service for a period of five years (disqualification decision) (together the Director’s decisions).
[4] The appellants appealed to the District Court against the Director’s decisions on the ground that the Director was wrong to find that the appellants were not fit and proper persons to, respectively, hold a TSL or to be a person in control of a transport (goods) service. Judge Kelly upheld the Director’s decisions and dismissed the appeals.
[5] As well as filing an appeal against the Director’s decisions, the appellants sought judicial review of those decisions in this Court. At the same time as they filed their statement of claim on 22 December 2023, the appellants2 applied on a without notice basis for interim orders in order to prevent MAP from going out of business before the application for judicial review could be heard. An interim order, prohibiting the Director from taking any action consequential on his decisions and a further interim order deeming the TSL to continue in force, were made.
1 MAP Transport Limited v The Director of Land Transport [2024] NZDC 17714 [District Court decision]. Decision delivered on 1 August 2024, but not made available to the parties until 12 August 2024.
2 As the applicants in the judicial review proceeding.
[6] On 7 March 2024, those orders were continued by consent on the basis of a detailed set of conditions until the decision on the application for judicial review.
[7] In a judgment dated 12 August 2024,3 I refused the application for judicial review, finding against the appellants on all grounds raised (JR judgment).
[8] In this appeal, the appellants say Judge Kelly erred in law when he refused their appeal. The notice of appeal filed in this Court (referred to in detail at [38] below) contains 18 alleged errors by the District Court Judge.
[9] The Director opposes the appeal and says it should be dismissed. He says a number of the grounds of appeal do not involve a question of law. They are factual issues dressed up as questions of law. This Court does not have jurisdiction on appeal to determine those issues.
[10] The Director further says that any questions of law that are raised by the appellants were determined in the JR judgment and, accordingly, the appellants are estopped from raising them in this appeal.
Legislative framework
[11] Before setting out the factual background as summarised by Judge Kelly, I first set out the relevant legislative framework in the Land Transport Act 1998 (the Act) which will assist in an understanding of the background to this appeal.
[12] In summary, functions of the Director include issuing and revoking land transport documents (including TSLs) and carrying out enforcement responsibilities conferred on the Director.4
[13] A transport service operator may not carry on a goods service unless licenced to do so.5
3 MAP Transport Ltd v The Director of Land Transport [2024] NZHC 2253 [JR judgment].
4 Land Transport Act 1998, s 30L (granting Transport Service Licences), s 30S (revoking Transport Service Licences).
5 Section 30J.
[14] The test of a “fit and proper person” is the controlling mechanism in the goods transport service context. Section 30L of the Act applies to the grant of a TSL.6 It relevantly provides:
30L Grant of licence
(1)After considering an application for a transport service licence, the Director may grant the licence only if the Director is satisfied that—
(a)the applicant is a fit and proper person to hold a transport service licence; and
(b)any person who is to have, or is likely to have, control of the transport service is a fit and proper person to have such control; …
[15] Section 30S sets out the circumstances when the Director may revoke a TSL. It provides in relevant part:
30S When Director may revoke transport service licence
(1)The Director may revoke a transport service licence if the Director is satisfied that—
(a)the holder of the transport service licence is not a fit and proper person to be the holder of a transport service licence; or
(b)any person who has control of the transport service is not a fit and proper person to have control of the service; …
[16] If the Director revokes a TSL the Director may disqualify for a period not exceeding 10 years any person who was in control of the transport service and whose fitness and propriety was the basis of, or contributed to, a decision to revoke the transport licence.7
[17] The Director has a broad discretion in making the “fit and proper person” assessment. First, there are mandatory relevant considerations in s 30C(1) which are subjectively framed, and also further mandatory relevant considerations in s 30F which are specific to goods services.
6 A person must hold a goods services licence (which is one type of transport service licence) to carry on a goods service.
7 Section 87B.
[18]Section 30C(1) provides:
30C General safety criteria
(1)When assessing whether or not a person is a fit and proper person in relation to any transport service, the Director must consider, in particular, any matter that the Director considers should be taken into account—
(a)in the interests of public safety; or
(b)to ensure that the public is protected from serious or organised criminal activity.
[19] Section 30F contains the additional mandatory criteria for a goods service as follows:
30F Additional criteria for goods service
Without in any way limiting the matters that the Director may have regard to under section 30C(2), when the Director is assessing whether or not a person is a fit and proper person in relation to any goods service, the Director must consider, in particular,—
(a)any criminal activity conducted in the course of any transport service or transport-related business or employment:
(b)any offending in respect of major transport-related offences, particularly offences relating to safety or to road user charges.
[20] Next, as far as the Director’s broad discretion is concerned, there are permissive relevant considerations. Section 30C(2)–(4) provide:
(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 Director may consider, and may give any relative weight that the Director 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 Director considers it is appropriate in the public interest to take into account.
(3)In determining whether or not a person is a fit and proper person for any of the purposes of this Part, the Director may consider—
(a)any conviction for an offence, whether or not—
(i)the conviction was in a New Zealand court; or
(ii)the offence was committed before the commencement of this Part or corresponding former enactment; or
(iii)the person incurred demerit points under this Act or a corresponding former enactment in respect of the conviction; and
(b)the fact that the person has been charged with any offence that is of such a nature that the public interest would seem to require that a person convicted of committing such an offence not be considered to be fit and proper for the purposes of this section.
(4)Despite subsection (3), the Director may take into account any other matters and evidence as the Director considers relevant.
[21] In particular, I note s 30C(2)(f), which provides that the Director may consider any other matter that the Director considers it is appropriate in the public interest to take into account; and s 30C(4), which provides that the Director may take into account any other matters and evidence as the Director considers relevant.
[22] The Act does not expressly or impliedly prescribe irrelevant considerations. Accordingly, and having regard to the broad discretion apparent in the above provisions, the only irrelevant considerations would be unreasonable considerations of the “red-haired teacher” type.8
8 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, [1947] 2 All ER 680 (CA) at 229.
[23] The Act also provides for the primary responsibilities of holders of TSLs.9 Section 30A(1) provides:
30A Requirements for vehicles
(1)A holder of a transport service licence must ensure that—
(a)every vehicle to be used in the service is maintained in a fit and proper condition and that the requirements of any legislation (including bylaws) made for this purpose are met:
(b)no vehicle is used in the service unless and until all fees payable in respect of the vehicle and the service under any legislation (including bylaws) have been duly paid or appropriate arrangements have been made for payment.
[24] In order to be able to exercise his powers under the Act, the Director is able to conduct inspections and audits. Section 198 of the Act provides:
198 Inspections and audits
(1)The Director may in writing require any person who holds a land transport document that authorises the provision of a service in the land transport system to undergo such inspections and audits as the Director reasonably considers necessary in the interests of land transport safety (including inspections and audits of vehicles operated by such persons).
(2)The Director may carry out such inspections and audits as the Director reasonably considers necessary in the interests of land transport safety.
(3)For the purposes of any inspection or audit carried out in respect of any person under this section, the Director may in writing require that person to provide such information as the Director reasonably considers relevant to the inspection or audit.
(4)A person to whom a requirement is made under this section must comply with that requirement.
[25] Anyone who, without reasonable excuse, fails or refuses to comply with the requirements under s 198 in respect of an audit or inspection is liable on conviction to a fine not exceeding $5,000.10
9 Part 4A, subpart 1.
10 Section 51.
[26] Finally, there is a prescribed statutory process in Part 4A, subpart 5 in relation to adverse decisions made by the Director. The Director is required to notify a proposal to make an adverse decision,11 there is a procedure for consideration of information,12 and a procedure for the Director to make and notify his determination.13
Factual background
Grant of TSL
[27] Shortly after incorporation, MAP applied for a goods service licence (a category of TSL). Since it had been recently incorporated and had not previously operated a goods service, MAP had no record of offending. NZTA staff did not identify any adverse information about MAP or Mr Chandra.14 The Director therefore granted MAP’s TSL on 15 June 2023. Pursuant to that licence MAP operated approximately 10 truck and trailer units (being approximately 20 individual units) in Auckland and Christchurch.
Audit notice
[28] On 20 September 2023, the Director, through a Senior Compliance Officer, issued a Notice of Audit to MAP under s 198 of the Act. The evidence for the Director was that the two matters that precipitated the audit were:
(a)MAP had come to the attention of Safer Commercial Transport Upper North Island (a part of NZTA’s Regulatory Services) because of an apparent connection between Mr Chandra and the Director of Clover Transport Ltd, which was under investigation by NZTA; and
(b)NZTA staff were concerned about the number of traffic offences that vehicles registered to MAP had incurred in the short time that MAP had been operating (in particular, a total of 20 traffic offences between 11 August and 12 September 2023).
11 Section 30W.
12 Section 30X.
13 Section 30Y.
14 Mr Chandra had only one traffic offence in the previous five years which was not in a commercial vehicle.
[29] The Notice of Audit required MAP to provide specified information in order to assist NZTA to assess MAP’s compliance with the legislation.15 It is not necessary to itemise that information here.
[30] Mr Chandra’s position was that he co-operated and substantially complied with the audit. NZTA’s position was that Mr Chandra did not provide all of the information sought by the specified date and Geoffrey Burrows, the Manager Compliance – Safer Transport Upper North Island, lists in his affidavit the information that was not provided.16 Again, it is not necessary to list that information in this judgment.
[31] As part of the audit, NZTA conducted an inspection of MAP’s vehicles on 4 October 2023. Of the 21 heavy motor vehicles (including both trucks and trailers) registered in MAP’s name, MAP presented only 12 vehicles for inspection. Of those vehicles, two were “green-stickered” (a trailer had a chassis cross-member cracked in two places and a truck had a brake defect on its rear axle).17 Only one of six drivers could show NZTA staff his completed walk-around check sheet.18
Notices of Proposal to revoke and disqualify
[32] Following the audit, on 8 November 2023, Mr Burrows, as the Directors’ Delegate, issued a notice of Proposal to revoke MAP’s goods service licence on the basis that he was satisfied that MAP was not a fit and proper person to hold such a licence. Mr Burrows also issued a notice of Proposal to disqualify Mr Chandra from holding a TSL and from being a person in control of a transport service similarly on the basis that he was not a fit and proper person to have control of that service. The issues identified in the two notices were that:19
(a)the information sought by NZTA pursuant to the s 198 Notice of Audit was not all provided by 2 October 2023 and the records provided were either insufficient, or incomplete so to enable NZTA to review MAP’s operation sufficiently;
15 District Court decision, above n 1, at [17].
16 At [20].
17 A green sticker is issued when the enforcement officer inspecting the vehicle considers the vehicle to be defective or not in compliance with the Act. The vehicle is immediately placed out of service.
18 In his affidavit, Mr Burrows explains that a walk-around inspection and check sheet is expected by NZTA to be completed before a heavy vehicle is used.
19 District Court decision, above n 1, at [30].
(b)MAP failed to manage work time and logbooks, as well as fatigue, with the records and GPS data showing significant breaches of work time, rest time and logbook requirements (including a driver exceeding 5.5 hours’ continuous work time; a driver failing to take the required 10-hour rest break between shifts; and false or misleading information in a logbook / logbook omissions);
(c)MAP was issued with two RUC assessments where vehicles were found to have exceeded the maximum distance or their RUC licences with MAP owing NZTA $23,944.90 in unpaid RUC;
(d)In the four months preceding the Proposals, vehicles operating under the TSL had received 31 infringement offence notices from the Police (16 of which related to RUC non-compliance);
(e)Vehicles had been found by the Police to be operating with RUC overruns; and
(f)MAP failed to supply evidence that it had processes and procedures in place to manage safety for drivers and vehicles.
[33] Mr Burrows advised MAP and Mr Chandra of steps they could take to avoid revocation and disqualification and they were also given the opportunity to make submissions on the two notices of Proposal.
[34] Fortune Manning, the lawyers acting for MAP and Mr Chandra, wrote a detailed letter in response.
Director’s decisions to revoke and disqualify
[35] The submissions in the Fortune Manning letter did not persuade Mr Burrows to change his view that MAP was not a fit and proper person to hold a goods service licence and that Mr Chandra was not a fit and proper person to have control of a transport service. By notice dated 21 December 2023, Mr Burrows revoked MAP’s goods service licence. By separate notice, on the same date, Mr Burrows disqualified Mr Chandra from being the holder of a TSL and from being a person in control of a transport service for a period of five years.
[36] In giving the Director’s decisions, Mr Burrows adopted the reasons as set out in the notices of Proposal (refer to [32] above). It was the Director’s decisions that were the subject of the appeals in the District Court.
Matters arising after the Director’s decisions
[37] MAP continued to operate under the interim relief given by the High Court in the judicial review proceeding. Mr Burrows gave evidence in the District Court regarding MAP’s operation pursuant to that interim relief as recorded in affidavits sworn on 3 April and 4 June 2024. The key matters were as follows:
(a)MAP continued to incur infringement offences after the Director’s decisions including for Road User Charges (RUC) non-compliance and for vehicles not being up to Certificate of Fitness (CoF) standard.
(b)MAP continued to owe RUC debt after the Director’s decisions. MAP made a RUC payment in late-December 2023, reducing the amount of its RUC debt. As at 7 February 2024, that RUC debt had increased to
$21,218.84 (being RUC penalty invoices and two RUC invoices from late December 2023) and by 31 May 2024 to $46,073.26.
(c)On 6 May and 23 May 2024, NZTA conducted fleet audits of MAP’s operations in Auckland and Christchurch respectively. In the Auckland fleet audit, 14 vehicles (seven trucks and seven trailers) were presented for inspection. Of those vehicles two trucks and two trailers passed their inspection. The remaining vehicles failed their inspections.20 A further 11 vehicles were light green-stickered.21 In the Christchurch fleet audit, four vehicles (two trucks and two trailers) were presented for inspection. One trailer passed its inspection. Each of the other three inspected vehicles were identified as having one or more minor faults that did not raise significant safety concerns, leading to “Green-2”
20 Mr Burrows says one trailer had defects that resulted in it being “pink-stickered” (the brake chamber had suffered significant fatigue damage). A pink-sticker is issued when the enforcement officer inspecting the vehicle considers that the vehicle is unsafe for use on the road. The vehicle must be immediately placed out of service, the defect(s) must be rectified, and the vehicle must obtain a new warrant of fitness or CoF (whichever is applicable) before it may again be operated on the road.
21 Mr Burrows says a light green-sticker or a “Green 2” sticker is issued when the enforcement officer inspecting the vehicle considers that a vehicle has a minor defect or defects that would result in the vehicle failing a CoF inspection, but which would have little impact on the vehicle’s safety. The enforcement officer may either require the defect to be remedied before the vehicle may again be operated on the road or impose conditions on the vehicle’s movements and usage until the repairs are carried out.
stickers being issued for those vehicles. NZTA identified that one vehicle had been operating since its most recent CoF had expired on 13 December 2023, and without a current RUC distance licence.
Amended notice of appeal
[38]There are 18 grounds of appeal in the amended notice of appeal as follows:
2.1The District Court Judge misapplied the fit and proper person test under ss 30C and 30F of the Act.
2.2The District Court Judge erred in law by elevating the standard for “fitness and propriety” beyond that contemplated under the Act.
2.3The District Court Judge erred in law by failing to give appropriate weight to the positive criteria that applied in favour of MAP and Mr Chandra, such as the absence of any criminal activity, serious behavioural problems, or complaints from the public.
2.4The District Court Judge erred in law by not considering lesser regulatory tools before resorting to revocation and disqualification, such as the imposition of conditions on MAP’s TSL under s 30U of the Act.
2.5The District Court Judge committed a procedural error by going beyond the evidence presented on appeal and assuming – without evidence – that MAP’s Road User Charges (RUC) debt had grown between December 2023 and 31 May 2024, that MAP was continuing to overrun its RUC licences after December 2023, when in fact MAP had complied with its fresh RUC obligations post December 2023 and the increase in RUC debt between December 2023 and 31 May 2024 was on account of historic RUC debt pre-dating December 2023 that the Director of Land Transport (Director) had only invoiced post-December 2023 and related penalties.
2.6The District Court Judge committed a procedural error by finding that MAP had failed to comply with an audit carried out by the Director in circumstances where MAP had not been charged with any such failure, let alone convicted, and when there was insufficient evidence before the Court of any such failure.
2.7The District Court Judge erred in law by failing to establish a clear nexus between specific acts or omissions by MAP and Mr Chandra and the alleged systemic failures, such as work time or logbook non- compliance by MAP’s drivers, or any other issue identified by the Director concerning MAP’s drivers.
2.8The District Court Judge erred in law by relying on generalisations about MAP’s performance without identifying specific actions or inactions by Mr Chandra that would justify the revocation and disqualification.
2.9The District Court Judge erred in law by misinterpreting the “chain of responsibility” provisions under the Act.
2.10The District Court Judge incorrectly held that MAP and Mr Chandra were responsible for the work time and logbook compliance of their drivers, contrary to the specific wording of ss 30ZC and 30ZF, which place this responsibility on individual drivers.
2.11The District Court committed a procedural error by failing to consider the systems and processes that MAP had in place to monitor worktime and logbook compliance of its drivers.
2.12The District Court Judge erred in law by failing to treat revocation and disqualification as tools of last resort.
2.13The District Court erred in law by utilising the regulatory regime as a punitive tool, and therefore in a manner disproportionate to the actual
risk to public safety arising from the operation of MAP as overseen by Mr Chandra.
2.14The District Court Judge erred in law by using the non-payment of RUC as a primary ground for revocation of MAP’s TSL, and failing to recognise that RUC is a civil debt and not directly related to road safety, which is the paramount consideration under the Act.
2.15The District Court Judge committed a procedural error by going beyond the evidence presented on appeal and assuming – without evidence – that the reason one of MAP’s vehicles was found to be missing a RUC distance licence during a May 2024 fleet audits was due to disregard of the law, when the RUC for that vehicle had been fully paid by MAP and it was only a case of the newest RUC distance licence having not been physically affixed to the vehicle.
2.16The District Court Judge committed a procedural error by going beyond the evidence presented on appeal and assuming – without evidence – that the reason because one of MAP’s trailers had a CoF that expired five months ago, MAP must have been operating that trailer unlawfully, when in fact this trailer was not actually being used in MAP’s operations.
2.17The District Court Judge committed a procedural error by failing to take into account that, from 7 March 2024, MAP was subject to various conditions of interim relief in the High Court at Auckland which MAP complied with, those conditions including that:
(a)MAP must ensure no vehicle is used unless that vehicle obtains a certificate of fitness every three months;
(b)MAP must ensure that daily walk-around checks are performed on, and documented for, every vehicle that is used in its goods service and those walk-around check sheets are to be provided to the Director every Friday;
(c)MAP must not incur any further (that is, fresh) RUC debt while the interim orders are in force;
(d)MAP must provide a RUC report to the Director every second Tuesday detailing every vehicle used by MAP, its odometer and hubometer readings, the dates the readings were recorded, and photographs of the vehicles’ RUC licence label;
(e)MAP must provide to the Director every Tuesday copies of its drivers’ logbooks for all days that the person was driving a MAP vehicle during the previous week.
2.18The District Court Judge committed a procedural error by failing to take into account that no issues were identified in the course of MAP’s provision of all of the above information by the Director from 7 March 2024 up to the date the District Court Judge issued his decision.
[39] MAP’s original notice of appeal contained 16 grounds of appeal. As Mr Papps, counsel for the Director notes, seven of those grounds asserted that the Judge had “erred in fact”, three grounds asserted that the Judge had “erred in fact and law”, two grounds asserted that the Judge had “erred in the course of finding” a matter, and one ground asserted that the Judge had “erred by failing to consider” a matter. Only three grounds asserted that the Judge had “erred in law”.
[40] The amended notice of appeal includes most of the 16 grounds in the original notice of appeal, but with the words “erred in fact” replaced with other phrases (such as “committed a procedural error”).
[41] The Director’s position is that, in substance, these alleged procedural errors remain errors of fact that this Court does not have jurisdiction on appeal to determine.
Appeal framework
[42] MAP and Mr Chandra bring their appeals under s 111A of the Act. That section provides as follows:
111A Appeal to High Court on question of law
(1)A party to an appeal under section 106 who is dissatisfied with the decision of the District Court on the grounds that it is erroneous in law may appeal to the High Court on that question of law.
(2)An appeal under this section must be heard and determined in accordance with the rules of the High Court.
[43] In her decision in Abraham v New Zealand Transport Agency,22 where the appeal was similarly brought on questions of law, Cull J referred to Edwards v Bairstow, which enunciated the two historical manifestations of an error of law: namely a wrong statement of principle or law or where there is no evidence to support the determination.23 The Supreme Court in Bryson v Three Foot Six Ltd adopted Lord Radcliff’s formulation and said:24
[24] Appealable questions of law may nevertheless arise from the reasoning of the Court on the way to its ultimate conclusion. If the Court were, for example, to misinterpret the requirements of s 6 – to misdirect itself on the section, which incorporates the legal concept of contract of service – that would certainly be an error of law which could be corrected on appeal, either by the Court of Appeal or by this Court….
[25] An appeal cannot however be said to be on a question of law where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless it is clearly insupportable.
[44] As Cull J noted,25 more recently in Brown v R the Court of Appeal restated the relevant test for an appeal on questions of law. The appeal must raise one or more of the following three standard errors classified by modern authorities:26
(a)a misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
22 Abraham v New Zealand Transport Agency [2017] NZHC 1483 at [17].
23 Edwards v Bairstow 1956 [AC] 14 (HL) at 35–36.
24 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
25 Abraham v New Zealand Transport Agency, above n 22, at [18].
26 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16]
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
Estoppel
[45] I will now refer to the law in relation to estoppel. I will then apply the law as I discuss each alleged error of law in turn.
[46] Where a New Zealand judicial tribunal of competent jurisdiction pronounces a final judicial decision over the parties to and the subject-matter of any litigation, any party to the litigation is estopped as against any other party to the decision from disputing or questioning that decision on the merits in any subsequent litigation.27
[47]I accept and adopt the following from the commentary in Laws of New Zealand
regarding issue estoppel as relevant to this appeal.28
(a)To establish an estoppel per rem judicatum (including an issue estoppel), it must be established that: (1) the earlier decision relied on was a judicial decision; (2) the decision was made and pronounced by a judicial tribunal; (3) the judicial tribunal had competent jurisdiction in that behalf; (4) the decision was final; (5) the parties to the earlier decision were the same persons as the parties to the proceeding in which the estoppel is raised; (6) the earlier decision was a determination of the same question as that sought to be controverted in the subsequent litigation or the earlier decision involved the same question; and (7) the decision was conclusive in rem.
(b)Under issue estoppel, a party is precluded from contending the contrary to any precise point which, having once been distinctly put in issue, has been determined against that party even if the objects of the first and second actions are different.
27 Hon Justice Fraser Laws of New Zealand Estoppel (on-line ed) at [2].
28 At [3] and [20].
(c)The matter must have been directly at issue in the first action (rather than collaterally or incidentally in issue), and it is fundamentally important that the question – whether of law, of fact or of mixed fact and law – be the same question.
(d)The earlier decision must determine some issue (lesser than the existence or non-existence of an entire cause of action) that was necessary to establish (or demolish) the cause of action set up in the later proceeding. An issue estoppel can only be founded on determinations fundamental to the earlier decision and without which the earlier decision cannot stand.
[48] Provided the recognised requirements for issue estoppel are met, the form of the earlier proceeding (being judicial review in this case) is not relevant.29
[49] It is open to the Director to raise issue estoppel in this appeal on questions of law arising from the decision of the District Court Judge on the basis of questions of law that were determined in the JR judgment, which considered the Director’s decisions. I note that in his submissions Mr Khan says that the errors were made both by the Director and the District Court Judge.
[50] In considering whether the questions of law alleged in this appeal have previously been decided in the JR judgment, care needs to be taken not to conflate legal issues with arguments or submissions in relation to those issues. I consider Mr Khan fell into that error in a number of instances.
[51] Mr Khan accepts that only the sixth requirement referred to in [47](a) is in issue. I agree. The issue is then whether there is any question of law raised in this appeal that was not determined in the JR judgment.
[52] It is worth noting that the appellants’ submissions in the District Court (a copy of which counsel for the Director provided to this Court with tracked changes) were
29 Wire Supplies Ltd v Commissioner of Inland Revenue [2006] 2 NZLR 384 (HC) at [74]–[78] (appealed to Court of Appeal, but on separate issues, in Wire Supplies Ltd v Commissioner of Inland Revenue [2007] NZCA 244, [2007] 3 NZLR 458).
identical to the submissions filed in the judicial review proceeding, save for changes as to the framework/principles on appeal as opposed to principles on judicial review and other minor changes that are not material.
Alleged errors of law
[53] In this section of the judgment, I will consider the grounds of appeal where errors of law (as opposed to alleged procedural errors) are alleged. As some of the grounds are repetitive, I will group them together. The discussion will accordingly not necessarily follow the order in which the grounds are listed in the notice of appeal.
[54] The Director’s position is that an issue estoppel exists in respect of each alleged error of law, having regard to the JR judgment. The Director further says that even if no issue estoppel exists, this Court should nonetheless uphold the relevant findings of Judge Kelly.
[55] Then in the next section of the judgment, I will consider the alleged “procedural” errors and as part of the discussion, I will consider whether or not these are in fact errors of fact.
Misapplication of the “fit and proper” person test (Grounds 2.1, 2.2 and 2.3)
[56] The Notice of Appeal alleges that the Judge: misapplied the fit and proper person test under ss 30C and 30F; erred in law by elevating the standard for fitness and propriety beyond that contemplated under the Act; and erred in law by failing to give appropriate weight to the positive criteria that applied in favour of MAP and Mr Chandra.
[57] Judge Kelly noted that whether MAP and Mr Chandra are “fit and proper persons” is informed by the legislative framework of the Act. The Judge referred to the framework as it was set out by Whata J in Stan Semenoff Logging Ltd v The New Zealand Transport Agency.30 The Judge adopted the relevant extract for the purposes
30 Semenoff Logging Ltd v New Zealand Transport Agency [2019] NZHC 1133 at [20]–[29].
of the hearing before him.31 That extract set out ss 30C and 30S. The Judge also set out s 30F.32
[58] In discussing the Director’s exercise of his powers under the Act, Judge Kelly referred to Hauraki Bulk Ltd v The Director of Land Transport.33 The Judge adopted the summary of Judge Bergseng in that case of a number of High Court and District Court decisions.34 In particular, there was a reference to the judgment of Cull J in Abraham v The New Zealand Transport Agency,35 where Judge Bergseng had noted that Cull J observed in Abraham there had been a failure to give appropriate weight to all statutory criteria that applied in Mr Abraham’s favour.
[59] Judge Kelly noted the submission of Mr Orange, counsel for MAP and Mr Chandra, that Mr Burrows had erred in his exercise of the fit and proper person test in that the Director failed to consider all of the statutory factors that applied favourably to MAP and Mr Chandra.36 The Judge noted the submission that positive factors were absent from the notices of Proposal and the Director’s decisions despite the submissions made in the Fortune Manning letter (in response to the notices of Proposal), which addressed each of them.37
[60]The Judge then said:
[74] … Provided that the Director (and a judge on appeal) has correctly understood the matters to which he or she is considering, and has actively and thoughtfully considered those matters, issues of weight become a matter for the decision-maker as expressly set out in s 30C(2). In this regard as was articulated by Judge Joyce KC in Chaparian v New Zealand Transport Agency, all matters need to be considered in their totality, the assessment being evaluative in nature. In saying this, I respectfully disagree with Judge Kellar in Brown v NZTA insofar as he said the standard of proof is the civil standard. In undertaking evaluative exercises such as this, notions of onus of proof are not particularly helpful or appropriate.
[75] Despite the need to consider all factors in their totality, there will undoubtedly be cases where the matters to which the decision maker is required to consider are so fundamental or critical that they assume an elevated
31 At [50].
32 At [51].
33 Hauraki Bulk Ltd v The Director of Land Transport [2024] NZDC 10350.
34 District Court decision, above n 1, at [57].
35 Abraham v The New Zealand Transport Agency, above n 22.
36 District Court decision, above n 1 at [70].
37 At [72].
mantle. In this regard, I agree with Mr Papps that the mandatory considerations ins 30C(l) take on greater importance to those in s 30C(2). More importantly, subject to thoughtfully considering all relevant matters, it is hardly surprising that matters for which there is some concern may outweigh matters where there is no concern. This is a natural consequence of the weight being given to the s 30C(2) matters in context.
[76] What should not be done, however, is to focus almost exclusively on transport infringement offending (or any one criterion for that matter), so as to ignore the other criteria in the Act [referring to Abraham v New Zealand].
[61] The criticisms that the appellants now make of Judge Kelly’s decision on the issue of “fit and proper” person are the same as the criticisms they made of the Director’s decision-making in the judicial review proceeding. In that latter proceeding they pleaded errors of law as:38
42.1The Director’s failure to give appropriate weight to the criteria under ss 30C and 30F of the Act that applied in favour of MAP Transport and Mr Chandra;
42.2The Director’s failure to consider and give effect to the judgments of the High Court of New Zealand pleaded at paragraph 16 herein [Boss Transport Limited v New Zealand Transport Agency [2019] NZHC 522 and Abraham v New Zealand Transport Agency].
[62]This section of the JR judgment commences as follows:
[47] It is convenient to address the first two alleged errors of law together because, in submitting that the Director failed to give appropriate weight to the criteria in ss 30C and 30F of the [Act] that he says applied in favour of MAP and Mr Chandra, Mr Khan relies on the judgment of Cull J in Abraham v New Zealand Transport Agency. Mr Khan refers to Abraham and a further judgment of Cull J in Boss Transport Ltd v New Zealand Transport Agency in support of the alleged error that the Director failed to consider and give effect to judgments of this Court.
[63]After discussing the issue, the JR judgment then reads:
[55] For the above reasons I do not consider Abraham should be understood as requiring the Director to treat the absence of negative factors as carrying a positive weighting in the fit and proper person assessment. That is particularly so where the negative factors are not relevant to the particular kind of service being assessed.
[56] Finally, the text of ss 30C(1)(a) and 30F is central to making a decision on the mandatory relevant considerations. The Director is required to consider, in particular, any matter the Director considers should be taken into account in the interests of public safety (s 30C(1)) and certain specified
38 JR judgment, above n 3, at [41].
offending (s 30F). There is no requirement to take into account the absence of such matters as offending or complaints.
[64] The judgment concludes, on this issue of “fit and proper” person, the Director did not err as alleged in the first two claimed errors of law.39
[65] I consider MAP and Mr Chandra are estopped from raising these issues in relation to the “fit and proper” person assessment in this appeal. The legal errors they allege were made by Judge Kelly are the same legal errors which were raised and determined in the JR judgment.
[66] In case I am wrong in reaching that conclusion, I turn to Judge Kelly’s consideration of the “fit and proper” person provisions.
[67] The Judge noted the submission on behalf of MAP and Mr Chandra that the “Positive factors omitted from the decisions were overwhelmingly in favour of MAP and Mr Chandra”.40 The Judge then itemised those factors from counsel’s submissions under each of the provisions: ss 30C(1)(a) and (b); s 30C(2)(c)–(d); s 30F(2)(a)–(b).41 Those submissions of counsel more or less mirror the submissions made in this appeal.
[68] The Judge’s discussion then moved to the paragraphs I have set out in [60] above (namely, [74], [75], and [76]).
[69] In his evaluation later in the decision, the Judge set out the criteria in s 30C and 30F with his assessment on each of the provisions.42 The Judge then concluded:
[115] While acknowledging MAP’s efforts at compliance with the s 198 notice of audit, standing back and taking a global assessment of all of the criteria that I am required to consider, and cross checking those against the matters in s 30C(1)(a) (i.e. the interests of public safety), I am not satisfied that it has been established that the Director was wrong to find that MAP is not a fit and proper person to have a transport service licence, or that Mr Chandra is not a fit and proper person to be in control of MAP.
[116] On balance, on my own consideration of the relevant matters, I agree with the Director’s assessment that MAP lacks reliable systems and process in place to manage risk with minimal documentary evidence that MAP’s
39 JR judgment, above n 3, at [59].
40 District Court decision, above n 1, at [72].
41 At [72].
42 At [114].
vehicle is being well maintained. Nor is there any indication that Mr Chandra has systems and processes in place to monitor work time and logbook compliance of those driving for the company.
[70] Mr Khan advanced a new argument in his oral submissions. He submitted that the s 30C(2) criteria must all be considered through the “lens of public safety” and that s 30C(1), which refers to the “interests of public safety”, is the “gateway” for considering all of the criteria in s 30C(2). He submitted this is supported by the use of the word “assessing” in s 30C(1) and the word “determining” in s 30C(2).
[71] I do not accept that submission. “Assessing” is simply the process that results in a “determination” of fit and proper.43 There is nothing otherwise in the language of the two provisions that narrows the s 30C(2) criteria to public safety issues. By way of example, s 30C(2)(e), “any history of persistent failure to pay fines incurred by the person in respect of transport-related offences”, is not directly linked to public safety. By way of further example, s 30C(2)(f), “any other matter that the Director considers it is appropriate in the public interest to take into account (emphasis added)” suggests that the criteria in s 30C(2) are to be viewed through a wider “public interest” lens rather than a narrower “public safety” lens.
[72] This interpretation is supported by the wording of s 30F, the additional criteria for a goods service. Section 30F(a) refers to “any criminal activity conducted in the course of any transport service or transport-related business or employment”. That is not limited to public safety. Section 30F(b) refers to “any offending in respect of major transport-related offences”. The subsection goes on to refer to “particularly offences relating to safety”. But it also refers to offences relating to “road user charges”. Again, they are not public safety matters.
[73] It is apparent that the Judge turned his mind to and weighed the statutory criteria for a “fit and proper person” as a Judge is able to do on appeal from a decision of the Director. Whether the Judge reached the correct conclusion on the merits is not an issue on this appeal. The conclusion the Judge reached was one that was legally available to him. But in any event, as I have already found, MAP and Mr Chandra are estopped from bringing an appeal on the issue of the “fit and proper” person test.
43 Rams Logistics Ltd v The Director of Land Transport [2025] NZHC 665.
Alleged failure to consider lesser regulatory tools (Grounds 2.4 and 2.12)
[74] The Notice of Appeal asserts that the Judge erred in law: by not considering lesser regulatory tools before resorting to revocation and disqualification, such as the imposition of conditions on MAP’s TSL under s 30U of the Act; and by failing to treat revocation and disqualification as tools of last resort.
[75] First, Judge Kelly did not fail to consider lesser regulatory tools. There is a section in the decision headed “Should other regulatory tools have been used?”, where the Judge stated:
[117] Acknowledging that revocation and suspension are ultimately measures of last resort, I have considered whether the use of other regulatory tools are more appropriate and, in particular, whether lesser options such as conditions attaching to the TSL, or relating to compliance systems, audit arrangements, or independent vehicle assessments might be imposed instead.
[118] In that regard, Mr Orange’s overall submission is that the Director’s decisions amount to a severely disproportionate response to the actual risk to public safety arising from the current operation of MAP as overseen by Mr Chandra.
[119] Mr Orange suggests that the Court could impose conditions as were imposed by the Court in Hauraki Bulk Limited v The Director of Land Transport, namely that Mr Chandra is not to be the sole person in control of MAP and there must, until further notice, be a second person in control who can work with Mr Chandra, and any other conditions it considers is required to ensure compliance. In doing, so it would also be recognised that the Director would likely, in the near future initiate a further s 198 audit process requiring Mr Chandra’s response, in light of his past issues, to be something he will need to carefully consider and respond to in order to avoid revocation and disqualification at that future date.
[76]The Judge then set out s 30U and continued as follows:
[121] As noted, the issue of concern to the Court is the general management of MAP’s operations, and more particularly Mr Chandra’s general management of MAP’s operations. Addressing areas of non-compliance that are capable of remedy will not of themselves address this concern.
[122] Having considered the matter, I agree with Mr Papps that s 30U does not confer on the Director (or this Court on appeal) a free standing power to impose conditions on a transport service licence including, for example, that MAP and its drivers undergo training, or in response to traffic offending that does not amount to non-compliance with the applicable requirements under the relevant parts of the Act.
[123] Unlike in Hauraki Bulk Limited v The Director of Land Transport, I am not satisfied that it has been demonstrated that sufficient progress has been
made by Mr Chandra in the management of MAP, or that the steps he has taken to address concerns of the Director in the intervening period, are such as to demonstrate that he and MAP are fit and proper persons for the purposes of the Act.
[77] Mr Khan also refers to the evidence of Prasheel Kumar, who swore two affidavits in the District Court, one in reply to Mr Burrows updating affidavit of 4 June 2023. Mr Khan submits that Mr Kumar, particularly in his reply affidavit, answers the concerns raised by Mr Burrows. It is not entirely clear where Mr Khan considers this evidence fits in terms of the 18 grounds of appeal. However, in the District Court the Judge considered it in the context of the submission for the appellants that it was unreasonable to proceed to immediate revocation and disqualification. I accordingly discuss it here. The relevant part of the Judge’s decision is as follows:
[103] In relation to vehicle safety, Mr Orange submits that Mr Chandra, not being a mechanic, did what any other businessman would have done, namely to seek the advice of an external mechanic.
[104] It is submitted that Mr Kumar, the director of Tivoro Investments Limited, confirmed that MAP’s vehicles are serviced and maintained every 10,000 kms with a more thorough check at 20,000kms. Further Mr Kumar‘s evidence is that is that whenever he finds any issues they are repaired and the vehicles in question are not used until the repairs are carried out.
[105] Not only is it relevant that MAP’s vehicles have a perfect safety record Mr Orange submits, but the Director did not articulate why MAP’s maintenance regime is insufficient or why Mr Chandra was unreasonable in adopting it, or whether MAP should adopt another regime instead.
[106] It is submitted that the Director acted unreasonably in proceeding to immediate revocation and disqualification when he had other tools at his disposal such as imposing conditions on MAP’s TSL before doing so.
[107] Mr Papps for the Director, on the other hand, submits that the fleet audits undertaken in May 2024, and in particular the Auckland audit, demonstrate that MAP is not maintaining sufficient standards of safety in its operations. I agree. While I acknowledge that many of the faults might be considered to be minor in nature, and that the fault in the pink-stickered vehicle (fatigue to the brake chamber) may not have been apparent to the driver on a walk-around check, the absence of a RUC distance licence on one vehicle and a [CoF] having been expired for 5 months in the case of another are matters that one might expect to have been picked up by processes in place for managing the safety of drivers and vehicles or for meeting the obligations under the Act.
[footnote omitted]
[78] Even if I were to reach a different view on the facts from Judge Kelly and consider that proceeding to revocation was incorrect, that would only suggest an error of law in the District Court decision if Judge Kelly departed from the only conclusion logically available on the evidence. That is not the case. The conclusion reached by the Judge was available.
[79] Mr Khan says it is unclear what the Judge meant by the statement that s 30U does not create a “free standing” power to impose conditions ([122] quoted in [76] above). He submits, in circumstances where revocation and disqualification are tools of last resort, the Judge certainly had the ability to suspend or impose conditions rather than revoke or disqualify as the Director did. He says the District Court Judge did not do so, and failed to give sufficient reasons as to why.
[80] In short, and in response to that submission, the effect of the provisions in s 30U is that the Director may not impose conditions where historic non-compliance had occurred, but had since been remedied, or where the problem was a lack of fitness and propriety, but the necessary requirements were now being complied with. The conditions that the Director imposes must also be rationally connected to whatever ongoing non-compliance triggered the imposition of conditions.
[81] But in any event, the issue as to the interpretation of s 30U has already been determined in the JR judgment. It records:
[102] Mr Khan submits that there were other tools at the Director’s disposal such as ordering re-training or imposing conditions on MAP’s TSL or even giving MAP the opportunity to implement its proposed new policy set out in the Fortune Manning letter.
[103] First, in relation to conditions, s 30U does not confer upon the Director a freestanding power to impose conditions on a transport service. It is unclear whether the Director could have imposed meaningful conditions that would have improved MAP’s regulatory compliance. ...
[82] The appellants are estopped from raising these grounds of appeal, as the legal issue was determined in the JR judgment.
Alleged disproportionality (Ground 2.13)
[83] The appellants allege that the District Court Judge erred in law using the regulatory regime as a punitive tool, and therefore in a manner disproportionate to the actual risk to public safety arising from the operation of MAP as overseen by Mr Chandra.
[84] This alleged error of law is related to the alleged failure to consider lesser regulatory tools (Grounds 2.4 and 2.12) considered in the above section of this judgment.
[85] While this ground of appeal appears in the notice of appeal, the appellants do not identify a basis for the allegation that the Judge used the regulatory regime for an improper punitive purpose. As is apparent from the decision, the Judge applied the fit and proper person criteria in light of the relevant statutory purpose.
[86] Turning to whether the Judge’s decision was disproportionate, that question of law has already been determined against the appellants. One of the grounds of the judicial review application was that “the revocation decision [MAP] and disqualification decision [Mr Chandra] are a disproportionate response to the matters relied on by the Director.” 44 The JR judgment contains the following:
[101] I turn to the allegation that the decisions were a disproportionate response to the matters relied upon by the Director. Disproportionality is a manifestation of unreasonableness. The high threshold of unreasonableness as a ground for review applies.
[102] Mr Khan submits that there were other tools at the Director’s disposal such as ordering re-training or imposing conditions on MAP’s TSL or even giving MAP the opportunity to implement its proposed new policy set out in the Fortune Manning letter.
[103] … But in any event I consider the Director’s decision that MAP was not a fit and proper person to hold a TSL was a proportionate response to what was before the Director.
…
44 JR judgment, above n 3, at [97].
[107] In summary, given all of the instances of regulatory non-compliance at its early stages and with no prior positive history, I consider the Director’s response that MAP was not a fit and proper person to hold a TSL was a proportionate response.
[Footnote omitted]
[87] Disproportionality as an error of law is equivalent to disproportionality as a ground of judicial review.
[88] In Hu v Immigration and Protection Tribunal, Palmer J drew an equivalence between unreasonableness as a ground of judicial review (which includes disproportionality) with unreasonableness as an error of law.45 If a decision was not disproportionate in judicial review terms it cannot be disproportionate in the error of law sense.
[89] I acknowledge that the JR judgment was directed at the Director’s decisions while this appeal is brought against Judge Kelly’s decision. However, I accept Mr Papp’s submission that this poses no bar to an issue estoppel. Judge Kelly conducted the fit and proper person assessment afresh, and reached the same decisions as the Director. My finding in the JR judgment that the Director’s decisions were not disproportionate must logically also apply to Judge Kelly’s decision.
[90] Accordingly, the appellants are precluded by issue estoppel from advancing this ground of appeal.
Chain of responsibility and appellants’ responsibilities for work-time and logbook compliance of MAP’s drivers (Grounds 2.9 and 2.10)
[91] In their notice of appeal, the appellants allege that the District Court Judge erred in law by misinterpreting the “chain of responsibility” provisions under the Act and incorrectly held that MAP and Mr Chandra were responsible for the worktime and logbook compliance of their drivers, contrary to specific wording of ss 30ZC and 30ZF, which places responsibility on individual drivers.
45 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [28]. Discussed in JR judgment at [98]–[99].
[92] Judge Kelly addresses the chain of responsibility issue from [77]–[86]. The Judge first set out the submissions of both counsel, and then said:
[86] … The positive obligation on an employer or transport service operator to retain the copy of each logbook record for a period of 12 months from the date of the [record] to monitor work time would largely be defeated if this were not the case. I also note that an offence under s 79T of the Act can be committed either by act or omission, and directly or indirectly.
[87] I do not agree with Mr Orange that Stan Semenoff Limited is authority for the proposition that in this case, that there is no basis for the Director to revoke MAP’s TSL because a clear nexus between a specific act or omission by MAP and Mr Chandra as regard work time and logbook requirements has not been established.
[88]In that decision, Whata J said:
... the purpose and scheme of the [Act] envisage a broad inquiry at s 30S (supplemented by s 30C) into the fitness of Persons in Control of transport services. This inquiry is not limited to personal acts of non-compliance or offending. Section 30C(2)(t) and (4) make it clear that other factors may be relevant to the assessment of fitness. I also agree that what might be called systemic failure over a lengthy period to comply with road regulations, including the Rules could be a ground for finding that a person in control of the transport service is not a fit and or proper person to control that service.
...
[89] While his Honour went on to say that the requirement at s 30S to be “satisfied” that the person in control is not a fit and proper person to have control of a transportation service is an exacting one that must be directed to the person subject to the inquiry, and that it is at least reasonably arguable that the decision maker must identify cogent material that shows a clear nexus between the systemic failure and the specific actions or inactions of the person under inquiry, that case involved generalisations about Stan Semenoff Limited's performance and simplistic attributions to the three persons in control. This was held to be arguably insufficient to discharge the obligation that needed to be satisfied.
[90] In this case, there is only one person in control (and sole director of MAP) being Mr Chandra such that there can be no doubt that he is the subject of the fit and proper person inquiry or that there is a clear nexus between any systemic failures of MAP, and the specific actions or omissions of Mr Chandra.
[93] The issues raised in the two grounds of appeal and the alleged errors by the District Court Judge were decided in the JR judgment as follows:
MAP’s responsibility for work time and logbook offending
[85] This is not expressly pleaded as an error of law. However, Mr Khan makes submissions on this issue and accordingly I address the issue as if it had been pleaded.
[86] Mr Khan notes that in the transport industry, drivers are subject to work time limits. They must carry and maintain a logbook recording the hours worked, among other details. He says in making the decisions the Director alleged that MAP and Mr Chandra did not have processes in place to ensure that drivers were complying with the work time limitations. But says Mr Khan, there is no “chain of responsibility” under the [Act] that requires MAP and Mr Chandra to manage the work time and logbook compliance of its drivers. Mr Khan further submits that compliance with work time and logbook rules is the responsibility of the individual drivers. Accordingly, he submits that the Director should not have taken drivers’ work time and logbook non-compliance into account.
[87] Mr Khan refers the Court to provisions in the [Act] which he says attribute responsibility for such offending solely to the drivers and not to a goods service operator. He refers to s 30ZC which provides that drivers must comply with limits on work time and s 30ZF which provides that drivers must maintain logbooks. Mr Khan points to ss 79O and 79Q under which the driver, not the company, may be prosecuted for failure to comply with work time limits or maintain their logbook. He says the only work time and logbook offences under which a company may be prosecuted is s 79T in circumstances where the transport company “caused” or “required” a driver to breach the work time limitations or not maintain their logbook.
[88] Mr Khan also refers to the Stan Semenoff Logging judgment and submits the Director did not have a proper basis to revoke MAP’s TSL unless a clear nexus between a specific act or omission by MAP and/or Mr Chandra and the driver’s breach of their work time or logbook requirements had been established.
[89] I make the same point as I made earlier in relation to Mr Khan’s submission as regards a breach of the s 198 audit requirements: the fact that the [Act] attributes criminal responsibility for work time and logbook non- compliance to drivers does not in my view affect the Director’s ability to take that non-compliance into account when making the fit and proper person assessment. As well as the discretion already referred to in ss 30C(2)(f) and 30C(4), s 30F(b) provides that it is mandatory for the Director to consider any offending in relation to major transport-related offences, particularly offences relating to safety or to road user charges. Section 30F(b) is not restricted to offending by the person who is the subject of the fit and proper person assessment.
[90] Further, and despite the provisions Mr Khan relies on, s 30P provides that a transport service driver, when using a vehicle in a transport service, must “drive on behalf of the holder of the relevant transport service licence”. As already noted, the [Act] contemplates there being a person in control of the transport service. That, indicates in my view, that the Director can take into account work time and logbook offending when considering the fit and proper person test for the transport operator.
[91] Referring back to Mr Khan’s submission that s 79T is the only work time and logbook offence attributable to a transport company I note however
that s 79R(3) provides that “every person, not being the driver of the vehicle, commits an offence where the person requires, directs, or allows a vehicle … to be used”, and the logbook is not maintained, or the logbook omits or is false in a material particular, whether or not the person knows that a logbook is not maintained or knows of the omission or falsehood, commits an offence.
[92] The use of the word “allows” which prescribes a strict liability offence, means that MAP may be criminally liable for logbook non- compliance by its drivers whether or not it is aware of that non-compliance. In my view that suggests an expectation that persons in control of a transport service will monitor and address any logbook non-compliance by their drivers. Finally, as Mr Papps points out, s 30S enables the Director to revoke a TSL on the grounds that any driver (as opposed to the licence holder or the person in control of the transport service) is not a fit and proper person.
[93] Turning to Mr Khan’s reliance on Stan Semenoff Logging, the reasoning in that case needs to be understood. In that case NZTA had revoked the company’s TSL under s 30S(1)(b), namely on the basis that any person who has control of the transport service is not a fit and proper person to have control of the service. The issue was that NZTA had not been able to attribute the systemic failure in the company’s service to any one of the three persons in control. In the present case Mr Chandra was the only person in control.
[94] Another distinction between the instant case and Stan Semenoff Logging is that here, the Director reached the view that MAP itself was not a fit and proper person to hold a transport service licence. The revocation was accordingly under s 30S(1)(a) (not s 30S(1)(b)). In Stan Semenoff Logging the Judge expressed the view that evidence of systemic failure over a long term might justify a finding that the holder of the licence is not a fit and proper person. In other words, the nexus in relation to individuals in control does not arise where the Director’s focus is the licence holder under s 30S(1)(a).
[95] In summary, although this was not pleaded as a separate error of law, I have considered the submissions. There was no error by the Director.
[94] Accordingly, given the two alleged errors of law have been decided in the JR judgment, the appellants are estopped from raising them in this appeal.
Alleged failure to establish a clear nexus between acts or omissions by MAP and Mr Chandra and the alleged systemic failures (Grounds 2.7 and 2.8)
[95] The notice of appeal alleges the Judge erred in law by failing to establish a clear nexus between specific acts or omissions by MAP and Mr Chandra and the alleged systemic failures, such as work time or logbook non-compliance by MAP’s drivers or any other issue identified by the Director concerning MAP’s drivers; and second, the Judge erred in law by relying on generalisations about MAP’s performance without identifying specific actions or inactions by Mr Chandra that would justify the revocation and disqualification.
[96] These two grounds are related to the two grounds at 2.9 and 2.10 discussed in the previous section of this judgment.
[97] It is apparent from Judge Kelly’s decision, having regard to the submissions made on behalf of the appellants set out in his decision, these were the same allegations made against the Director in the judicial review proceeding, in reliance on Stan Semenoff Logging Ltd v New Zealand Transport Agency in support of the appellants’ proposition that the Director was required to establish such a nexus. The discussion below necessarily includes some repetition from the previous section of this judgment.
[98] Judge Kelly set out a passage from the Stan Semenoff Limited judgment, saying:
[88] In that decision, Whata J said:
... the purpose and scheme of the [Act] envisage a broad inquiry at s 30S (supplemented by s 30C) into the fitness of Persons in Control of transport services. This inquiry is not limited to personal acts of non- compliance or offending. Section 30C(2)(f) and (4) make it clear that other factors may be relevant to the assessment of fitness. I also agree that what might be called systemic failure over a lengthy period to comply with road regulations, including the Rules could be a ground for finding that a person in control of the transport service is not a fit and or proper person to control that service. ...
[99]The Judge then continued:
[89] While his Honour went on to say that the requirement at s 30S to be “satisfied” that the person in control is not a fit and proper person to have control of a transportation service is an exacting one that must be directed to the person subject to the inquiry, and that it is at least reasonably arguable that the decision maker must identify cogent material that shows a clear nexus between the systemic failure and the specific actions or inactions of the person under inquiry, that case involved generalisations about Stan Semenoff Limited’s performance and simplistic attributions to the three persons in control. This was held to be arguably insufficient to discharge the obligation that needed to be satisfied.
[90] In this case, there is only one person in control (and sole director of MAP) being Mr Chandra such that there can be no doubt that he is the subject of the fit and proper person inquiry or that there is a clear nexus between any systemic failures of MAP, and the specific actions or omissions of Mr Chandra.
[100] The relevant legal issue, namely whether the Director is required to produce evidence to show a specific nexus between MAP Transport’s systemic failure and particular acts or omissions of Mr Chandra, has already been determined against the appellants in the JR judgment, as follows:
[88] Mr Khan also refers to the Stan Semenoff Logging judgment and submits the Director did not have a proper basis to revoke MAP’s TSL unless a clear nexus between a specific act or omission by MAP and/or Mr Chandra and the driver’s breach of their work time or logbook requirements had been established.
…
[93] Turning to Mr Khan’s reliance on Stan Semenoff Logging, the reasoning in that case needs to be understood. In that case NZTA had revoked the company’s TSL under s 30S(1)(b), namely on the basis that any person who has control of the transport service is not a fit and proper person to have control of the service. The issue was that NZTA had not been able to attribute the systemic failure in the company’s service to any one of the three persons in control. In the present case Mr Chandra was the only person in control.
[94] Another distinction between the instant case and Stan Semenoff Logging is that here, the Director reached the view that MAP itself was not a fit and proper person to hold a transport service licence. The revocation was accordingly under s 30S(1)(a) (not s 30S(1)(b)). In Stan Semenoff Logging the Judge expressed the view that evidence of systemic failure over a long term might justify a finding that the holder of the licence is not a fit and proper person. In other words, the nexus in relation to individuals in control does not arise where the Director’s focus is the licence holder under s 30S(1)(a).
[95] In summary, although this was not pleaded as a separate error of law, I have considered the submissions. There was no error by the Director.
[101] Accordingly, the appellants are precluded by issue estoppel from challenging Judge Kelly’s legal finding relevant to this ground of appeal.
Relevance of road user charges in fit and proper person assessment (Ground 2.14)
[102] The appellants assert that the District Court Judge erred in law by using the non-payment of RUC as a primary ground for revocation of MAP’s TSL, and failing to recognise that RUC is a civil debt and not directly related to road safety, which is the paramount consideration under the Act.
[103]The relevant part of the Judge’s decision is as follows:
Road User Charges (RUCs)
[91] Mr Orange further submits that RUCs are civil debts and are not safety issues. Mr Orange submits that it is an improper use of the regulatory regime under the Act to use the payment of RUCs as grounds for revocation of a TSL. As a road tax, it is submitted, a RUC does not impact on road safety which is the paramount consideration under the Act.
[92] I disagree. As Mr Papps rightly submits in my view, s 30C(2)(b) expressly provides that when assessing whether or not a person is a fit and proper person, the Director may take into account offending by the person in respect of transport-related offences. Section 30C(2)(e) also expressly says that the Director may have regard to any history of persistent failure to pay fines incurred by the person in respect of transport-related offences. In this regard, I agree with Mr Papps that the fit and proper person test under s 30C is not synonymous with a ‘public safety’ test as MAP and Mr Chandra appear to suggest.
[93] I also agree with Mr Papps that s 30A(l) imposes an obligation on the holders of TSLs to ensure that no vehicle is used in the service unless and until all fees payable in respect of the vehicle have been duly paid (or appropriate arrangements made for payment).
[94] RUCs are hypothecated charges which are used to fund the wider land transport system. I agree with Mr Papps that just because a RUC is recoverable like any civil debt does not mean that a RUC has no impact on road safety under the Act. Without the timely payment of RUCs the land transport system will be affected to a greater or lesser extent.
[95]I find no merit in MAP’s and Mr Chandra’s submissions on this point.
[104]The same issue was raised and decided in the JR judgment as follows:
[71] The applicants plead that it was an error of law for the Director to take into account non-payment of RUC when making the decisions.
[72] Mr Khan submits that a RUC debt is a civil debt that is recoverable like any other civil debt. But he says the Director did not seek to recover the RUC debt from MAP in that way. Mr Khan submits this is an improper use of the regulatory regime under which the paramount consideration is public safety. He says the non-payment of RUC, a road tax, does not impact public safety.
[73] I do not accept that the Director is not able to take non-payment of RUC into account in making the decisions. First, s 30C(2)(b) provides that the Director may take into account “any offending by the person in respect of transport-related offences (including any infringement offences)”. That would appear to include RUC offences. Second, even if I am incorrect in that regard, the Director may take into account, under s 30C(2)(f) “any other matter that the Director considers it is appropriate in the public interest to take into
account” and, under s 30C(4) “any other matters and evidence as the Director considers relevant”.
[74] The effect of Mr Khan’s submission is that the Director is not able to take into account any instances of regulatory non-compliance that do not directly impact public safety. I do not accept that submission. The statutory test is a “fit and proper person” test, not simply a “public safety” test. To illustrate that point, s 30C(2)(e) provides that the Director may take into account “any history of persistent failure to pay fines incurred by the person in respect of transport-related offences”. On its face, a persistent failure to pay fines is not related to public safety but the statute provides for the Director to be able to take that failure into account.
[75] It is also the case that holders of TSLs have primary responsibilities beyond public safety considerations. Section 30A(1)(b) provides that a holder of a TSL must ensure that no vehicle is used in the service unless and until all fees payable have been paid. For the land transport system to function those involved in the system must pay their fees. I consider a failure to pay those fees can be taken into account when considering whether the licence holder is a fit and proper person to hold the licence. That does not change simply because a RUC debt can be recovered in the same way as any other civil debt.
[76]There is no error of law established on this point.
[105]The appellants are estopped from arguing this alleged error of law.
MAP’s failure to comply with s 198 audit (Ground 2.6)
[106] The appellants allege that the District Court Judge committed a “procedural error” by finding that MAP had failed to comply with an audit carried out by the Director in circumstances where MAP had not been charged with any such failure, let alone convicted, and when there was insufficient evidence before the Court of any such failure.
[107] Mr Papps accepts that while this ground of appeal is drafted so as to allege a “procedural error”, it does raise a pure question of law, namely whether the Director can take into account the response by a party to a s 198 audit notice, without there being a conviction for non-compliance with the order under s 51 of the Act.
[108]On this issue, Judge Kelly said:46
[111] I also agree with Mr Papps that compliance with the audit is relevant to the fit and proper person test under s 30C in that it is the mechanism provided in the Act by which the Director can obtain information relevant to
46 District Court decision, above n 1, at [111].
the interests of land transport safety. Failure to comply with an audit goes to the heart of the Director’s ability to assess and regulate compliance with the Act. While it is a criminal offence to fail to comply, there is nothing in the Act that precludes the Director from taking that failure to comply into account when assessing whether the holder of a TSL or the person in control of the operation covered by that TSL are fit and proper persons. Where the Director is satisfied that the failure warrants bringing a charge under s 51 that is open to the Director. Where that is not the case, however, it is not correct to say that the Director is wrong to factor that non-compliance into his consideration, the issue then becoming one of weight.
[109] I determined that same question of law against the appellants in the JR judgment as follows:
[61] The applicants claim that it was an error of law for the Director to take into account its non-compliance with the September 2023 s 198 audit. Mr Khan submits that is because a failure to comply with a requirement under s 198 of the [Act], without reasonable excuse, is an offence with a maximum penalty of a fine not exceeding $5,000. Mr Khan submits that MAP has not been found guilty of any charge in relation to the s 198 audit and in fact has not even been charged. Mr Khan submits that the Director has revoked the TSL on the basis of “alleged and unproven non-compliance”.
[62] In making this submission Mr Khan conflates criminal liability for failure to comply with a s 198 audit and the relevance of such a failure to the fit and proper person assessment. I do not consider there is any reason why, where there is a prescription for an offence and penalty for non-compliance, that should preclude the Director from taking that non-compliance into account when making his fit and proper person assessment provided there is a basis for the Director to conclude there is a failure to comply with an audit.
[63] The Director issues a s 198 audit notice in the interests of land transport safety. In carrying out his role, which includes monitoring, investigating, managing and enforcing compliance in relation to matters under land transport legislation, the Director assesses both any risk to land transport safety by non-compliance and also potentially whether a person continues to be a fit and proper person to hold a TSL.
[64] The s 198 audit procedure is the primary way the Director can get information from the regulated party to make his assessment. In circumstances where a regulated party does not comply with a s 198 notice, that impacts the Director’s ability to assess the party’s regulatory compliance. I accept that can impact on the fit and proper assessment.
[footnotes omitted]
[110] I also note that MAP and Mr Chandra did in fact accept that they did not provide some of the requested documents because they had not retained those documents. Judge Kelly referred to Mr Chandra’s explanation that he did not provide certain documents because he had not retained them, and said:
[112] Standing back, I am also satisfied that the missing information reflects poorly on Mr Chandra, as the person in control of MAP, insofar as it is an indicator that he is not aware of the level of offending within his operations. I agree with NZTA that this is something that one would reasonably expect Mr Chandra to be aware of.
[113] The same applies to Mr Chandra not retaining all relevant vehicle maintenance and servicing records.
[111]I reached the same conclusion in the JR judgment:
[69] Even if MAP would have been able to avoid criminal liability for the failure to comply with a s 198 audit in relation to this category of documents, I accept the Director is entitled to take into account the fact that MAP had not retained those records. I accept Mr Papps’ submission that this particular omission is relevant because it tends to show that Mr Chandra, the person in control of MAP, did not have full visibility over MAP’s operations. Mr Khan in fact accepted in his written submissions that the failure to retain those records “may reflect badly on MAP and Mr Chandra.
[112] The appellants are precluded by issue estoppel from pursuing this ground of appeal.
Alleged procedural errors
[113] A number of grounds of appeal allege “procedural errors” by, for example, going beyond the evidence presented on appeal.
[114] I will proceed on the basis that the appellants are alleging, in error of law terms, that the Judge made “a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence”.47
[115] The Director’s position is none of the “procedural” grounds of appeal meet those thresholds.
Growth in RUC debt (Ground 2.5)
[116] The appellants allege in their notice of appeal that the Judge “committed a procedural error by going beyond the evidence presented on appeal and assuming –
47 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
without evidence – that MAP’s road user charges (RUC) debt had grown between December 2023 and 31 May 2024, that MAP was continuing to over run its RUC licences after December 2023, when in fact MAP had complied with its fresh RUC obligations post December 2023 and the increase in RUC debt between December 2023 and 31 May 2024 was on account of historic RUC debt pre-dating December 2023 that the Director of Land Transport (Director) had only invoiced post-December 2023 and related penalties.”
[117] That allegation cannot be sustained when regard is had to the evidence of Mr Burrows, namely, that MAP Transport had accrued fresh RUC debt after December 2023.
[118] As at the date of the Decision, MAP owed a total of $24,752.70 in unpaid RUC to NZTA. MAP made a RUC payment in late December 2023, which reduced its RUC debt to $4,571.30.
[119] By 31 May 2024, MAP’s RUC debt had increased to $46,073.26. Mr Burrows’ breakdown of that RUC debt in a table annexed to his updating affidavit shows that invoices for RUC debt after December 2023, totalling $36,895.01, had been issued to MAP on 4 April 2024.
[120] There is no evidence to challenge that breakdown. In his affidavit Mr Chandra simply says he paid the last of the RUC debt that MAP had “inherited” when it purchased vehicles from another transport operator, by way of a payment of
$21,586.69 on 21 December 2023. Accordingly, Judge Kelly made a proper assessment of MAP’s non-compliance with RUC on the evidence before him.
[121]This ground of appeal fails.
Systems and processes to monitor work time and logbook compliance (Ground 2.11)
[122] The appellants allege that the District Court Judge committed a procedural error by failing to consider the systems and processes that MAP had in place to monitor work time and logbook compliance of its drivers.
[123] Judge Kelly did consider whether systems had been implemented. The Judge noted the submission that had been made to the Director in the Fortune Manning letter in response to the notices of Proposal, as follows:
[36] In addition, MAP submitted that Mr Chandra wished to move MAP all drivers from handwritten logbooks to electronic logbooks which once adopted, would largely eliminate the possibility of falsification of logbooks, and alert drivers as to when they need to be taking breaks so that there can be no accidental slips.
[37] It was further submitted that Mr Chandra has communicated that worktime and logbook breaches will not be tolerated and that at Fortune Manning's recommendation, MAP would be implementing a 'Worktime and Logbook Policy' (a copy of which was provided to NZTA).
[124] Mr Burrows, in his affidavit of 3 April 2024, explains why he put limited weight on the appellants’ statements that they would improve work time and logbook processes. He said:
63.However, I remained concerned about work time and logbook recording issues. While MAP Transport indicated its “wish” to move all drivers to electronic logbooks, it did not say that it was in fact going to do so or when. Nor did it advise when it intended to adopt its Worktime and Logbook Policy – just that it “will be” adopting it.
64.In short, MAP Transport’s submissions did not contain any material demonstrating that there had in fact been an improvement in the work time and logbook compliance of its drivers. MAP Transport had not provided any recent samples of its drivers’ logbooks to show improved logbook compliance.
65.It is also the case that a transport service operator has obligations (as well as the individual drivers) to manage work time and fatigue among their drivers. NZTA had not seen any satisfactory evidence that MAP Transport was properly checking or auditing its drivers’ logbooks to ensure compliance with work time and logbook requirements.
[125] Mr Burrows’ evidence provides an evidential basis for Judge Kelly to have concluded, as follows:
[116] On balance, on my own consideration of the relevant matters, I agree with the Director's assessment that MAP lacks reliable systems and process in place to manage risk with minimal documentary evidence that MAP's vehicle is being well maintained. Nor is there any indication that Mr Chandra has systems and processes in place to monitor work time and logbook compliance of those driving for the company.
[126]This ground of appeal fails.
Missing RUC distance licence and use of vehicle with expired CoF (Grounds 2.15 and 2.16)
[127] The notice of appeal alleges that the Judge committed a procedural error by going beyond the evidence presented on appeal and assuming – without evidence – that:
(a)the reason one of MAP’s vehicles was found to be missing a RUC distance licence during the May 2024 fleet audits was due to a disregard of the law, when the RUC for that vehicle had been fully paid by MAP and it was only a case of the newest RUC distance licence having not been physically affixed to the vehicle; and
(b)the reason because one of MAP’s trailers had a CoF that expired five months earlier, MAP must have been operating that trailer unlawfully, when in fact this trailer was not actually being used in MAP’s operations.
[128] Mr Khan did not address these grounds of appeal in either his written or oral submissions. But I will address them nevertheless.
[129] I do not consider it can be said the Judge made findings as alleged. The relevant passage in the decision is a short paragraph where Judge Kelly sets out the events as described in Mr Burrow’s affidavit, being events that had occurred since the Director’s decisions. The Judge said:
[69] Mr Burrows also notes that NZTA has identified through driver logbooks supplied to it that one trailer had been operating after 13 December 2023 when its most recent CoF expired. This trailer was also operating without a current RUC licence although a mechanic attended at the inspection and attached an up-to-date RUC licence to the unit. [footnote omitted]
[130] Whether or not the missing distance licence was “only a case of the newest RUC distance licence having not been physically affixed to the vehicle”, operating a vehicle without an up-to-date distance licence physically affixed is, in any event, a breach of MAP’s regulatory obligations.
[131] As to the error alleged in [127](b) above, Mr Burrows explains in his 4 June 2024 affidavit that, in the Christchurch fleet audit, the CoF for one trailer unit had expired on 13 December 2023. The Director had identified, through driver logbooks supplied to NZTA pursuant to the conditions of MAP’s interim relief, that the trailer had been operating after 13 December 2023. The appellants have produced no evidence to rebut Mr Burrows’ evidence that the trailer unit had been operating.
[132]These grounds of appeal fail.
MAP continuing to operate pursuant to interim relief (Grounds 2.17 and 2.18)
[133] The appellants allege that Judge Kelly “committed a procedural error by failing to take into account that, from 7 March 2024, MAP was subject to various conditions of interim relief in the High Court at Auckland, which MAP complied with”. Those conditions are set out in the notice of appeal and are repeated in [38] above.
[134] The appellants also allege that the Judge committed a procedural error by failing to take into account that no issues were identified in the course of MAP’s provision of information to the Director under the interim relief conditions.
[135] The difficulty for the appellants with this ground of appeal is that they did not produce in the District Court any evidence about compliance with the interim relief conditions. The Judge cannot be criticised for not considering material that was not before him.
[136]This ground of appeal fails.
Length of Mr Chandra’s suspension
[137] Mr Khan makes an oral submission that the District Court Judge erred in not considering the length of Mr Chandra’s suspension, namely five years. This point was not alleged as an error of law in the notice of appeal in this Court, nor was it referred to in Mr Khan’s written submissions. I will nevertheless consider the submission.
[138] Mr Chandra brought his appeal in the District Court under s 106 of the Act. Appeals under s 106 are subject to the District Court Rules 2014.48 Relevantly, r 18.19 provides that “[a]ppeals are by way of rehearing.”49 When an appeal is by way of rehearing, the appeal is determined by the Court which must consider for itself the issues which had to be determined at the original hearing.50
[139] While it is correct that the Judge did not address the length of Mr Chandra’s suspension, and while the appeal in the District Court proceeds as a rehearing, the issue needed to have been raised in the District Court appeal before the Judge was required to consider whether or not there was an error by the Director in relation to the length of the suspension.
[140] The notice of appeal in the District Court sought orders that the following decisions be “reversed or modified”:
1.1The decision to revoke the Transport (Goods) Service Licence (TSL) No 0332817 issued to MAP Transport Ltd; and
1.2The decision to disqualify and prohibit Adwin Jacob Chandra from holding a Transport Service Licence or being a person in control of a transport service for a period of 5 years.
[141] The grounds in the notice of appeal in the District Court are general and focus on the disqualification per se rather than the length of the disqualification as follows:
2.1The Respondent erred in the Decisions.
2.2The Appellants are fit and proper persons to hold a TSL and be in control of a transport service; it is in the interests of justice to reverse or modify the Decisions; and
2.4 Upon the further grounds appearing in the affidavit of Adwin Jacob Chandra to be filed in support of this application.
[142] The appellants did not address the length of the disqualification in their written submissions filed in the District Court. Those submissions commenced with an introduction, then a background and then a section on the law. There was then a
48 LTA, s 111(3).
49 See also, Brown v New Zealand Transport Agency DC Dunedin CIV-2010-012-808, 14 April 2011 at [32].
50 Pratt v Wanganui Education Board and Ors [1977] NZLR 476 at 490.
heading: “The errors in the Director’s Decisions”. The submissions state under this heading as follows:
36.In light of the above legal principles, these submissions will now address where the Director went wrong in making (sic) its Decisions.
[143] The submissions do not say that the “Director went wrong” in relation to the length of the disqualification. The Court has no information on whether this issue was raised orally in the District Court.
[144] Mr Chandra’s affidavit in support of his appeal in the District Court similarly does not mention this issue. He concludes his affidavit simply by asking the Court to reverse the Director’s two decisions “so that I can continue to operate my business”.
[145] In those circumstances, it does seem somewhat unfair to now assert the Judge erred in not considering the length of the disqualification. All indications are that the issue before him was binary: to disqualify or not.
[146] However, the Notice of Appeal does clearly raise the length of the disqualification in 1.2 (quoted in [140] above). There is no record of that point being abandoned.
[147] Accordingly, and not without some hesitation, I conclude the Judge erred in not considering the length of Mr Chandra’s disqualification.
[148] I propose to send the matter back to the District Court for the Judge to consider this, but only this, issue.51
Result
[149] The appeal by Mr Chandra in relation to the length of his disqualification is allowed. The matter is returned to the District Court for the Judge to determine this issue (refer [137]–[148] above).
51 Section 111A(2) and High Court Rules 2016, r 20.19(1)(b)(ii).
[150] The appeals by MAP Transport Ltd and Mr Chandra against the decision of Judge Kelly are otherwise dismissed.
Costs
[151] In his submissions Mr Papps addressed the issue of costs briefly. He submits that costs should be awarded to the Director on a 2B basis with a 50 per cent uplift together with reasonable disbursements. He makes the submission that the appellants’ attempt through this appeal to relitigate questions of fact, and questions of law already determined in the appellants’ judicial review application, is unmeritorious and should attract increased costs.
[152] Assuming the Director wishes to continue with his application for costs a memorandum expanding on the points made in the appeal submissions and referred to above is to be filed and served within 15 working days of the date of this judgment. Any response by MAP and Mr Chandra is to be filed and served within 15 working days of the date of service of the Director’s memorandum.
[153] Costs memoranda are to be no more than five pages excluding attachments. I will consider costs on the papers.
Gordon J
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