Pohoikura Waitoa Logging Limited v New Zealand Transport Agency HC Gisborne CIV 2010-416-277

[2010] NZHC 2026

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2010-416-277

BETWEEN  POHOIKURA WAITOA LOGGING LIMITED

Plaintiff

ANDTHE NEW ZEALAND TRANSPORT AGENCY

Respondent

Hearing:         19 November 2010 (by telephone) Counsel:     G W Calver for Applicant

T J McKenzie for Respondent

Judgment:      19 November 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Rishworth Wall & Mathieson, PO Box 55, Gisborne Raymond Donnelly & Co, PO Box 533, Christchurch Counsel:

G W Calver, PO Box 1087, Hastings

POHOIKURA WAITOA LOGGING LIMITED V THE NEW ZEALAND TRANSPORT AGENCY HC GIS CIV 2010-416-277  19 November 2010

Introduction

[1]      Pohoikura Waitoa Logging Ltd (the company) seeks an order under s 8(1)(c) of the Judicature Amendment Act 1972, to prevent a transport service licence that it holds from being revoked.  If no order were made, the revocation would be effective as from 5pm today.

[2]      The  interim  order  is  sought  until  such  time  as  an  appeal  against  the revocation to the District Court or a judicial review application to this Court is heard and determined.

[3]      The evidence suggests that if an interim order were not granted, the company cannot continue to carry on business.  Its shareholders, Mr and Mrs Waitoa, would lose their investment and employees would lose jobs.

Background

[4]      The company has carried on business as a transport company in Gisborne since August 2007.   It does so as holder of transport service licence 023194.   Its business consists of carting logs.  At present, two logging trucks are operated.  While two others trucks are owned by the company, I am told by Mr Calver, for the company, today that it is not intended to use those two additional trucks during the period of any suspension of the revocation.

[5]      The decision-maker in respect of the revocation of the licence is the New Zealand Transport Agency (the Agency).  It is responsible for enforcing legislation relating to the licensing of goods and passenger services, throughout New Zealand.

[6]      Following a series of dealings, from sometime in July 2009 until the present, the Agency gave notice that it was considering revoking the company’s transport service licence.   An opportunity to make submissions was given.   However, the Agency was not persuaded to the contrary and, on 9 November 2010, gave notice that the licence would be revoked effective from 5pm today.  The major concern is

that the “persons in control” of the operation, Mr and Mrs Waitoa, are not fit and proper persons to hold a transport service licence.

Analysis

[7]      The relevant considerations to be taken into account in determining whether the  “fit  and  proper  person”  criteria  are  met,  are  set  out  in  s 30C  of  the  Land Transport Act 1998 (the Act).

[8]      An appeal lies from the decision of the Agency, under s 106 of the Act.  That appeal was brought in time, but there is no jurisdiction for the District Court (to which such an appeal is brought) to stay the operation of the revocation until the appeal is heard.

[9]      Because a number of the grounds are also grounds on which judicial review might be sought, a separate judicial review application was filed in this Court so that interim relief under s 8 could be considered.   Although many of the grounds on which the company contends the licence should not be revoked are based on public law remedies, in particular breaches of the principles of nature justice, there are other more substantive concerns that would, in all probability, need to be addressed under the appeal.

[10]     For those reasons, Mr Calver prefers that the appeal proceed.   An appeal hearing over two days is not available until April 2011.  Two days are likely to be required because cross-examination of witnesses is likely.

[11]     Notwithstanding appeal rights, this Court can entertain an application for judicial review.[1]   Interim relief may be granted.[2]

[1] Judicature Amendment Act 1972, s 4(1).

[2] Ibid, s 8(1)(c) and (2).

[12]     The threshold question is whether it is necessary to make an interim order for the purpose of preserving the position of the applicant.  In doing so, the Court has power  to  declare  that  any licence  that  has  been  revoked  will continue  in  force

pending further order of the Court.[3]    The Court can also declare that any Crown agency ought not to take further action consequential on the decision made pending further order of the Court.[4]    Finally, under s 8(3), the Court is entitled to impose conditions on any order it may make.  The fact that no gloss should be put on the statutory test  was  articulated  in  Carlton  & United  Breweries  Ltd  v  Minister  of Customs.[5]

[3] Ibid, s 8(1)(c).

[4] Ibid, s 8(2).

[5] Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).

[13]     It is impossible, on affidavit evidence, to express any view on the merits. The balance to be struck is between the public interest in road safety and the private interest of Mr and Mrs Waitoa in their business not being able to survive, if no order were made.

[14]     The Agency’s position is that public safety must trump private interests of that type.  Mr Mackenzie, for the Agency, has pointed out that there are no financial hardship criteria in the legislative tests on this topic.

[15]     I am aware that charges have been brought against the company and Mr Waitoa.  They were heard before Judge Tompkins in the District Court at Gisborne on 19 October 2010.  The Judge reserved his decision.  I would expect a decision would be available by early December, at the latest.

[16]     Mr Mackenzie and Mr Calver have advised  me that, while there  are no charges such as careless or dangerous driving among those being considered by the Judge, there are some safety related charges; including alleged falsification of statements in a log book to mis-state the amount of rest of particular drivers when driving the trucks and that the vehicles were not up to certificate of fitness standard at a particular time.  Obviously, an inability to meet certificate of fitness standards and the possibility of tired drivers on the road in large trucks do give rise to public safety considerations.

[17]     The affidavit sworn by Mr Guy, the Commercial Licensing Manager, for the

Agency, details a litany of alleged breaches of log book and work time regimes,

Road User Charges Act 1977, audit notice requirements and the like, in both 2009 and 2010.

[18]     I consider that provided adequate protections can be put in place by way of conditions, it is preferable to make an interim order to preserve the company’s position, at least until Judge Tompkins decision is available and this Court can have a more firm foundation on which to consider whether an interim order should continue.

[19]     A relatively short period of time is required, merely sufficient to enable the reserve judgment to be delivered and considered by counsel.  As I am sitting as a Duty Judge in Gisborne on 14 and 15 December 2010, it will be possible to have the interim relief application listed before me at that time, for reconsideration.

[20]     I  propose  to  make  conditions  requiring  the  company  to  obtain  new certificates  of  fitness  for its  business  before operating the  vehicles  on  a public highway or road and to allow random inspections to be undertaken by the Agency with leave to apply to the Court to rescind any interim order, if safety concerns are identified  that  would  justify that  course.    I consider  those  orders  will  properly balance the competing public and private interests.

Result

[21]     I make the following orders:

a)        A declaration that the company’s transport service licence, number

0233194, shall continue in force, pending further order of the Court, notwithstanding the Agency’s decision of 9 November 2010 to revoke it.

b)The  Agency  ought  not  to  take  any  steps  in  consequence  of  its revocation of the licence, pending further order of the Court.

c)        The declaration I have made is conditional on

i)the company obtaining a new certificate of fitness for vehicles ECM207 (Scania truck), 6211S (Patchell trailer), BLF319 (Kenworth truck) and 7175E (Patchell trailer) before operating those vehicles on any public highway or road following the making of this order and not using any other vehicles in its fleet.

ii)the  Agency  may  undertake  random  inspections,  for  safety reasons, of the fleet operated by the company.  In the event of any safety concerns coming to its attention which, in its view would justify reconsideration of the interim order promptly, leave to apply on 24 hours notice to rescind the order is reserved.

[22]     The application for interim orders is adjourned until midday on 15 December

2010 for further argument, having regard to the terms of the reserved judgment of Judge Tompkins on the criminal charges that he heard on 19 October 2010.   The Registrar shall forward to me at the same time it is sent to counsel, a copy of Judge Tompkins judgment.

[23]     Any further affidavits by either party may be filed and served on or before 10

December 2010, for consideration on the renewed application for continued interim relief.  Submissions in writing shall be filed and exchanged contemporaneously by

5pm on 13 December 2010.

[24]     Costs reserved.

P R Heath J