BARTLE GROUP LIMITED v NEW ZEALAND TRANSPORT AGENCY & ANOR [2020] NZHC 35 [29 January 2020]

BARTLE GROUP LIMITED v NEW ZEALAND TRANSPORT AGENCY & ANOR [2020] NZHC 35[29 January 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-378[2020] NZHC 35UNDER High Court Rules 2016, Part 18BETWEEN BARTLE GROUP LIMITEDPlaintiffAND NEW ZEALAND TRANSPORT AGENCYDefendantNEW ZEALAND POLICEIntervenerHearing: 11 November 2019Counsel: P A Morten for PlaintiffK R Muirhead for DefendantT Mijatov and J C Toebes for IntervenerJudgment: 29 January 2020JUDGMENT OF CHURCHMAN JIntroduction[1] Heavy vehicles play an important role in our transport system, with 90 per centof the total freight tonnage in New Zealand being carried on the road network.1 Whilesuch vehicles undoubtedly make a significant contribution to New Zealand'seconomy, they also feature disproportionately in our road toll. Despite making up onlyapproximately seven per cent of all road travel taken, between 2010-2014, 18 per centof road fatalities involved heavy vehicles, although it should be noted that truck driverswere only responsible for 35 per cent of these fatalities.21 Ministry of Transport Review of the Vehicle Dimension & Mass (VDAM) Rule: DiscussionDocument (December 2015) at 6.2 At 6.[2] In order to ensure that the heavy vehicle fleet is operated both efficiently andsafely, while recognising the constraints imposed by the road network, theLand Transport Rule: Vehicle Dimensions and Mass 2016 (the VDAM Rule) wasimplemented which created limits to the permitted configurations, dimensions andmass of vehicles, with particular emphasis placed on large combination vehicles.3[3] Under the VDAM Rule, a towing vehicle with a full trailer, including load, isgenerally not allowed to exceed a total combined length of 22 metres,4 and a mass of44,000 kilograms.5[4] The plaintiff, Bartle Group Limited trading as ACE Towing & Heavy Haulage(Ace), provides services relating to specialised recovery of heavy motor vehicles,operating vehicles equipped with specialist heavy recovery equipment designed andengineered to carry out the salvage and towing of heavy motor vehicles ranging from3.5 tonnes up to 62 tonnes. When one of its specialised heavy recovery vehicles istowing a heavy motor vehicle, the total gross weight can be up to 70 tonnes or more,and can measure, in overall length, in excess of 37 metres. This would clearly exceedby quite a margin the general dimensions and mass limits permitted in theVDAM Rule.[5] However, heavy vehicle recovery service (HVRS) vehicle operators areexempt from these requirements, with cl 3.14(11) of the VDAM Rule providing forthe towing of disabled heavy motor vehicles to the "nearest safe area":3.14(11) A heavy vehicle recovery service vehicle may tow a heavymotor vehicle that has become disabled while on a roadway,and any attached trailers, to the nearest safe area, takingaccount of traffic volume, vehicle load, and the ability toundertake repair safely at the roadside, off the roadway (thatis accessible without contravening any bridge weight limitincluding posted limits) and does not have to-(a) comply with the dimension requirements inSchedule 2; or3 Land Transport Rule: Vehicle Dimensions and Mass 2016, Objective of the Rule.4 Schedule 2.5 Schedule 3, pt 2, table 2.1.(b) comply with the mass ratio of towed and towingvehicles in 4.5; or(c) be operated under an overdimension permit.[6] Ace, the New Zealand Transport Agency (NZTA) and the New Zealand Policecannot agree on the interpretation and application of cl 3.14(11) of the VDAM Rule.As its interpretation and application is said to be a key issue arising daily in Ace'soperations, with major health and safety implications, not only for Ace, but for HVRSvehicle operators nationwide, Ace seeks a declaration, pursuant to the Court's inherentjurisdiction, in accordance with its understanding that cl 3.14(11): in its correct interpretation and application, authorises a heavy vehiclerecovery service vehicle to tow a heavy motor vehicle that has becomedisabled while on a roadway, and any attached trailers, as a single unit, to suchlocation as the salvage operator has determined, taking into account allproperly relevant factors, and in a way that enables the obstruction on thehighway to be removed and the repair of the disabled vehicle to be undertakenwithin the highest level of protection against harm which can be achieved.[7] Ace also seeks costs of and incidental to the proceeding.[8] Both the defendant, NZTA, and the Police, appearing as intervener, oppose thegranting of a declaration, with NZTA submitting that the Court does not havejurisdiction to hear and determine Ace's claim.Legislative framework[9] The VDAM Rule is made by the Minister of Transport (the Minister) and, so,is subordinate legislation. The Minister's implementation certificate states that it iscreated:PURSUANT to sections 152, 153(b) and (c), 155(a), 157(a), 159, and 160(4)of the Land Transport Act 1998, and after having regard to the criteriaspecified in section 164(2) of that Act.[10] Section 152 of the Land Transport Act 1998 (the Act) empowers the Ministerto make "ordinary rules" for a variety of purposes, including "assisting land transportsafety and security".66 Land Transport Act 1998, s 152(b).[11] As to the categories of ordinary rules concerning road user behaviour thatmight be made, s 153(b) provides that such rules may regulate traffic of all classes andprohibit a class of traffic, either absolutely or conditionally, on particular roads, whiles 153(c) provides that they may set out standards and requirements concerning the useof vehicle safety equipment by drivers and passengers.[12] In terms of rules concerning vehicles, s 155(a) relevantly provides that ordinaryrules may: set out standards and requirements concerning vehicles, including theirconstruction, mass and dimensions, emissions, environmental requirements,loading requirements, identification, repair, maintenance, modification,inspection, and fuel systems [13] Section 157(a) provides that, in making rules concerning roads, ordinary rulesmay: regulate the use of roads, and empower road controlling authorities tocontrol, restrict, and prohibit traffic, and to close roads in specifiedcircumstances or on specified occasions, in accordance with the rules [14] Section 159 provides that the ordinary rules may require land transportdocuments to be held in relation to different components of regulated transportactivities.[15] Other provisions concerning ordinary rules are set out in s 160, with subs (4)providing:An ordinary rule may—(a) require or provide for a matter to be determined, undertaken, orapproved by the Agency or any other person, and empower theAgency or any other person to impose requirements or conditions asto the performance of activities:(b) specify standards, procedures, and requirements for the purposes ofthe rules:(c) impose conditions, restrictions, and prohibitions:(d) specify the definitions, abbreviations, and units of measurement toapply within the land transport system:(e) prescribe, or provide for the approval of, forms, documents, andrecords for the purposes of the rules:(f) make transitional and savings provisions for the purposes ofimplementing any rule; and for the purposes of determining the expirydate of licences under section 23(4).[16] Section 164(2) sets out the matters to which the Minister must have regardwhen making or recommending rules:The Minister in making or recommending a rule, or the Agency in making arule, must have regard to, and give such weight as the Minister or the Agency(as the case may be) considers appropriate in each case to, the following:(a) the level of risk existing to land transport safety in each proposedactivity or service:(b) the nature of the particular activity or service for which the rule isbeing established:(c) the level of risk existing to land transport safety in New Zealand ingeneral:(d) the need to maintain and improve land transport safety and security,including (but not limited to) personal security:(da) the appropriate management of infrastructure, including (but notlimited to)—(i) the impact of vehicles on infrastructure; and(ii) whether the costs of the use of the infrastructure are greaterthan the economic value generated by its use:(e) whether the proposed rule—(i) assists economic development:(ii) improves access and mobility:(iii) protects and promotes public health:(iv) ensures environmental sustainability:(ea) the costs of implementing measures for which the rule is beingproposed:(eb) New Zealand's international obligations concerning land transportsafety:(f) the international circumstances in respect of land transport safety:(g) such other matters as the Minister (in the case of ordinary rules) or theAgency (in the case of emergency rules) considers appropriate in thecircumstances.Interpretation of cl 3.14(11) of the VDAM Rule[17] The meaning of cl 3.14(11) of the VDAM Rule must be ascertained from itstext and in light of its purpose.7 In determining its purpose, the Court must have regardto the legislative context, as set out above. The social, commercial, or other objectiveof the enactment may also be relevant.8[18] The objective of the VDAM Rule is set out as follows:9Land Transport Rule: Vehicle Dimensions and Mass 2016 (the Rule) specifiesrequirements for dimension and mass limits for vehicles operating onNew Zealand roads. It also includes some provisions that relate to theperformance and operation of motor vehicles.This Rule revokes and replaces Land Transport Rule: Vehicle Dimensions andMass 2002 (the 2002 Rule). It applies to all motor vehicles and cycles.The Rule is designed to create a reasonable balance between the efficientoperation of the heavy motor vehicle fleet, within the constraints imposed bythe road network, and ensuring that heavy motor vehicles are operated safely.It does this by creating limits to the permitted configurations, dimensions andmass of vehicles, with particular emphasis on large combination vehicles.The Rule clarifies and rationalises the existing requirements for vehicledimension and mass limits. It also includes some limited increases in axle andgross mass limits from the limits in the 2002 Rule.The Rule continues the distinction between dimension and mass limits forgeneral access and the allowance to operate a vehicle with higher mass or withlarger dimensions if a permit is obtained.The Rule does not prescribe every situation; every driver and operator has aresponsibility to exercise good judgement. This is consistent with the generalresponsibilities stated in sections 6, 7, 8 and 9 of the Land Transport Act 1998(which relate to vehicle safety, driver responsibility, and the need to secureloads).7 Interpretation Act 1999, s 5.8 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767 at [22].9 Land Transport Rule: Vehicle Dimensions and Mass 2016, Objective of the Rule.The issue of a permit under this Rule does not displace those generalresponsibilities. The Rule also does not displace a restriction imposed byother legislation. For example, general access limits do not allow a heavyvehicle to cross a bridge with a posted limit (fixed by a road controllingauthority) that is lower than the vehicle's actual gross mass.[19] With one exception, the technical terms used in the VDAM Rule are definedin the Act or the Regulations. The exception is the reference to the word "safe" asused in "the nearest safe area".[20] Ace argues that the work which may be undertaken pursuant to cl 3.14(11) iswork carried out in the course of the conduct of a business, and accordingly is at aplace of work for those involved. Therefore, Ace submits that the Health and Safetyat Work Act 2015 (HSW Act) applies. It is noted that the Health and Safety inEmployment Act 1992 included the following definition of the meaning of "safe":10safe,—(a) in relation to a person, means not exposed to any hazards; and(b) in every other case, means free from hazards;—[21] This definition is not repeated in the HSW Act, which applies a purposive testto compliance, relevantly providing that its purpose is as follows:3 Purpose(1) The main purpose of this Act is to provide for a balanced frameworkto secure the health and safety of workers and workplaces by—(a) protecting workers and other persons against harm to theirhealth, safety, and welfare by eliminating or minimising risksarising from work or from prescribed high-risk plant; and(2) In furthering subsection (1)(a), regard must be had to the principlethat workers and other persons should be given the highest level ofprotection against harm to their health, safety, and welfare from10 Health and Safety in Employment Act 1992, s 2.hazards and risks arising from work or from specified types of plantas is reasonably practicable.[22] Ace submits that, taking into account the objectives of the VDAM Rule andthe purpose of the HSW Act, the meaning of cl 3.14(11) can be ascertained. It arguesthat the phrase "off the roadway" means the nearest safe area off the roadway and doesnot mean a repair "at the roadside, off the roadway", relying on the VDAM Rule'sdefinitions of "roadway" as meaning "that portion of the road used or reasonablyusable for the time being for vehicular traffic in general"11 and of "road" asincluding:12(a) a street; and(b) a motorway; and(c) a beach; and(d) a place to which the public have access, whether as of right or not;and(e) all bridges, culverts, ferries, and fords forming part of a road or streetor motorway, or a place referred to in paragraph (d); and(f) all sites at which vehicles may be weighed for the purposes of this Actor any other enactment[23] It is contended that, once these definitions are put together, the nearest safearea off the roadway must be: off that portion of a street, of a motorway, of a beach, of a place to whichthe public have access (as of right or not), of bridges, culverts etc forming partof a road or street or motorway or a place to which the public have access (asof right or not), and of any site where vehicles may be weighed, that is usedor reasonably usable for the time being for vehicular traffic in general.[24] There appears to be no dispute but that it is plain from the VDAM Rule thatthe person or company undertaking the tow must therefore determine the "nearest safearea" destination, off the roadway, for the tow, having regard to:(a) traffic volume;11 Land Transport Rule: Vehicle Dimensions and Mass 2016, pt 2: definitions.12 This is the meaning given in the Land Transport Act 1998, s 2.(b) vehicle load; and(c) the ability to undertake repair safely at the roadside.[25] However, Ace contends there are other considerations that may arise, namely:(a) whether the area it is proposed to be used "to undertake repair safely"is:(i) one to which entry and use by the vehicle is permitted; and(ii) capable of sustaining the entry and exit of the towing vehicle,the disabled vehicle and accessory trailers involved;(b) whether work operations can be carried out safely in that area to repairthe disabled vehicle/trailers;(c) whether loads which are dangerous or otherwise require specialhandling can be de-vanned in that area in a safe manner;(d) the cause of the disablement and the extent of the repair required;(e) whether, during the period of occupation of the selected "safe area", thevehicles and any load in them will be safe (which includes being safefrom theft, pillage, or any other advantage illegally taken as a result oftheir disablement);(f) whether the towed vehicle can be separated from any attached trailersor, if separated, whether it continues to comply with VDAM permitsissued to the towing vehicle and combination that Ace is salvaging; and(g) whether, taken as a whole, the decision made provides "the highestlevel of protection against harm to [workers and other persons'] health,safety, and welfare from hazards and risks arising from work or fromspecified types of plant as is reasonably practicable", under s 3 of theHSW Act.[26] Ace argues that the identification of a "safe area" is a matter for the judgementof the person or company carrying out the tow. It is said that this must be so as theprimary obligation to achieve and maintain safe operation under the HSW Act falls onthat person; they will be legally accountable for the safety outcome, and mayreasonably take a precautionary (conservative) approach to risk assessment. Any suchdecision would also take into account the specifications of the tow vehicle, includingthe safe working limits for all equipment used and, as the VDAM Rule makes clear,must balance all factors, including any safety issues inherent in towing a disabledheavy motor vehicle and any trailers as a single unit. Ace argues that the option whichmust be selected is that which the decision-maker, acting in good faith, considers tobe the safest.[27] NZTA, however, notes that that cl 3.14(11) provides that the disabled vehiclemust be towed not simply to a safe area, but to the nearest safe area. The importanceof towing a disabled vehicle only to the nearest safe area and not beyond is said to beunderscored by the fact that a HVRS vehicle that is towing a disabled heavy motorvehicle to the nearest safe area has the benefit of being exempt from complying witha number of vehicle mass and dimension restrictions ordinarily imposed. In particular,a HVRS vehicle operator towing a disabled heavy motor vehicle to the nearest safearea:(a) does not need to:(i) comply with overdimension requirements contained inSchedule 2 to the VDAM Rule; or(ii) operate under an overdimension permit; and(b) does not need to comply with tow ratio requirements set out in cl 4.5;and(c) is not bound by particular tow spacing restrictions contained elsewherein cl 3.14, including in relation to:(i) the number of trailers that may be towed; and(ii) the towing of a trailer and a rigid vehicle without power.[28] NZTA further notes that cl 3.14(11) is silent about who is tasked withdetermining the location of the nearest safe area and also does not expressly state whatmust occur once the nearest safe area is reached. Its text, however, indicates thatbeyond the nearest safe area, the dimension requirements in Schedule 2, mass towratios and any overdimension permit requirements will apply. It is submitted that, toavoid contravening those requirements, the disabled vehicle should be adjusted at thenearest safe place to ensure that it complies with all aspects of the VDAM Rule thatapply beyond the nearest safe place, with such adjustment including dividing adisabled combination vehicle and towing each part of the combination separately,devanning (unloading) it, or repairing it.[29] NZTA contends that, while the Act does not refer to "safe areas", it does referto a "place of safety". For example, the Act provides that certain persons must directdrivers on a road to keep the vehicle stopped or to remove the vehicle to a "place ofsafety" approved by an officer and remain stopped there if:(a) a heavy motor vehicle or transport service vehicle is overloaded;13and/or(b) the enforcement officer has good cause to suspect that the load or partof the load on a heavy motor vehicle, or on a vehicle being towed by aheavy motor vehicle, is not properly secured and contained;14 and/or13 Land Transport Act, s 126.14 Section 128.(c) the enforcement officer or a dangerous goods enforcement officer hasgood cause to suspect a breach of rules relating to the carriage ofdangerous goods involving a vehicle;15 and/or(d) a dangerous good enforcement officer has good cause to suspect thatthere has been a breach of the rules in respect of a rail vehicle or driverof a rail vehicle.16[30] In each case, the vehicle is required to remain stopped at a place of safety untilthe potential rules breach or other issue is rectified.17[31] NZTA also points to the definition of "vehicle recovery service" in the Act:18vehicle recovery service—(a) means the towing or carrying on any road of a motor vehicle,irrespective of the size or design of the towing or carrying vehicle,and whether or not the towing or carrying of the vehicle is carried outby a person intending to carry out repairs on the vehicle; but(b) does not include—(iv) the towing of disabled vehicles using a rope or flat tow by—(A) a person employed by, or contracted to, a motoringassociation or insurance company where the towingis limited to removal of the vehicle to a place ofsafety[32] NZTA submits that the use of "place of safety" in the Act supports aninterpretation of cl 3.14(11) that promotes the removal of a hazard only as far asnecessary to ensure that the hazard can be cleared off the roadway.15 Section 129.16 Section 130.17 Sections 126(2), 128(2), 129(2) and 130(2).18 Section 2.[33] While a small number of other enactments contain references to "safe areas",NZTA argues that those enactments are not concerned with land transport and providelittle assistance in interpreting "nearest safe area" in the context of cl 3.14(11).[34] The Police similarly note these provisions in the Act referring to a "place ofsafety", stating that it makes clear the legislative intention that a "place of safety" is aplace to which a vehicle is removed for a short time or distance away while the vehicleis adjusted. It is submitted that it is appropriate that the VDAM Rule, which ispromulgated under the Act, be interpreted consistently with provisions in the parentlegislation relating to similar subject matter.[35] As to the plaintiff's suggestion that the proper interpretation of cl 3.14(11)allows a HVRS vehicle operator to take a decision based on subjective considerationsabout the location of the nearest safe area, NZTA submits that it would be unusual forthe lawmaker to confer a discretion on a regulated party without making expressprovision for that in the language of the clause. In addition, such an interpretation issaid to be potentially problematic because it:(a) does not give due emphasis to the three objective and expressly statedfactors to be taken into account listed in cl 3.14(11); and(b) may mean that cl 3.14(11) could only be enforced where there wasevidence that the operator did not subjectively believe that the locationthey were towing a disabled vehicle to was the nearest safe area, whichwould be difficult to prove.[36] A further criticism by NZTA of the declaration sought by Ace is that it does notacknowledge or emphasise the need for the safe area to be the "nearest" safe area.[37] Finally, in terms of Ace seeking to import a provision of the HSW Act as aconsideration that is relevant to a determination about the location of the nearest safearea under cl 3.14(11), NZTA submits that, while all operators should be mindful oftheir health and safety obligations, it is potentially problematic to graft theseobligations directly into the clause because:(a) there is no indication in the text or purpose of the VDAM Rule that sucha meaning should be adopted;(b) it amounts to re-writing cl 3.14(11) which is properly a question forParliament of for the responsible Minister, not the courts;(c) the HSW Act is part of a different regulatory regime with a differentregulatory purpose;(d) including wording of s 3(2) entails consideration about whether HVRSvehicle operators are "workers" working in "workplaces" whilerecovering heavy vehicles; and(e) in any event, the definition selected by Ace does not contain the fulltext of s 3(2).[38] Similarly, the Police argue that, although both the VDAM Rule and the HSWAct use the word "safe", little if any interpretative assistance is obtained by Ace'sattempt to transplant that meaning from one context into another. As the Court ofAppeal in P v F observed, "reliance on different interpretations of the [same] words in other statutory contexts does not assist".19 The decision then went on to quotefrom an earlier decision of that Court: "[I]t is necessary to consider the context inwhich the expression appears in light of the purposes of the Act as a whole".20[39] NZTA submits that the proper interpretation of cl 3.14(11):(a) clarifies the objective criteria to be taken into account whendetermining the location of the nearest safe area (namely trafficvolume, vehicle load and the ability to undertake repair safely at theroadside off the roadway);19 P v F [2015] NZCA 317, [2015] 3 NZLR 758 at [32].20 At [33], citing Glynbrook 2001 Ltd v Official Assignee [2012] NZCA 289 at [79(b)].(b) confirms that the safe area to which a disabled heavy motor vehicle isto be towed must be the nearest safe area to the site of disablement asindicated by:(i) the word "nearest" in cl 3.14(1);(ii) the exemptions from standard towing and dimensionrestrictions set out in cl 3.14(11) while the disabled vehicle isbeing towed to the nearest safe area; and(iii) the need to promptly move a disabled vehicle off of theroadway, where it may be creating a hazard for other road users;(c) indicates that a common-sense application of cl 3.14(11) is requiredgiven the myriad factual scenarios in which a heavy motor vehicle maybecome disabled; and(d) indicates that an operator of a HVRS vehicle may be required to makea decision about the location of the nearest safe area.[40] The Police note that the purpose of the VDAM Rule generally is to create areasonable balance between the efficient operation of the heavy motor vehicle fleet,within the constraints imposed by the road network, and ensuring that heavy motorvehicles are operated safely. This objective is achieved by "creating limits to thepermitted configurations, dimensions and mass of vehicles". In contrast, cl 3.14(11)exempts HVRS vehicle operators from complying with the limits on dimension andmass ratio, undercutting those limits that otherwise ensure heavy motor vehicles areoperated safely. In doing so, it avoids the need for urgent overdimension permitapplications whenever a heavy vehicle breaks down. It is submitted that this reinforcesthat the purpose of cl 3.14(11) is to allow a short-distance tow to clear a heavy vehiclefrom a roadway so that other arrangements can be made for its repair or separation ina low-risk location into separate components, each of which does comply with therequirements as to overdimension and mass. The exemption ought therefore onlyapply until the "nearest" safe area has been reached. Any wider exemption wouldundermine the general purpose, and mechanisms, of the VDAM Rule.[41] The Police point to a number of good safety reasons why the exemption in cl3.14(11) only applies until the nearest safe area is reached. The mass ratio is said toimpact on the ability of the towing vehicle to control the mass towed, which is ofparticular importance if the towing vehicle is travelling at speed, is required to stop,or to change direction abruptly. The dimension regulations also serve an importantsafety function in that they help ensure vehicles and their loads stay within their lane,particularly when turning. Issues said to arise from the operation of overdimensioncombinations of vehicles include that they may block intersections, cross the centreline, and cause other motorists to take longer when overtaking.[42] The Police submit that the location of the nearest safe area must be objectivelyassessed, arguing that the text of cl 3.14(11) supports an objective interpretation, therebeing no gloss on the phrase "nearest safe area", except for the matters listed, each ofwhich is capable of objective ascertainment. The purpose of the VDAM Rule is alsosaid to support an objective determination as it recognises the dangers inherent in theoperation of vehicles exceeding permitted dimensions and mass ratios. In the interestsof road user safety, the time period and distance over which the cl 3.14(11) exemptionapplies ought to be the minimum that is required. A subjective interpretation of"nearest safe area" would allow tows to be carried out over a greater distance and timeperiod, and would subject other road users to the greater safety hazards posed byoverdimension vehicles and would undermine the ability of Police to regulate suchconduct. Finally, it is contended that the legislative context would also support anobjective assessment as cl 3.14(11) is an exception to the general prohibitions andrestrictions contained in the VDAM Rule.[43] As to the area that may be the "nearest safe area", the Police argue that theplain text of cl 3.14(11) indicates that it will always have the following features:(a) it must be the nearest;(b) it must be off the roadway; and(c) it will turn on circumstance: namely traffic volume, vehicle load andthe ability to undertake repairs safely at the roadside.[44] The Police contend that Ace is taking a literal interpretation in submitting thatareas such as road shoulders, petrol stations, large public carparks and truck stops arenot "off the roadway" and so cannot be a "safe area". They submit that, even if thoseplaces may literally be "road" as defined in the Act, that does not mean they cannot beplaces "off the roadway". In support of that submission, they provide the followingreasons:(a) Considering the defined terms together, in permitting the combinationto be towed to the nearest safe area "off the roadway", cl 3.14(11)permits the combination to be towed off that portion of the roadshoulder, petrol station, etc that is being used (or reasonably useable forthe time being) for vehicular traffic in general. Factual situations willplainly arise where there is an available road shoulder, truck stop orother area that is not "being used" for "vehicular traffic in general".Accordingly, in those situations those sorts of locations can be "safeareas" and thus also "nearest safe areas".(b) Ace's interpretation overlooks the fact that the meaning of "road" forthe purposes of the Act is a question of fact to be determined by thecircumstances of each case and that a literal approach should not beallowed to work absurdity:21It would be permissible to depart from the ordinary meaningof the New Zealand statutory definition if it led to someabsurdity or if in any particular section of the Transport Actthe context otherwise required.Transplanting a literal interpretation of "road" may lead to an absurdresult which can be avoided given that the meaning of "nearest safearea" can and should be ascertained from the three circumstances21 McBreen v Ministry of Transport [1985] 2 NZLR 495 (CA) at 498.expressed in cl 3.14(11), each of which is capable of objectiveascertainment.Analysis[45] I accept the submissions advanced by NZTA and the Police that the correctinterpretation of this clause of the VDAM Rule would require an objectivedetermination of the nearest safe area, as opposed to the subjective determination Acecontends for. In making such a determination, the HVRS vehicle operator would needto take into account those factors explicitly set out in the rule: namely, the volume oftraffic, the vehicle load, and the ability to undertake safely repairs at the roadside, offthe roadway. I agree with the Police that a literal interpretation of the word "road" isunjustified. The concepts of road and roadway cannot be conflated as the plaintiffattempts to do. Depending on the circumstances, it might be that the nearest safe areato which a disabled vehicle should be towed will be an area that might technicallycome within the definition of "road" provided in the Act but which will be an area thatis not at the time being used for vehicular traffic. Given the dangers inherent in towinga heavy vehicle for any distance, it is imperative that emphasis is placed on the safearea being the nearest one possible, so as to minimise the risk posed to the public.[46] The obligations arising under the Health and Safety at Work Act 2015 do notoverride or displace the VDAM Rule. As noted in the cases referred to in [38] above,attempting to rely on interpretation of a word that is used in an entirely differentstatutory context is fraught with difficulty and the Court is best to focus on the purposeand language of the statute actually being interpreted. In any event, obligations underthe HSW Act do not modify the obligation to tow the disabled vehicle to the nearestsafe area. The exemption which permits the towing of over mass or over dimensionvehicles which have become disabled creates safety issues of its own. Implicitly, themass and dimension limits have been fixed because exceeding those limits is not safe.It is also consistent with the purpose of "assisting land transport safety and security"22that any exemption from the limits apply for the shortest possible distance. The factthat it may be more convenient for the vehicle recovery operator or vehicle owner for22 Land Transport Act 1998, s152 (b).the recovered vehicle to be towed somewhere other than the nearest safe location isirrelevant.Declaratory judgment legal framework[47] As noted above, the plaintiff's application is also opposed on the basis that theCourt does not have jurisdiction to grant such a declaration.[48] In New Zealand, a declaration may be obtained under, inter alia, theDeclaratory Judgments Act 1908 (DJA) and the High Court's inherent jurisdiction.23[49] Enacted so as to enable the High Court to give declarations or orders,24 theDJA's purpose is:25 to provide a quick and inexpensive means of obtaining a judicialperspective in situations where the matter cannot be brought before the courtin its ordinary jurisdiction and "where a declaratory judgment would beappropriate relief".[50] Section 2 of the DJA provides as follows:2 Declaratory judgmentsNo action or proceeding in the High Court shall be open to objectionon the ground that a merely declaratory judgment or order is soughtthereby, and the said Court may make binding declarations of right,whether any consequential relief is or could be claimed or not.[51] Section 3 sets out the circumstances in which a declaratory judgment or ordermay be obtained:3 Declaratory orders on originating summonsWhere any person has done or desires to do any act the validity,legality, or effect of which depends on the construction or validity ofany statute, or any regulation made by the Governor-General in23 Rachael Schmidt-McLeave "Declaratory Relief" in Peter Blanchard (ed) Civil Remedies inNew Zealand (online ed, Thomson Reuters) at [51.14.1].24 Declaratory Judgments Act 1908, long title.25 Rachael Schmidt-McLeave, above n 6, at [51.14.2.1], citing NZ Insurance Co Ltd v PrudentialAssurance Co Ltd [1976] 1 NZLR 84 (CA), Wybrow v Chief Electoral Officer [1980] 1 NZLR 147(CA) and Young v NZ Insurance Co (1909) 29 NZLR 50 (SC).Council under statutory authority, or any bylaw made by a localauthority, or any deed, will, or document of title, or any agreementmade or evidenced by writing, or any memorandum or articles ofassociation of any company or body corporate, or any instrumentprescribing the powers of any company or body corporate; orWhere any person claims to have acquired any right under any suchstatute, regulation, bylaw, deed, will, document of title, agreement,memorandum, articles, or instrument, or to be in any other mannerinterested in the construction or validity thereof,—such person may apply to the High Court by originating summons fora declaratory order determining any question as to the construction orvalidity of such statute, regulation, bylaw, deed, will, document oftitle, agreement, memorandum, articles, or instrument, or of any partthereof.[52] The breadth of this jurisdiction was emphasised by the Supreme Court inMandic v Cornwall Park Trust Board, with the Court also confirming that access tothe jurisdiction does not depend on there being an existing dispute or a lis.26[53] Once it is determined that the Court has jurisdiction under the DJA to answerthe questions raised in the proceedings, the next step is whether the Court in theexercise of its discretion under s 10 should decline to do so.27[54] The test is that set out by the Court of Appeal in NZ Insurance Co Ltd vPrudential Assurance Co Ltd:28The jurisdiction to make orders under the Declaratory Judgments Act iswholly discretionary. The cases defining the attitude of the courts in theexercise of that discretion are numerous (see Sim's Practice and Procedure(11th ed), vol 2, p 823) and they establish certain guidelines which willgenerally be followed. The Court will not answer purely abstract questions inanticipation of an actual controversy. It will not deal with mixed questions offact and law. The procedure is designed to provide a speedy and inexpensivemethod of obtaining a judicial interpretation where the matter in disputecannot conveniently be brought before the court in its ordinary jurisdictionand where a declaratory judgment would be appropriate relief. But theprocedure should not be adopted where the party who institutes them canwithout real difficulty have the matter in dispute disposed of in an ordinaryaction.26 Mandic v Cornwall Park Trust Board [2011] NZSC 135, [2012] 2 NZLR 194 at [9].27 Reid v Reid (1985) 3 NZFLR 643 (CA) at 644-645.28 NZ Insurance Co Ltd v Prudential Assurance Co Ltd, above n 8, at 85.[55] Many of these factors are the same as those to be taken into consideration by aCourt when determining whether to invoke its inherent jurisdiction to grantdeclaratory relief.29[56] The Court's inherent jurisdiction to grant declarations concerning privateconduct was traditionally limited to declarations concerning enforceable legal rights.30More recently, though, the Court of Appeal has held that the proposition that the Courtcould make a declaration in its inherent jurisdiction only if there are rights and dutiesof, and owed between, relevant parties was inaccurate.31 It has instead emphasised theexpansive nature of the declaratory jurisdiction. For example, in Re Chase, Cooke Pobserved that:32 it does not seem to me a legitimate function of the High Court, or this Courton appeal, to renounce or narrow inherent jurisdiction. The same applies towide discretionary jurisdiction conferred by statute. Attempts to foreclose thecategories of cases in which such jurisdiction may appropriately be exercisedcan be equally short-sighted. It is given to no Judge to foresee all the possiblekinds of case, or all the shifts in what the public interest will require from timeto time. ...As to jurisdiction, s 2 of the Declaratory Judgments Act is amply wide and inmy view should not be restricted by interpretation: provided always that it isread together with s 10, which expressly states that the declaratory jurisdictionis discretionary "and the said Court may, on any grounds which it deemssufficient, refuse to give or make any such judgment or order".[57] More recently, Chambers J, noting that the law had moved on since Gouriet,quoted the following passage from Zamir & Woolf: The Declaratory Judgment:33... within the limits of their general jurisdiction and subject to any expressstatutory provision to the contrary the courts have a discretion to grantdeclarations upon any matter whatsoever.[58] NZTA submits that the High Court may be able to make declaratory ordersbeyond those falling within the terms of s 3 of the DJA, noting, as examples, thatdeclarations have been sought under the Court's inherent jurisdiction where:29 See Dariush-Far v Ellis HC Christchurch CIV-2007-409-1518, 6 November 2007.30 Gouriet v Union of Post Office Workers [1978] AC 435 (HL) at 501.31 Peters v Davison (No 3) [1999] 2 NZLR 164 (CA).32 Re Chase [1989] 1 NZLR 325 at 333.33 Telecom Corporation of New Zealand Ltd v Commerce Commission [2012] NZCA 278 at [295],quoting from Lord Woolf and Jeremy Woolf Zamir & Woolf: The Declaratory Judgment (4th ed,Sweet & Maxwell, London, 2011) at [3-19].(a) the applicant was seeking a declaration about the consequence of non-compliance with trust board rules, rather than the meaning of the rulesthemselves;34 and(b) the applicant sought declarations about the interpretation of resourceconsents (which are not instruments or documents referred to in s 3 ofthe DJA).35[59] NZTA contends that the key point, as Cooke P observed in Re Chase, is thatthe wide jurisdiction must read together its discretion to grant a declaration and that,in determining whether to grant such a declaration, regard should be had to theprinciples emerging from the case law concerning the exercise of the discretion unders 10 of the DJA.36[60] It is submitted for NZTA that declaratory relief will normally be refused incases in which the subject matter of the proposed declaration can be characterised astheoretical or hypothetical,37 and that the absence of a dispute based on concrete factsis critical.38 This approach, it is said, reflects the Courts' primary role, which is toresolve existing disputes between parties where the Court's decision will haveimmediate and practical consequences for at least one of the parties.39[61] NZTA argues that hypothetical cases include cases where a dispute is notattached to specific facts, noting that Zamir & Woolf explains why these kinds ofdisputes tell strongly against the granting of declaratory relief in the following way:40If the dispute is not attached to specific facts, and the question is onlywhether the claimant is generally entitled to act in a certain way, the issue willstill be considered theoretical and the court may refuse relief on that basis.The main reason for this is that there may be no certainty that such a generaldeclaration will settle the dispute finally. Subsequent to that declaration aperson may be adversely affected by a particular act of the clamant. It may34 Apineru v Board of Trustees of the Congregational Christian Church of American Samoa inNew Zealand (Porirua) Trust (2004) 1 NZTR 14-015 (HC).35 Star Holdings Ltd v Meridian Energy Ltd HC Timaru CIV-2003-476-000732, 23 March 2004.36 Schmidt-McLeave, above n 6, at [51.15.7].37 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd, above n 8.38 Woolf and Woolf, above n 16, at [4-59].39 At [4-35].40 At [4-71] (footnote omitted).then be doubtful whether this act is covered by the declaration. In such a casethe affected person will probably be entitled to raise the issue again on itsspecial facts. Indeed, such a declaration will in effect be a mere advisoryopinion. Granting declarations in such circumstances may not assist theefficient administration of justice because the proceedings may take time toresolve but the declaration may not resolve the dispute.[62] The Courts, it is contended, will be wary about:(a) providing the plaintiff with "an expository gloss upon the Act" with theresulting declared documents being used as weapons in "futurehypothetical hostilities with future hypothetical opponents";41 and(b) making declarations without full appreciation of the practicalimplications of such a declaration.42[63] NZTA submits that the fact that an applicant has an immediate practical interestin a declaration is not sufficient to render real an otherwise hypothetical issue.43[64] As to the legality of future proposed conduct, NZTA notes that courts havetraditionally proceeded with great caution when exercising the discretion to issuedeclarations as to whether certain conduct amounts or will amount to the commissionof an offence.44 This approach was recently confirmed by the Supreme Court inShark Experience Ltd v Pauamac5 Inc.45[65] Another factor said to weigh against granting declarations is the existence ofcontested facts. In Mandic, the Supreme Court held that an application for adeclaratory order is inappropriate when there are questions of fact to be determined.46In Shark Experience Ltd, it was confirmed that courts are reluctant to issue adeclaration where the proceeding is fact-sensitive, involves disputed factual material,41 Lever Brothers and Unilever v Manchester Ship Canal Co (1945) 78 LLLT 507 at 509 (EWHC).42 See R (Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at [21].43 Woolf and Woolf, above n 16, at [4-59].44 See, for example, Imperial Tobacco Ltd v Attorney-General [1981] AC 718 (HL); Ambrose vAttorney-General [2012] NZAR 23 (HC) at [36].45 Shark Experience Ltd v Pauamac5 Inc [2019] NZSC 111.46 Mandic v Cornwall Park Trust Board, above n 9, at [5] and [82].or where there is insufficient evidence before the Court to determine a question offact.47[66] Finally, the DJA may not be used if the disputed point of law is already beingconsidered by the Court in separate proceedings between the same parties.48 TheHigh Court in Pharmaceutical Society of New Zealand v Barron observed:49[8] There is no prohibition against declaratory judgment proceedingswhere a prosecution could be brought which might answer a similar question.This position can change if a declaratory judgment is sought during the courseof criminal proceedings.Should the Court exercise its jurisdiction to grant the declaratory order sought?[67] NZTA submits that Ace's proposed declaration does not fall within s 3 of theDJA because the VDAM Rule is not "any regulation made by the Governor-Generalin Council under statutory authority", noting that, as acknowledged by Ace, it is a rulemade by a Minister of the Crown.[68] While the NZTA accepts that Ace may nevertheless be able to avail itself ofthe jurisdiction under s 2 of the DJA and the Court's inherent jurisdiction, it submitsthat, even if the Court is satisfied that it has jurisdiction to hear and determine ACE'sclaim, it should decline to exercise its discretion to grant a declaratory order for thefollowing reasons:(a) The declaration sought is hypothetical. It is divorced from any factualcontext and amounts to an advisory opinion about the interpretation ofcl 3.14(11). The declaration would therefore not resolve any disputebetween the parties about the meaning of cl 3.14(11) as any conclusioncould be revisited in a separate proceeding.(b) The interpretation of cl 3.14(11) is better addressed through thecriminal proceedings that have been initiated against ACE and two of47 Shark Experience Ltd v Pauamac5 Inc, above n 28, at [115], citing Ambrose v Attorney-General,above n 27, at [48], [51] and [55].48 Chaffey v Mount Cook Air Services Ltd [1969] NZLR 25.49 Pharmaceutical Society of New Zealand v Barron [2003] 3 NZLR 69.its drivers. The Court may offer views about the interpretation ofcl 3.14(11) that may assist the determination of those proceedings, if itis satisfied that so doing would not usurp the functions of the criminalcourts in considering these issues.(c) The terms of the declaration are unclear and are not capable of precisedefinition.(d) If granted, the declaration would:(i) enable ACE's drivers to make wholly subjective assessmentsabout the location of the "nearest safe area" – effectivelyconferring a discretion on a regulated party – notwithstandingthat the wording of cl 3.14(11) does not expressly provide forthat;(ii) substantially restrict the grounds on which an operator'sdecision about the location of the nearest safe place could bechallenged; and(iii) effectively re-write the text of cl 3.14(11).These and other aspects of the draft declaration do not reflect the correctinterpretation of cl 3.14(11).(e) In any event, key facts underpinning ACE's interpretation of cl 3.14(11)are disputed by NZTA and the Police.[69] It is submitted that any one of these reasons would be sufficient for the Courtto exercise its discretion to refuse to grant the declaration sought, and the existence ofall of these reasons in this case tells very strongly in favour of an exercise of theCourt's discretion to refuse relief.[70] I accept the NZTA's submissions on these points as summarised in [58]-[68]above. Given there are criminal proceedings before the courts that concern theinterpretation of cl 3.14(11), it would be preferable for its correct interpretation to bedetermined in a particular factual setting, where the Court will no doubt be made fullyaware of any potential risks involved in allowing drivers to make subjective decisionsas to what "the nearest safe area" is. Accordingly, although it is my view that the Courthas jurisdiction to make a declaration of the nature sought, this is not a situation inwhich it would be appropriate to do so.Result[71] The Court declines to make a declaration of the nature sought.Churchman JSolicitors:Burton Partners, Auckland for plaintiffMeredith Connell, Auckland for defendantKayes Fletcher Walker Ltd, Manukau for intervenerCounsel:P A Morten, WellingtonT Mijatov and J C Toebes, Wellington