West v Director of Land Transport
[2025] NZHC 726
•1 April 2025
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2025-463-000005
[2025] NZHC 726
BETWEEN NOEL GRAHAM WEST
Applicant
AND
DIRECTOR OF LAND TRANSPORT
Respondent
Hearing: 14 March 2025 Appearances:
S Khan and M Orange for Applicant
J Papps and B McConnell for Respondent
Judgment:
1 April 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 01/04/2025 at pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Fortune Manning, Auckland Chapman Tripp, Wellington
WEST v DIRECTOR OF LAND TRANSPORT [2025] NZHC 726 [1 April 2025]
Introduction
[1] The applicant Mr Noel West is in his late sixties and has worked in the transport industry for over 40 years. He has held a Transport Service Licence (TSL) since 1984. TSL’s are issued by the Director of Land Transport (Director) the nominal head of the New Zealand Transport Agency (NZTA). The test under the Land Transport Act 1998 for whether someone can hold a TSL is whether they are a “fit and proper person” to be in control of a transport service.1
[2] On 15 January 2025 the Director revoked Mr West’s TSL based on a finding that Mr West is no longer a fit and proper person to hold a TSL. The primary reason for the finding was that the director believed Mr West had improperly permitted another company, Foote & Co Ltd (Foote & Co) to operate transport service vehicles using his TSL after Foote & Co’s own TSL was revoked in 2024.
[3] Mr West has filed an application for judicial review of the Director’s decision. Pending a hearing on the substantive application he seeks interim orders preventing the Director from enforcing the revocation. Interim orders to that effect were made on 3 February 2025 pending this hearing.
[4]The application for interim relief is opposed by the Director.
Background
[5] Mr West is friends with Paul Foote, the director of Foote & Co. Foote & Co provides waste removal and skip bin hire throughout the eastern Bay of Plenty. In January 2024 Foote & Co’s TSL was revoked primarily because of concerns about the safety of the Foote & Co fleet. At the time Mr Foote was the person completing the mechanical servicing and maintenance of the fleet.
[6] In June 2024 Mr Foote sought Mr West’s help to manage the company’s transport operations and Mr West agreed to do so voluntarily, he says, believing that his TSL could apply if he operated the service.
1 Section 30C.
[7] The Director’s position is that Mr West sought to transfer his TSL to Mr Foote which is not permitted by the Land Transport Act. An underlying premise of the regulatory regime is that the holder of a TSL is the party responsible for operating and managing the relevant transport service. In order for the Director to perform his regulatory functions effectively, the Director needs to know who is operating and who has control of a transport service.
[8] The Director says that Mr West essentially attempted to deceive the Director by permitting Foote & Co to use his TSL as a ruse to allow Foote & Co to avoid the consequences of the revocation of its own TSL and to continue its day-to-day operation unchanged.
[9] This came to the attention of the Director because in July 2024, police stopped Foote & Co trucks and noticed that they displayed Mr West’s TSL on a handwritten label despite being registered to Foote & Co. NZTA enforcement officers informed Mr West that his TSL could not be transferred and that he could only lawfully operate the services by leasing the trucks and employing the drivers himself.
[10] The handwritten label did not comply with the requirements of the Land Transport Rule: Operator Licensing 2017. Vehicles operating in a transport service must display a TSL card issued by the Director. Mr West subsequently ordered the required TSL labels.
[11] Mr West subsequently completed basic lease agreements with a $1 per month nominal lease amount.
[12] On 9 September 2025 police conducted a roadside inspection of a vehicle registered to Foote & Co. The inspection did not identify any defects. The driver told police that the vehicle was operated under Mr West’s TSL and produced a lease agreement.
[13] On 16 September 2024 a vehicle registered to Foote & Co was inspected on the roadside by police. Two defects were identified, and the vehicle was issued with a pink sticker which is a sticker issued when the enforcement officer inspecting the
vehicle considers that the vehicle is unsafe to use on the road and must be immediately placed out of service. The defects must be rectified, and the vehicle must obtain a new Warrant of Fitness or Certificate of Fitness (COF) (whichever is applicable) before it may again be operated.
[14] On 18 September 2024 police conducted a roadside inspection of another vehicle registered to Foote & Co. This inspection did not identify any defects.
[15] On 7 October 2024 police conducted a roadside inspection of a further vehicle registered to Foote & Co. Mr Foote was driving. No issues were identified with the vehicle but there were issues with the logbook.
[16] On 18 October 2024 Mr West and Mr Foote met with an enforcement officer. At the meeting, the enforcement officer served Mr West with an audit notice demanding, among other things, proof of lease payments and invoices for Mr West’s services to Foote & Co. Mr West’s position is that he worked voluntarily, and the $1 payments were nominal so many of the documents sought by the Director did not exist.
[17] At the same meeting, Mr West was also shown the list of vehicles currently registered to Foote & Co which NZTA understood were being operated under Mr West’s TSL. The audit notice mentioned above required Mr West to present these vehicles for inspection on 19 October 2024. Mr Rossiter’s affidavit states that Mr West immediately passed the list to Mr Foote to review and “appeared to have little understanding of which vehicles were being operated under Mr West’s goods service licence”. The Director maintains that Mr West did not appear to be aware of aspects of Foote & Co’s vehicle maintenance regime including that Foote & Co vehicles were undergoing COF inspections every three months rather than six months which is the default requirement.
[18] Later that same day, the same enforcement officer visited Foote & Co’s premises and noted that employment agreements in respect of the drivers recorded the employer as Foote Trucks. Mr West confirmed that he did not hold an account with Whakatane District Council for waste disposal and that he was using Foote & Co’s account. When asked what had changed in Foote & Co’s business since Mr West had
taken charge, Mr West replied that only the goods and services licence had changed, and the rest was a “work in progress”. Mr Foote confirmed that many of the day-to- day business arrangements remained with him. Mr Foote did not receive payslips or invoices from Mr West. Mr West was using Foote & Co’s bank account. Mr West was not at that time able to open his own bank account to operate the business because he needed a New Zealand business number to do so. Foote & Co paid road user charges and vehicle registration fees. Mr West did not have his own GST number and was waiting for his accountant to assist him to obtain one.
[19] The Director’s position is that whilst some employment agreements and lease agreements were provided, it was clear from a review of Foote & Co’s bank statements that Foote & Co were still operating a transport service, paying the drivers and receiving the revenue from work.
[20] The Director says Mr Foote remained the person operating the service in all but name and this gave rise to serious concerns about ongoing risk to public safety.
[21] The Director says a fleet audit completed in October 2024 resulted in four of the six vehicles presented being ordered off the road. Three were issued pink stickers and one a green sticker. The results were of particular concern given that the Foote & Co fleet was subject to a three-month COF frequency, and this had not proved effective in maintaining the roadworthiness of the fleet.
[22] On 29 October 2024 a further audit notice was issued, and an enforcement officer attended a meeting with Mr West.
[23] On 6 November 2024, the Director issued a proposal to revoke Mr West’s TSL on the basis that Mr West knowingly allowed Foote & Co to use his TSL to operate a transport service. The proposal further outlined the Director’s view that Mr West was aware that Foote and Co’s TSL had been revoked because of safety concerns and, as a result of Mr West’s actions, Foote & Co and Mr Foote were able to mask the true operator of the transport service at roadside inspections and therefore avoid enforcement action.
[24] The Director does not accept that Mr West took control of Foote & Co goods service. Mr West says that he took control but simply did not know how to properly structure the legal arrangements. The Director does not accept that assertion and says that it is inconsistent with the findings of the investigation of Mr West as set out in the affidavit of Mr Rossiter who is the Manager Compliance (Central North Island), Safer Commercial Transport and who made the decision to revoke Mr West’s TSL.
[25]In particular, Mr Rossiter stated that:
(a)Mr West had not produced any employment agreement recording his position as transport manager. Even if the arrangement was voluntary, the Director would have expected there to have been a contractual arrangement recording the position.
(b)The Director’s investigation showed that the goods service continued to be operated through Foote & Co, of which Mr West is not a director. Operating expenses continued to be paid entirely through, and revenue from waste disposal was paid entirely into, Foote & Co’s bank account. Knowing that and given that Mr West knew that Foote & Co’s goods service licence had been revoked, the Director considers that Mr West would have readily understood that Foote & Co should not be involved in the operation of the goods service.
(c)NZTA had, in July 2024, told Mr West that a TSL was not transferrable, and instructed him to take independent legal advice on how to lawfully operate a goods service using Foote & Co's vehicles and drivers. Despite that instruction, Mr West had made no real attempt to structure his arrangements to make clear that Mr West, rather than Foote & Co or Mr Foote, was the operator of the relevant goods service. While employment agreements were drawn up between each driver and “Noel West trading as Foote Trucks”, some of those agreements were recorded as being signed on the day that they were produced to NZTA in October 2024 (or, in one case, even a future date).
(d)As late as 18 October 2024, Mr West admitted to NZTA staff that the only thing that had changed since Mr West had been “in charge” was the goods service licence, and that “everything else was a work in progress”. At the 18 October 2024 meeting, Mr West also immediately handed the list of vehicles given to him to Mr Foote, and showed very little understanding of what vehicles were being operated under his goods service licence.
(e)Mr West was informed by NZTA staff in July 2024 that amongst other things NZTA was concerned about the standard of vehicles that Foote & Co were operating and that a change of operators to Mr West would not necessarily alleviate those concerns particularly because Mr Foote was still responsible for the maintenance and repair of the vehicles. Despite this, Mr West decided to prioritise a fishing trip over the fleet audit on 19 October 2024. If Mr West had taken on control of the relevant goods service, I would have expected that Mr West would have taken an interest in the audit and its outcomes.
(f)Mr West had made no effort to respond to the October section 198 audit notice. If Mr West had taken on control of the relevant goods service, the Director would have expected that Mr West would have taken some initiative to respond to the notice.
(g)NZTA had given Mr West the opportunity to make an application for Foote Trucks to obtain a goods service licence, and to provide a statutory declaration to the effect that he would be the person in control of Foote Trucks’ goods service. Mr West did not take up that opportunity before the Director made his decision.
[26] Mr West says that Mr Rossiter failed to understand the nature of the relationship between himself and Foote & Co.
[27] Mr West says that Foote & Co’s business has distinct areas of operation and he is involved only in the transport aspect of the operation. Foote & Co supplies large
skip bins to business such as supermarkets, hospitals and timber mills. Once full the skip bins get returned Foote & Co’s site in Kawerau where the waste is then separated into different categories. Anything useful is on sold. Anything left over is taken to the local transfer station.
[28] Foote & Co owns and operates a range of heavy machinery for the purpose of dealing with the waste disposal work. It employs staff to separate the waste. The site where the waste disposal work is carried out is leased by Foote & Co from a local landlord.
[29] When Foote & Co had its own TSL, the company also carried out the transportation side of this work. That consisted of the transportation of the skip bins to and from the customers, and the transportation of waste to the transfer station.
[30] Since July 2024 Mr West says he has been undertaking the transportation work that Foote & Co used to carry out although he accepts that he may have got the legal structure of things wrong at the beginning.
[31] Mr West says that he has not taken over Foote & Co’s entire waste disposal business, only the transport side. Foote & Co still supply their own bins to customers, receives the waste, separates it, sells the useful waste and arranges for the disposal of the remainder. Foote & Co continues to carry on its business and Mr Foote runs all matters relating to that. Only the transport arm now sits with Mr West. Mr West says he worked very closely with Mr Foote because they were both operating out of the same site.
[32] Mr West says that Mr Rossiter has jumped to the worst possible conclusion about him and his motivations without actually listening to explanations.
[33] Mr West firmly refutes the allegation that the vehicles operating under his TSL are unsafe. He says that the audit carried out on 19 October 2025 when six out of six vehicles failed the inspection was not something that he disregarded at all. All six vehicles were re-inspected by Vehicle Testing New Zealand Ltd the next day. In the case of all of them, not a single defect was identified. Mr West says the NZTA “either
made up defects or massively exaggerated how serious those defects were”. All six vehicles were back on the road the following Monday.
[34] Mr West says that he takes the issue of maintenance seriously and has employed a qualified diesel mechanic who works Tuesday, Wednesday and Thursday every week. Mr West says he has adopted a maintenance software system called MaintainX which creates, assigns and tracks work orders for vehicle repairs and maintenance. Mr West receives real time updates allowing him to organise quick response to maintenance issues. Maintenance is scheduled based on time, mileage, usage and manufacturers recommended maintenance regime.
[35] Mr West says that the fact the trucks are on a three-month COF inspection should give the Court some comfort that defects will not go unnoticed for long periods of time. The vehicles Mr West operates receive twice the amount of scrutiny as most other operators. Mr West says the allegations of unsafe vehicles are very much overstated. Mr West says that he obtained his TSL in 1984 and has never had any issue with authorities in that time until these recent issues relating to his work with Foote & Co. He has never been convicted of any criminal offence and says he is a law-abiding citizen. He finds the allegation that he is trying to deceive the NZTA to be offensive and says it is not the case.
[36] Mr West agrees that the initial position was that his TSL would be used to operate the Foote & Co fleet for a short period of time until Mr Foote was able to challenge the revocation of his own TSL. Events overtook that plan because Mr Foote abandoned his appeal.
[37] Mr West says that he used handwritten TSL labels on the trucks he was operating for a short period of time because he did not have sufficient printed TSL labels. He challenges factual assertions including a suggestion that he told an enforcement officer that he did not know Mr Foote. He said that is completely untrue; he has known Mr Foote for decades and Mr Foote is a very good friend of his. Mr West says that Kawerau is a small place and everyone in Kawerau knows that he knows Mr Foote.
Discussion
Preliminary issue - Is Mr West’s TSL deemed surrendered?
[38] The Director raises an issue as to whether Mr West’s TSL is in fact deemed to have been surrendered as he has not operated a transport service since at least 2018. This was not the basis of the decision under review, but the Director says that, if Mr West does not in fact hold a TSL, the issue to be determined is moot and interim relief is not necessary to preserve Mr West’s position.
[39] The Director says that the evidence before the Court indicates that Mr West’s TSL was deemed to have been surrendered under s 30O before the Director issued the notice of revocation now complained of.
[40]Section 30O provides:
30O Term of transport service licence
(1)A transport service licence takes effect on the day it is granted and continues in force until it is—
(a) surrendered under subsection (2); or
(b) deemed to be surrendered under subsection (3); or
(c) revoked under section 30S.
(2)The holder of a transport service licence may surrender the transport service licence at any time by written notice to the Agency or the Director.
(3)If no vehicle has been operated under a transport service licence for a period of 2 years, the licence is deemed to have been surrendered.
(4)No transport service licence for a transport service operated by any of the following may be suspended or revoked for any reason:
(a) the New Zealand Defence Force; or
(b) Fire and Emergency New Zealand; or
(c) the Police; or
(d) any emergency service organisation approved by the Director for the purposes of this section.
[41] The Director says that Mr West’s evidence indicates at least a three-year period between 2021 and July 2024 when he was not working and not operating vehicles under his TSL.
[42] NZTA has been unable to locate any record of TSL labels being issued under Mr West’s TSL between 2008 and July 2024 or any vehicle being presented for a COF under Mr West’s TSL between 2012 and 2024. There have been no roadside inspections involving a vehicle carrying a TSL label with Mr West’s TSL number between 2010 and July 2024. There is no other information in NZTA’s TSL operator review to suggest that vehicles had been operated in the two years prior to July 2024.
[43] Mr West says there has never been a period of two years or more when he has not undertaken some transport service work. In 2018 he stopped operating a Merlo crane that he owned. He used his TSL to transport the crane around the north island prior to 2018. After he finished the Merlo work, he continued to offer trucking services to various customers and regularly hired trucks to move furniture, pick up hay or shift livestock.
[44] The Director submits that this issue must be determined at the interim relief stage because before the Court can exercise its discretion to grant interim relief, Mr West must first establish a position to preserve.
[45]Transport service operator is defined in the Land Transport Act as follows:2
Transport service operator —
(a)means a person who carries on a transport service; and
(b)includes, in relation to a small passenger service, a facilitator; but
(c)does not include any other person wo is a driver in the transport service or who otherwise assists in the transport service.
[46]Transport service vehicle means:3
... any goods service, passenger service vehicle, rental service vehicle, or vehicle recovery service vehicle; but does not include-
2 Section 2.
3 Section 2.
(a)a rail vehicle under the Railways Act 2005; or
(b)a vehicle running on self-laying tracks or rollers; or
(c)a vehicle that operates solely on or in areas to which the public does not have access as of right (whether or not that vehicle Is used on a road in connection with that vehicle’s inspection, servicing, or repair, or for the purposes of a practical driving test required under any enactment); or
(d)a vehicle used as a place of abode to the extent that is it not used in a rental service; or
(e)a vehicle lusted as a farm vehicle in Part 1 of the Schedule of the Transit New Zealand (Appointment and Refund of Excise Duty) Regulations 1998 or in any provisions made in substitution for that schedule; or
(f)a tractor (being a motor vehicle designed principally for traction at speeds not exceeding 50 km per hour); or
(g)a forklift (being a motor vehicle designed principally for lifting and stacking goods by means of 1 or more forks, tines, platens or clamps); or
(h)a hearse; or
(i)a traction engine
[47]Transport service is defined as follows:4
transport service—
(a)means any goods service, passenger service, rental service, or vehicle recovery service; but
(b)does not include—
(i)licensed rail participants under the Railways Act 2005; and
(ii)any service specified as an exempt transport service in the regulations or the rules
[48] A person who rents a vehicle for the purpose of providing a transport service operates a transport service whether or not they charge for that service.
[49] None of the matters raised by the Director would enable me to find that Mr West was not truthful when he said that he had provided transport services such as
4 Section 2.
moving livestock, transporting hay or moving furniture. Sporadic and occasional use of the TSL would suffice.
[50] As I indicated at the hearing, the evidential position is such that the only finding I could make at this stage would be in Mr West’s favour.
[51] The Director says if the Court finds Mr West’s goods service licence is not deemed to be surrendered, the purpose of interim orders under s 15 is to preserve the applicant’s position as it was immediately before the decision under challenge takes effect. The Director says that granting the interim orders would secure Foote & Co’s position but not Mr West’s because the evidence indicates that control of the service did not shift from Foote & Co and Mr Foote to Mr West before the date of revocation. The Director says taking on genuine control of a goods service (as opposed to merely participating in, or assisting in, the goods service) means taking on responsibility for the compliance of the service and its drivers.
[52] In any event, the Director submits that the Court should exercise its discretion to refuse the interim order sought.
Jurisdiction for interim orders
[53]Section 15 of the Judicial Review Procedure Act 2016 provides as follows:
15 Interim orders
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2)The interim orders referred to in subsection (1) are interim orders— prohibiting a respondent from taking any further action that is, or
would be, consequential on the exercise of the statutory power:
prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
(3)However if the Crown is a respondent,—
the court may not make an order against the Crown under subsection (2)(a) or (b); but
the court may, instead, make an interim order—
declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.
(4)An order under subsection (2) or (3) may—
be made subject to such terms and conditions as the court thinks fit; and
be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[54] As was recently set out by Venning J in Rams Logistics Ltd v Director of Land Transport, the principles to apply in an application such as this are settled.5 There is a two-stage test for interim relief as set out in Carlton and United Breweries Ltd v Ministry of Customs:6
In general, the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief—which must mean reasonably necessary. If that condition is satisfied, as the Chief Justice was entitled to find that it was here, the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief.
[55]In Longville v New Zealand Transport Agency Wylie J said:7
The purpose of s 15 is to give protection on an interim basis to an applicant who may otherwise be unfairly prejudiced by the delays involved in obtaining a final determination of his or her application for review. There must be a “necessity”,as contrasted with a simple desire, to preserve a position. It is not appropriate to add any gloss to the word “necessary” or to attempt to define it in other words. It is clear from the section that the Court has a wide residual discretion to grant interim relief even if an order is necessary to preserve the position of an applicant.
5 Rams Logistics Ltd v Director of Land Transport [2025] NZHC 326.
6 Carlton and United Breweries Ltd v Ministry of Customs [1986] 1 NZLR 423 at 430 (CA).
7 Longville v New Zealand Transport Agency [2019] NZHC 1445 at [13].
(footnotes omitted)
[56] The Director says that the statutory regime tells against granting interim relief. The Land Transport Act provides for an appeal against the decision of the Director but s 106(3) provides:
Every decision of the Director appealed against under this section continues in force pending the determination of the appeal, and no person is excused from complying with any of the provisions of this Act on the ground that any appeal is pending.
[57] The Director submits that the current application is an attempt to avoid the operation of s 106(3).
[58] The Director relies on the decision of Katz J in Foreman Automotive Ltd v New Zealand Transport Agency where it was said a significant factor against granting interim relief is the statutory regime where parliament has struck the balance in favour of public safety in “ordinary” cases.8 Parliament has allowed for an appeal but mandated that once a decision is made it is to take effect unless overturned on appeal. Mr West has exercised a general right of appeal to the District Court. The Director says that the merits or otherwise of the parties’ positions including the pleaded reviewable errors in these proceedings can be fully ventilated in the District Court. The decision should however take effect pending the appeal as provided for in the Land Transport Act.
[59] In Director of Civil Aviation v Air National Corporate Ltd the Court of Appeal addressed a materially identical provision in the Civil Aviation Act 1990.9 It was observed that a grant of interim relief under the judicial review proceedings ran the risk of undermining the effect of the “no stay” provisions.10
[60]This was discussed by Venning J in Rams Logistics Ltd:11
However, I do not read the decision of Director of Civil Aviation v Air National Corporate Ltd as going quite that far. The Court of Appeal accepted that the
8 Foreman Automotive Ltd v New Zealand Transport Agency [2013] NZHC 1167, [2014] NZAR 260 at [52]–[53].
9 Director of Civil Aviation v Air National Corporate Ltd [2011] NZCA 3, [2011] NZAR 152.
10 At [30].
11 Rams Logistics Ltd v Director of Land Transport, above n 5, at [25].
Court has jurisdiction to make interim orders. The Court ultimately accepted that the “no stay” provision associated with appeal rights is a relevant consideration to the exercise of the discretion if an application is made for interim orders. I approach the matter on that basis. Further, in this case with the substantive hearing on 18 March 2025, any stay will be limited in effect and will not frustrate the appeal process in the District Court. I return to the focus of the application which must be the merits of the proposed grounds of review, at least to the extent they can be considered at this interim stage.
[61] In Rams Logistics Ltd, a significant factor favouring relief was the fact that the substantive hearing was only three weeks away. That is not the situation in the present case. No date has been set for the substantive hearing.
[62] Mr West raised an argument also raised in Rams Logistic Ltd, namely that when assessing fitness and propriety, any factors NZTA proposes to take into account must be related to either the interests of public safety or the protection of the public from serious or organised criminal activity.
[63] Section 30C(1) of the Land Transport Act mandates that the Director consider matters relevant to the interests of public safety or the protection of the public from serious or organised criminal activity when assessing fitness and propriety. In the Rams Logistics Ltd case, it was argued that Rams Logistics Ltd’s RUC debt did not fall into either category. In this case it is argued that a concern about deceptive behaviour also does not fall into either category. Mr West says that other more general considerations under s 30C(2) such as criminal history, transport related offences, behavioural issues, public complaints and fine payment history are subordinate and only engaged if the threshold in s 30C(1) is met.
[64] This argument was considered and rejected by Gordon J in MAP Transport Ltd v Director of Land Transport.12 In that case, it was argued that a RUC debt is a civil debt, and it is improper to use a regulatory regime under which the paramount consideration is public safety to enforce a civil debt. Gordon J rejected that argument saying that s 30C(2)(b) provides that the Director may take into account:13
… “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
12 MAP Transport v Director of Land Transport [2024] NZHC 2253.
13 At [73].
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”.
[65] In Rams Logistics Ltd Venning J also rejected this argument saying that, apart from the comprehensive reasoning of Gordon J in MAP, the wording of the sections themselves do not support the argument. The subsections in s 30C are readily reconcilable. The considerations in s 30(1) are mandatory but the Director may also take into account the considerations in s 30C(2).14
[66] I respectfully adopt the reasoning of both Gordon and Venning JJ. I do not accept that the considerations are limited in the way Mr West argues for. The additional considerations simply set out the matters that may be relevant to the two fundamental issues of safety or protection of the public from serious or organised criminal activity. The argument is even weaker in this case because it is obvious that a willingness to deceive the Director to assist an unsafe operator to continue to operate would be a matter relevant to public safety.
[67] Whether interim relief is justified depends on the merits of the underlying judicial review application. The Director says the merits of Mr West’s pleaded judicial review claims are weak including alleged reviewable errors that were recently rejected in MAP Transport v Director of Land Transport.15
[68] Mr West says interim relief is necessary to preserve his position and that of his employees. He says that four drivers and a part time mechanic will lose their jobs if the interim orders are not made.
[69] At the substantive judicial review hearing Mr West will argue that the decision to revoke the TSL was unlawful, unreasonable and procedurally flawed. A key feature of his case will be a rebuttal of the allegation that he engaged in deception. It will be argued that there was never any evidence of deception — as opposed to Mr West simply making mistakes.
14 Rams Logistics Ltd v Director of Land Transport, above n 5, at [32].
15 MAP Transport v Director of Land Transport, above n 12, at [41]–[42].
[70] Mr West says that the Director must only use his power of revocation as a last resort and that serious penalties like revocation must be reserved for truly serious cases. The Director had other powers available such as suspending Mr West’s TSL or imposing conditions on its use. Those powers were not used. It will be argued that the Director’s immediate use of revocation was improper and disproportionate. Mr West will argue that the Director misused his revocation power for a punitive purpose rather than its intended regulatory purpose of ensuring safety and compliance.
[71] Mr West will also argue that the Director misapplied the fit and proper person test. Mr West argues that he never posed a serious safety risk to the public and that virtually all of the statutory criteria apply in his favour.
[72] Mr West deposes as to his genuine belief that his TSL could apply if he managed Foote & Co’s operations. Mr West maintains that he was clearly in a position of control applying the test in Moffat v New Zealand Transport Agency.16
[73] In Moffatt v New Zealand Transport Agency, Whata J said that the implication of the licensing regime is that:17
(a)the fitness and accountability of the licence holder is paramount;
(b)the licence holder will maintain control and therefore be responsible for the transport service; and
(c)the mother of control can be direct or indirect, by shareholding or by holding any position of influence in the management structure.
[74] Interim relief has been granted in other cases despite safety concerns forming the basis of the revocation decision. In the case of Stan Semenoff Logging Ltd v NZTA, an interim order was made despite such concerns.18 Stan Semenoff Logging Ltd was a logging haulage company with widespread logbook and work time issues. On the issue of public safety, Whata J considered NZTA’s concerns were justified but on
16 Moffatt v New Zealand Transport Agency, HC Dunedin, CIV-2010-409-2397, 24 June 2011.
17 At [46].
18 Stan Semenoff Logging Ltd v New Zealand Transport Agency [2019] NZHC 1133.
balance accepted an interim order preserving Stan Semenoff Logging Ltd’s position was appropriate subject to strict conditions. Mr West submits that his position for interim relief is stronger.
[75] Mr West also refers to the case of Boss Transport Ltd v NZTA where a TSL was revoked because, among other things, the company had allegedly been operating vehicles that were not up to COF standard, its drivers were breaching worktime and logbook rules and the company had incurred 179 traffic infringements.19 Despite these issues Cull J granted an interim order reinstating Boss Transport Ltd’s TSL. In doing so, Cull J emphasised that serious penalties like revocation must be reserved for only serious cases.20 In that case, without relief Boss Transport Ltd would be forced to close its business and cease operating which would put employees out of work.
[76] It is submitted that similar serious consequences would follow in the present case if the interim orders were not maintained.
[77] On the evidence before the Court, I accept that Mr West is currently operating the transport arm of the business carried on by Foote & Co. Whether he was at the time of the revocation decision and whether that decision was reasonable and proportionate will be the focus of the substantive hearing.
[78] Unless an interim order is made granting the relief sought, Mr West will need to cease operating the transport arm of Foote & Co. That will have the follow-on effect that Foote & Co will likely have to cease operating its business. As a consequence, staff will be unemployed, and the clients of Foote & Co will need to find an alternative service provider. Those clients include Whakatane Hospital and the supermarket in Kawerau. The prospect of Foote & Co and Mr West regaining those clients if the Judicial Review succeeds is uncertain. There will undoubtedly be disruption to third parties including the hospital and potentially serious inconvenience to supermarkets and other clients.
19 Boss Transport Ltd v New Zealand Transport Agency [2019] NZHC 522.
20 At [71].
[79] The substantive application will turn on what is required for effective control of a transport service operation and whether Mr West in fact failed to operate the transport service while deliberately deceiving the NZTA in order to assist Foote & Co to evade the oversight of the NZTA regulatory regime. A person who is willing to do that may well be regarded as not a fit and proper person because of the implied lack of concern for the safety issues that led to the revocation of Mr Foote’s TSL in the first place. However, whether or not that is the case is highly disputed and I am not in a position at this stage to make a finding. The alternative scenario is that Mr West is a responsible and experienced transport service operator who was genuinely motivated to assist Mr Foote to operate his waste disposal business by ensuring that the transport side of the business operated legally and safely.
[80] This is not a case where I can say that Mr West has no prospects of success in the substantive judicial review. It will very much depend upon the Judge’s assessment of the evidence at the hearing and the credibility of Mr West. There is also an issue as to the level of response being the revocation of Mr West’s TSL without the intermediate step of suspension or conditions. Depending on credibility findings, Mr West has a reasonably arguable case that the revocation decision was unreasonable. His case is not frivolous or vexatious. There is certainly an issue as to whether cancellation was overly punitive in the circumstances.
[81] If interim relief is granted, the Director seeks conditions designed to ensure that Mr West is operating the transport service. Some of those conditions are resisted by Mr West on the basis that they would impede the day-to-day operation of the business.
[82] The balance falls in favour of granting relief because Mr West himself has never come to the attention of the authorities for safety concerns in his 40-year career operating transport services. If interim relief is not granted, employees will lose their jobs and third parties including the hospital and supermarket will be negatively impacted. The vehicles involved are subject to three monthly COF inspections and there is no evidence that they cannot operate safely in the interim period so long as Mr West has actual responsibility for the operation.
Result
[83]I grant the interim relief sought subject to the following conditions:
(h)Mr West must expeditiously prosecute the judicial review application.
(i)The goods service operated under Mr West’s TSL (transport service goods licence number 13922) must operate vehicles that are owned by, leased to or hired by Mr West.
(j)Only drivers who are directly employed by Mr West and have signed a written employment agreement with Mr West may drive in the goods service operated under Mr West’s TSL. The only exception is a casual driver hired by Mr West to cover for an employee who is unable to work due to illness.
(k)All vehicles operated in the goods service under Mr West’s TSL must comply with vehicle licensing requirements and remain current on their road user charges.
(l)All vehicles operated in the goods service under Mr West’s TSL must be maintained by a suitably qualified mechanic other than Mr Foote.
(m)All vehicles operated in the goods service under Mr West’s TSL must be maintained in a roadworthy condition and in compliance with legislative and regulatory requirements.
(n)The day-to-day operation of the goods service being the transport of bins and waste to and from Foote & Co’s Kawarau site may not be delegated to Mr Foote.
Costs
[84]Costs are reserved to follow the outcome of the substantive hearing.
Wilkinson-Smith J
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