Moffatt v New Zealand Transport Agency HC Christchurch CIV 2010-409-2397

[2010] NZHC 2091

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2010-409-002397

BETWEEN  STUART BRUCE MOFFATT Applicant

ANDNEW ZEALAND TRANSPORT AGENCY

Respondent

Hearing:         19 November 2010

Appearances: R Kelly for Applicant

M Zintl for Respondent

Judgment:      19 November 2010

JUDGMENT OF FOGARTY J

[1]      This is an application that this Court set aside its interim order made on

22 October last.

[2]      The application was based first on the proposition that the respondent agency, through Mr Stevenson, had not exercised a statutory power of decision and therefore there was no basis for judicial review.  (This was because Mr Stevenson had simply removed the licence from the Register because it had been deemed to be removed by s 30 O(2) of the Land Transport Act.)  That is an argument that could be pursued at the main hearing.  It is sufficient at this stage to note that while these proceedings are cast as an application for judicial review.  Normally such applications are examined under the Judicature Amendment Act 1972.   That is a statute which enables a procedural reform.   The inherent jurisdiction of this Court to ensure that all government is under the rule of law, which includes the need for fair processes.  It is

an exercise of the Court’s inherent jurisdiction and accordingly where, it may be

MOFFATT V NEW ZEALAND TRANSPORT AGENCY  HC CHCH CIV 2010-409-002397  19 November

2010

that, a decision is not an exercise of a statutory power of decision but is, nonetheless, an exercise of a government power, then the Court can proceed by way of the prerogative writs of certiorari mandamus, prohibition, and/or the remedy in the case of the Crown, declaration, and often does.  The normal case cited for this proposition is the decision of Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 but it contains nothing new. The law in this regard has been in place for hundreds of years, well before the Judicature Amendment Act 1972.

[3]      I am satisfied that there is a good argument that Mr Stevenson has exercised a government power in the letters that he wrote to Mr Moffatt of 16 August and

1 October.  Whether or not he was right in writing those letters is a matter that will be examined at the substantive hearing.

[4]      That anticipates my answer to the second ground of opposition to an interim order, which was that the interests of public safety overwhelmed the need to protect the  livelihood  of  Mr  Moffatt.    Like  many  businesses  associated  with  families, Mr Moffatt has run the business under a variety of companies.  At least one of these companies is pursuing an appeal against the revocation of a licence.  The affidavits, however, indicate that the business associated with Mr Moffatt has been generating a turnover of $40,000-$60,000 a month.   I see this case as falling within the line of authorities following the leading decision of Ridge v Baldwin [1964] AC40 whereby the Courts will scrutinise carefully any government decisions or exercises of government power which deprive a citizen, or group of citizens, or some form of incorporated or unincorporated business, however you look at it, would deprive such persons of their income, and particularly also if it would potentially bring a business to an end. In my view this is one of those cases.

[5]      I  distinguish  the  case  of  O’Malley  v  Jones  HC  Christchurch  CP64/02

8 November 2002, Chisholm J, on the grounds that Mr O’Malley wanted an interim licence in order to fly his helicopter to his holiday home.  In the case of Johnson v Attorney-General  HC  Napier  CP24/97  1  October 1997,  Gallen  J,  there  the  taxi organisation had its approval as an organisation revoked.  But Gallen J appeared to accept the argument for the Crown was that that did not deprive the 40 taxi drivers employed or associated with the organisation from continuing their livelihood.

[6]      Mr Zintl argued here that the employees of Mr Moffatt, and Mr Moffatt himself, considered as a truck driver, could work in the transport industry in the meantime.  In my view that bypasses the question of whether or not he would keep his business, using the word “his” in a loose sense to incorporate the businesses associated with the limited liability companies with which he is associated.

[7]      For these reasons I am not satisfied that there is a traffic safety reason which overwhelms the need to protect his business while the Transport Agency’s actions are scrutinised by this Court.   On the other hand, if Mr Moffatt or any persons associated with him, significantly breach the law or have an accident, I hope not, but in any way raise dramatically the question of the public safety again, then leave is reserved for an application to be made to bring this interim order to an end.  That application can be made on 72 hours’ notice and would be heard in the first instance by telephone.

[8]      I am, however, sufficiently impressed by the public safety issues to consider this case needs an urgent hearing.  It is set down for hearing before me in Dunedin on Friday, 4 March, at 10 am.  I will leave it to counsel to agree to a timetable for filing any further documents or submissions.

[9]      Costs are reserved.  Leave, of course, is reserved to counsel to apply for case management orders in the event there is any kind of impasse as to the exchange of documents on a timetable towards the hearing.

Solicitors:

Wilkinson Adams, Dunedin, for Applicant

Raymond Donnelly & Co, Christchurch, for Respondent