BARTLE GROUP LIMITED trading as ACE TOWING AND HEAVY HAULAGE v THE NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 2168

BARTLE GROUP LIMITED trading as ACE TOWING AND HEAVY HAULAGE v THE NEW ZEALANDTRANSPORT AGENCY [2019] NZHC 2168 [22 August 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-378[2019] NZHC 2168BETWEEN BARTLE GROUP LIMITED trading asACE TOWING AND HEAVY HAULAGEPlaintiffAND THE NEW ZEALAND TRANSPORTAGENCYDefendantHearing: 22 August 2019Appearances: P A Morten for PlaintiffK Muirhead for DefendantT Mijatov for IntervenerJudgment: 22 August 2019JUDGMENT OF GRICE JIntroduction1[1] The plaintiff, Bartle Group Ltd, trading as ACE Towing and Heavy Haulage(Bartle), has filed an application for a declaration as to the meaning of r 3.14(11) ofthe Land Transport Rule: Vehicle Dimensions and Mass 2016 (the Rule). Therespondent is the New Zealand Transport Agency (NZTA).[2] On 15 August 2019 NZTA made an application that the police be joined as anintervener to these proceedings on the following grounds:(a) The police have a legitimate and substantive interest in the proceedings;1 This decision was delivered orally 22 August 2019. The written form has been edited andfootnoted before distribution.(b) It would be unjust to allow this matter to be heard without offering thepolice a chance to be heard due to their direct involvement inenforcement and prosecution in this area;(c) The police have specialist knowledge that could assist the Court beyondNZTA's knowledge;(d) The police should be bound by any declaration in these proceedings;and(e) No prejudice will be suffered if they are joined.[3] Orders relating to service are also sought by the NZTA.[4] On 16 August 2019 Bartle filed a notice of opposition to the application. Itsaid the police should not be joined as an intervener because:(a) The presence of the police is not necessary to justly determine the issuesarising;(b) These are civil proceedings and the police involvement is inenforcement and criminal proceedings only;(c) The police will be bound by the decision whether or not they are joined;(d) Case law does not support joinder;(e) The police could assist NZTA without being joined;(f) Prejudice would be caused if the police were joined.[5] Bartle emphasised this matter needed to be dealt with expeditiously. Atimetable for submissions allowed this hearing within a very short timeframe. Igranted leave for the police to file submissions and relevant evidence within thattimeframe to give me a clear idea of the possible contribution and their possibleassistance to the Court. I also granted the police leave to appear today.Intervention: the principles[6] The inherent jurisdiction of this Court enables it to grant leave to a non-partyto intervene in a proceeding. An entity that is not a party may apply to a Judge tobecome involved in a proceeding through intervening and the Judge may makedirections on the conduct of the proceedings.2 There is, however, no specificlegislative basis for intervention in New Zealand.3[7] A number of decisions have considered the issue and laid down someprinciples, including Seales v Attorney-General to which counsel all referred.4[8] The starting point is whether the proposed intervener, or in this case, NZTA onbehalf of the police, has laid a sound basis for this Court to depart from the usualsituation of privity of litigation. This is particularly so in this case as the interventionis opposed.5 As Lord Woolf noted in Re Northern Ireland Human Rights Commission(Northern Ireland):6The practice of allowing third persons to intervene in proceedings brought byand against other persons which do not directly involve the person seeking tointervene has become more common in recent years but it is still a relativelyrare event. The intervention is always subject to the control of the court andwhether the third person is allowed by the court to intervene is usuallydependent upon the court's judgment as to whether the interests of justice willbe promoted by allowing the intervention. Frequently the answer will dependupon whether the intervention will assist the court itself to perform the roleupon which it is engaged. The court has always to balance the benefits whichare to be derived from the intervention as against the inconvenience, delay andexpense which an intervention by a third party can cause to the existingparties.[9] In Seales v Attorney-General, Collins J set out the following four principlesagainst which to consider applications:72 High Court Rules 2016, r 743A(2)(a).3 Seales v Attorney-General [2015] NZHC 828 at [41].4 Seales v Attorney-General, above n 3.5 At [43].6 Re Northern Ireland Human Rights Commission (Northern Ireland) [2002] UKHL 25 at [32].7 Seales v Attorney-General, above n 3.[44] First, the power to grant leave to intervene is discretionary and shouldbe exercised with restraint to avoid the risk of expanding issues, elongatingthe hearing and increasing the costs of the litigation.8[45] Second, in a proceeding involving issues of general and wide publicimportance, leave to intervene may be granted when the Court is satisfied thatit would be assisted by the intervener.9[46] Third, it may be appropriate to grant leave to intervene where theproceeding is likely to result in the development of the law.10[47] Fourth, leave should not be granted when the proceeding is essentiallyone that involves statutory interpretation and is unlikely to involve broadquestions of policy.11[10] In Capital and Merchant Finance Ltd v Perpetual Trust Ltd, Thomas Jindicated the following factors could be of assistance. The most relevant of thesefactors in this case can be summarised as follows:12(a) The interveners legal rights against or liabilities in relation to thesubject matter should be directly affected. Lesser weight is given tocommercial, financial or reputational interests.(b) It should be considered to what extent the intervener can rely on ajoined party to protect its rights and obligations.(c) Intervention should not be allowed where prejudice will be caused orwhere an impression of partiality is created.(d) It should be considered whether it would be unjust for the intervenernot to be heard in the proceedings.(e) Where intervention is justified, the degree of participation should belimited to the minimum required to protect its interests.8 Drew v Attorney-General [2001] 2 NZLR 428 (CA) at [11].9 Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 436 (CA).10 X v X HC Auckland CIV-2006-404-903, 4 July 2006 at [25].11 D v C [Intervention] (2001) 15 PRNZ 474 (CA) at [7].12 Capital and Merchant Finance Ltd v Perpetual Trust Ltd [2014] NZHC 3205 at [41] .AnalysisThe impact of these proceedings on the police and the information they can provide[11] In my view the interpretation of the Rule will have an effect on policeoperations in their enforcement of the Rule and in their prosecutions of allegedbreaches of it.[12] The Rule specifies the requirements for dimension and mass limits for vehiclesoperating on New Zealand roads and sets out provisions for the performance andoperation of motor vehicles. The Rule replaces a previous Land Transport rule andapplies to all motor vehicles and cycles. The Rule is designed to create a reasonablebalance between the efficient operation of the heavy motor vehicle fleet and theconstraints imposed by the road network to ensure that heavy motor vehicles areoperated safely. It does this by creating limits to the permitted configurations,dimensions and mass of vehicles, with particular emphasis on large combinationvehicles. It also clarifies the existing requirements for vehicle dimensions and masslimits. Of relevance, r 3.14(11) says:133.14(11) A heavy vehicle recovery service vehicle may tow a heavy motorvehicle that has become disabled while on a roadway, and any attachedtrailers, to the nearest safe area, taking account of traffic volume, vehicle load,and the ability to undertake repair safely at the roadside, off the roadway (thatis accessible without contravening any bridge weight limit including postedlimits) and does not have to—(a) first comply with dimensional requirements in Schedule 2; or(b) the with the mass ratio of towed and towing vehicles in 4.5; or(c) be operated under an overdimension permit.[13] It is clear that the focus in the substantive proceeding will be on the words "thenearest safe area". The interpretation will need to take into account a number offactors. It is clear, as Mr Morten emphasised, the types and nature of the vehicleswhich are likely to be involved will be different in each case. There are issues ofpublic safety involved which will apply beyond the present two parties to thisproceeding.13 Emphasis added.[14] In addition, there is a District Court decision of 11 July 2019 which relates tothe prosecution by the police of one of the Bartle's drivers.14 That decision is on apreliminary application to strike the prosecution out under this Rule. The preliminaryapplication was unsuccessful and the matter has been adjourned to a call over on 4September 2019 for a two-day judge alone trial. That prosecution has been adjournedpending the outcome of this proceeding. Currently there are a number of similar casesbefore the District Court in which the police are involved and, therefore, the police'sinvolvement in these proceedings is somewhat closer than would ordinarily be thecase.Likely assistance[15] Sergeant Spence has given evidence supporting the intervention by affidavit.Mr Morten in submissions questioned Sergeant Spence's authority and expertise toprovide the evidence. However, I do not consider that that objection is relevant forthe purposes of this application. I am satisfied that Sergeant Spence has the authorityto give the evidence he does for the purposes of this application. He swears that hehas that authority. I have no reason to question that.[16] In his evidence Sergeant Spence says that the role of the Police CommercialVehicle Safety Team (the unit) is a specialist role. He sets it out how it operates in thepolicing of New Zealand's roads. The unit is made up of both sworn officers andauthorised officers (who are mechanics) who are trained in most road policinglegislation and have the authority to undertake all aspects of this duty under anyenactment.15 The Rule is one of the rules dealt with by that unit.[17] The unit works closely with agencies such as NZTA in undertaking this work.However, NZTA undertakes a different role to the police in that it oversees thetransport system as a whole. It also has the power to revoke or suspend licences. Thepolice must enforce the legislation, rules and bylaws. The police also primarilyundertake any prosecution or infringement action and manage those prosecutions andinfringements as well as the operations.14 Police v Price [2019] NZDC 13795.15 Except for the powers to arrest or detain.[18] Seven cases relevant to this rule are apparently before the District Court atpresent.16[19] Mr Morten for Bartle submitted that some, if not all, of the prosecutions againstBartle were initiated after these proceedings were contemplated. I do not consider thatis directly relevant nor do I need to go into the police's reasons for bringing thoseprosecutions. The police's responsibility is to prosecute under the Rule and theirprosecutorial discretion is a matter for them.[20] In the prosecutions that have been brought, at least in those against the driversfor Bartle, it is apparent that the defences raised will relate to the interpretation of theRule for which the declaration is sought in this proceeding. It is also apparent thatBartle, on behalf of its drivers, will be promoting a similar interpretation to that whichit promotes in these proceedings.[21] The relevant criminal prosecutions have been adjourned pending the outcomeof this proceeding. As well as the present prosecutions being undertaken, obviouslythere will be a direct effect on how the police prosecute similar cases in the future asa result of the declaration in this case.[22] The police are the enforcement agency with direct involvement in theprosecution of breaches of the Rule and will have a real-world knowledge of thepracticalities involved in the application of this Rule and to the factors, that Bartle hasset out as relevant to the drivers' decision as to where a vehicle should stop. NZTA isnot involved in these prosecutions and therefore will not have the same knowledge.[23] I also do not consider that the required assistance could be given to the Courtby the mere production of copies of the summary of facts for the relevant prosecutionsbrought in the District Court. Nor could the NZTA appropriately convey in itssubmissions the relevant points in relation to prosecutions. It would be of far moreassistance having the police involved and able to assist the Judge directly whererequired.16 These include or are in addition to prosecutions against drivers who are employed by Bartle.[24] The interpretation of the Rule will also likely involve some level of policy asit relates to road safety and other factors. It appears to me the expertise of the policewill be of assistance to the Court in relation to that as well.[25] While a declaration will not affect the police's strict legal rights it will affecttheir operations and enforcement.[26] I consider that this is a case where the assistance that the police can provide issuch that they should be present as intervenor in these proceedings.Importance of the issue and development of the law[27] The issue before the Court is not a narrow one affecting only Bartle. Whilethere are a number of cases against the Bartle drivers, clearly there will be casesagainst other drivers not involving Bartle. This illustrates the general importance ofthis issue albeit possibly to a narrow group of road users.[28] Although it is difficult to establish with any level of certainty this early in theproceedings, it seems to me there will be overtones of policy and road safety that arise.Again, the assistance of the police in relation to those issues would assist the trialJudge. This is not a simple issue of statutory interpretation affecting only two parties.It has a much wider effect.[29] If a declaration is made as to the interpretation of this Rule it will develop thelaw and will have the likely effect of determining whether or not prosecutions, like thepresent ones of the Bartle drivers, proceed or not.Intervention and prejudice[30] NZTA submit the police involvement may assist by narrowing rather thanexpanding the issues in dispute due to the expertise of the police. It argues the policeintervention will not materially increase the length of the hearing or its cost becauseof the streamlined nature of declaratory judgment procedures and the ability of thisCourt to limit the extent to which the police are able to participate by virtue of theintervention.[31] NZTA has also indicated that it will require the timetable to be extended toenable the police to provide any further evidence that may assist the Court. In myview, that if the timetable is carefully managed that is unlikely to extend the time tohearing by any significant period.[32] Bartle argues that the police will simply provide more evidence about theprosecutions against its drivers already in the District Court. This, it submits, isseriously prejudicial to Bartle's defence of the charges. I am unsure as to exactly whatprejudice will occur. Bartle submits that while the usual case is that where criminalcharges are pending and a civil case is brought involving the same facts, the civil caseshould be adjourned. It may well be that the existence of the criminal prosecutionsmay affect the outcome of the declaration or at least the exercise of the discretion.Nevertheless that is a matter on which I am sure Bartle will make submissionsparticularly concerning the timing of the laying of the prosecutions. That will be amatter for the substantive hearing.[33] Some of the matters raised in the prosecutions in general may assist the Court.Nevertheless, the criminal proceedings should be dealt with on their own merits. Noprejudice arises here.[34] Bartle also argues that the declaration it seeks is "forward looking", in that itwill enable Bartle and no doubt other transport companies to comply with the law.Whereas, it says the evidence of the police will be backward facing so will necessarilyincrease the length of the proceedings.[35] However, the declaration will be dealt with, on present indications, before thepolice prosecutions are dealt with in the District Court. A declaration may well affectexisting prosecutions as well as any to come.Intervention and justice[36] The police have indicated in their memorandum that they wish to give evidenceand make submissions on the proper interpretation of the Rule. I believe that the policewould be able to provide assistance if focussed on the points that will assist the courtand it is appropriate they be given leave to intervene. Given their involvement in theday to day enforcement and their specialist expertise and experience it would servethe interests of justice if they intervened. They bring experience and expertise whichis quite different to that of NZTA.[37] Mr Morten for Bartle also raised a further point. He provided a copy of theAttorney-General's values from the Crown Law website. These are headed"Attorney-General's values for Crown civil litigation". They state that there is onlyone Crown in New Zealand. Accordingly the Crown needs to be able to have a singleand consistent view and speak with one voice on questions of law.[38] In my view while that may be of relevance to some situations that is a matterfor the Crown and for the police and the NZTA to deal with. It does not provide areason for the police assistance not to be permitted in this case, given their specialexpertise and experience.Conclusion and conditions[39] As will be apparent, I conclude the police should be joined as interveners inthe present proceedings. However, there will be strict conditions in relation to theirintervention to ensure that the proceedings are not prolonged unduly.[40] I propose imposing the following conditions:(a) The police may produce evidence as it relates to the interpretation ofthe Rule. This should not be duplicate of anything provided by theNZTA and should solely be related to the issue before the Court.(b) Written submissions on the interpretation of the Rule in theenforcement context should be provided but should be less than 4,000words. That of course does not include any authority or rules thatwould be provided in support of those submissions.(c) The police will also be permitted to present oral submissions at thehearing however the length of those will be determined by the hearingJudge.(d) I also impose a condition that the intervener may not seek costs againstany party.[41] Counsel, may wish to seek other conditions. I allow three days to apply forleave to include other conditions.Service[42] NZTA seeks orders for directions as to service on the police.17 It asks for anorder that the pleadings in this proceeding be served on the police through theirsolicitor, Kayes Fletcher Walker. Such an order is appropriate. I make such an orderaccordingly.Costs[43] In relation to costs I note that NZTA seeks costs but costs are opposed by Bartleon the basis that NZTA has sought an indulgence here. I will allow submissions oncosts to be filed.[44] NZTA is to file within three days and Bartle are to file any response within afurther two days after that, if counsel are unable to agree on the issue of costs for thisapplication.Timetabling[45] I grant leave to extend time for filing of the statement of defence to 29 August2019.[46] The matter is to be called in the chambers list on Monday 2 September toenable counsel to confer about the timetable, liaise about timing and possible lengthof the hearing._________________Grice J17 High Court Rules 2016, r 18.7(2).