BOSS TRANSPORT LIMITED v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 522

BOSS TRANSPORT LIMITED v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 522 [21 March2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-979[2019] NZHC 522BETWEEN BOSS TRANSPORT LIMITEDApplicantAND NEW ZEALAND TRANSPORT AGENCYRespondentHearing: 27 February 20196 March 2019 – further evidence receivedAppearances: J L S Shaw and C A Donaldson for the ApplicantN R Williams and J M Phillips for the RespondentJudgment: 21 March 2019JUDGMENT OF CULL JTABLE OF CONTENTSCritical events 5Procedural history 18Relevant legal principles 23The statutory framework 27The threshold issue 34Whether to grant relief considering all the circumstances 40The Agency's Decision 42The Agency's position 47Boss' position 53The strength of the judicial review claims 58Relevant/irrelevant considerations 61Natural justice grounds 65Unreasonableness/proportionality 67The overall justice of public safety and private considerations 73Orders 85Interim Conditions of Operation 87Costs 90[1] Boss Transport Ltd (Boss), a Wellington bus company, has a fleet of 73 busesand employs 37 drivers, four additional drivers, and four full-time employees. It hasbeen in business since 2004. On Friday 21 December 2018, four days beforeChristmas Day, the New Zealand Transport Agency (the Agency) revoked all of Boss'transport service licences, to take effect at midnight on 21 December 2018 (theAgency's Decision).[2] Boss appealed to the District Court, filed for judicial review of the Agency'sDecision and immediately applied, on a without notice basis, for interim relief seekinga suspension of the Agency's Decision.[3] On 24 December, Boss was granted interim relief, suspending the Agency'sDecision, on conditions.1 On 4 February 2019, the Agency unsuccessfully sought torescind the interim orders. The orders were continued, with an additional condition,until this hearing of the interim relief application.2[4] The appeal to the District Court is set down to be heard on 27 May 2019. Thishearing is an application for interim relief, in which Boss seeks a declaration that itslicences remain in force until such time as the appeal and judicial review proceedingshave been heard and determined. The issue I must determine is whether to extendinterim relief until the determination of the appeal and judicial review proceedings.Critical events[5] Boss is the holder of the following licences: large passenger service licence,small passenger service licence, goods service licence, rental service licence, andvehicle recovery licence (the Licences). Boss operates 73 vehicles, primarily buses,in the greater Wellington region, including school bus services.[6] The Agency is the regulatory body responsible for transport service operators.In particular, the Agency makes regulatory decisions regarding the ability of operatorsto hold transport service licences (transport licences) in accordance with the LandTransport Act 1998 (the Act). These licences are granted by the Agency, onapplication, to natural persons or companies if it is satisfied that, inter alia, the1 Boss Transport Ltd v New Zealand Transport Agency HC Wellington CIV-2018-485-979, 24December 2018 (Minute of Grice J).2 Boss Transport Ltd v New Zealand Transport Agency HC Wellington CIV-2018-485-979, 4February 2019 (Minute of Churchman J).applicant is a fit and proper person and that any person who is to have, or is likely tohave, control of the transport service is a fit and proper person.3[7] The holder of a transport licence has an obligation to ensure that every vehicleto be used in the service is maintained in a fit and proper condition.4 It also has a dutyto detect and eliminate traffic-related offending committed by employed drivers in theinterests of public safety, and to ensure that all its activities are carried out safely andin accordance with the relevant prescribed safety standards and practices.5[8] Section 30S(1) of the Act provides that the Agency may revoke a transportlicence if satisfied that either the holder of the licence, any person who has control ofthe transport service, or any driver, is not a fit and proper person.[9] In June 2017, the Agency visited and spoke with Boss about traffic andspeeding offences, vehicle maintenance faults, and a number of systems the Agencyexpected to be put in place. The following year, between April and November 2018,there were 26 instances of alleged non-compliance by Boss vehicles, including 11"pink stickers" (a direction to remove a vehicle off the road) and 15 infringementnotices.6[10] On 18 October 2018, the Agency served Boss with a Notice of Proposal toRevoke the Licences (Revocation Proposal).7 A Notice of Immediate Suspension fromdriving a vehicle used in a transport service was simultaneously served on Mr MalcolmLittle, the sole director and shareholder of Boss.[11] In the Revocation Proposal, the Agency set out the matters of concern:(a) vehicle maintenance issues and faults being found at roadsideinspections, including the repeated operation of vehicles that were not3 Land Transport Act 1998, s 30L.4 Land Transport Act 1998, s 30A.5 Land Transport Act 1998, s 4(3) and 5; and McCrostie Trucking Ltd v New Zealand TransportAgency [2018] NZHC 2736 at [26].6 "Pink stickers" is a reference to a notice issued under s 115(3) of the Land Transport Act 1998directing that a vehicle must be removed from, and not driven on, the road.7 Issued under ss 30C-30F, 30S and 30W of the Act.up to Certificate of Fitness standard and a number of instances wherethe police had issued vehicles with pink stickers due to mechanicalissues. The nature of Boss' business involving the operation of largepassenger vehicles, including school buses, made these matters ofparticular concern;(b) 179 instances of Boss' traffic offending between 2011 and 2018,including for speeding, exceeding distance licences, aiding and abettingan unlicensed driver, vehicles not being up to Certificate of Fitnessstandard, and operating a vehicle with an insecure load and a smoothtyre; and(c) a lack of systems in place to manage fatigue and other aspects of driverhealth and safety.[12] In addition, the Agency notified Mr Little that he was a not a fit and properperson to be in control of a transport service and set out its reasons. This finding isnot the subject of the judicial review proceeding.[13] Boss was advised of its right to make written submissions by 16 November2018, and its right of appeal in the event its Licences were revoked. In response toissues raised in the Revocation Proposal, Boss implemented new policies andprocedures in October and November 2018.[14] Boss, through its lawyers, advised that submissions would be provided inopposition to the Agency's Revocation Proposal after disclosure of requesteddocuments by Boss. After a number of disclosure and extension requests (some ofwhich the Agency granted), on 4 December 2018 Boss filed its submissions, supportedby affidavits, which broadly stated:(a) a number of policies had been implemented in order to improve Boss'compliance with the Land Transport Rules and Regulations, includingthe employment of a compliance officer, improving servicing andmaintenance procedures, and implementing new policies aroundspeeding, Road User Charges and logbook recording;(b) it acknowledged traffic offending, although the number of offencesconstituting serious non-compliance was disputed; and(c) it raised a number of factual disputes regarding the infringementsidentified at various roadside inspections.[15] Between October and November 2018, there were 11 instances of alleged non-compliance by Boss vehicles, including five pink stickers, and six infringementnotices.[16] Reviewing this material, the Agency "remained of the view" that Boss was nota fit and proper person to be the holder of a transport service licence and decided, on20 December 2018, to issue a Notice of Decision to Revoke the Licences. Therevocation was to take effect from midnight on 20 December 2018. Because of atechnical error, the Notice of Decision to Revoke the Licences was reissued and servedon 21 December 2018, to take effect on midnight of 21 December 2018.[17] Boss has both appealed and applied for judicial review of the Agency'sDecision and applied for interim relief, as the Agency's Decision remains in effectpending appeal. Under the Act, the District Court cannot grant a stay.8Procedural history[18] The without notice interim order application was dealt with urgently on aPickwick basis on 24 December 2018. Grice J granted interim relief, prohibiting theAgency taking any further action on its Decision and declaring that the Licencescontinue subject to a number of conditions, including the appointment of a new Personin Control, increased vehicle inspections, internal safety checks, and pre-departureinspection checklists, which are to comply with Boss' inspection policy and are to be8 Section 106(3). See further at [30] and [31] of this judgment.audited daily, copies of which are to be provided to the Agency on a weekly basis uponrequest.[19] On Sunday 27 January 2019, at Otaki shortly before midnight, the police,accompanied by Agency personnel, stopped three buses operated by Boss overconcerns the drivers had exceeded their maximum working hours. The buses werereturning from a rowing regatta in Cambridge and had school students, parents, andteachers on board. The drivers of the buses had flown from Wellington to Hamiltonon the day in question, prior to commencing driving. Each had recorded different starttimes in their logbook and it appears there was no consistent understanding by thedrivers as to when they actually started work (whether that was when they starteddriving the bus, when they departed from Wellington on the plane for Hamilton, orwhen they were picked up and driven to the airport). Boss sent replacement drivers toOtaki to complete the journey.[20] On stopping the second bus that night, an Agency officer announced to thepassengers that the bus was unsafe because it had a cracked chassis and instructed thepolice to issue a pink sticker requiring the bus to be removed from the road. Twohours later, although a replacement bus had arrived to take the passengers, the bus waspermitted to be driven back to Wellington because it was "a compliance issue" only,and the bus was cleared on subsequent inspection.[21] As a consequence of this incident at Otaki (the Otaki incident), the Agencyapplied to revoke the interim relief made by Grice J. Boss opposed this. On 4February 2019, this matter came before Churchman J, who was not persuaded theorders should be rescinded for two reasons: the drivers involved had not previouslybeen flown somewhere and then driven, which went some way to explaining theirconfusion over the completion of their logbooks, and there was no breach of theconditions imposed by Grice J.[22] Churchman J concluded that as the matter was already set down for hearing inrelation to the interim relief application on 27 February, it was more appropriate toaddress all matters in the course of that hearing. Accordingly, he extended the interimorders until 27 February, adding a further condition that all drivers employed by Bosswill at all times comply with all aspects of the driving hours legislation, and any breachof that obligation shall entitle the Agency to bring this matter before the Court on twodays' notice.Relevant legal principles[23] This is an application for interim relief in a judicial review proceeding. Section15 of the Judicial Review Procedure Act 2016 and r 30.4 of the High Court Rules 2016apply. Section 15 allows the Court to make interim orders of the kind sought by Bossif, in the Court's opinion, "it is necessary to do so to preserve the position of theapplicant".9 Interim orders include a declaration that any licence that has been revokedcontinues and, where necessary, is deemed to have always continued.10 An order underthis section 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.11[24] I must now determine whether it is necessary for interim relief to be continuedto preserve Boss' position. If that threshold is met, then the Court should considerwhether to grant the relief considering all relevant circumstances, such as the strengthof Boss' review claim, the statutory framework, and the public and privateimplications of granting relief.12[25] The benchmark decision on the granting of interim relief is Carlton & UnitedBreweries Ltd v Minister of Customs.13 In that case, Cooke J described the approachas a two-stage test:14In general the Court must be satisfied that the order sought is necessary topreserve the position of the applicant for interim relief – which must meanreasonably necessary. If that condition is satisfied the Court has a widediscretion to consider all the circumstances of the case, including the apparentstrength or weakness of the claim of the applicant for review, and all therepercussions, public or private, of granting interim relief.9 Section 15(1).10 Section 15(2)(c).11 Section 15(4).12 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.13 Carlton, above n 12.14 At 430.[26] The two-stage test in Carlton has been adopted in several cases where issuesof public safety were involved and s 106(3) of the Act, preventing a stay pending anappeal, was engaged. The statutory framework of the Act has led to the Courts takinga cautious approach to the granting of interim orders for relief, as I canvass below.The statutory framework[27] Underpinning the Land Transport Act regime is "the promotion andmaintenance of road and vehicle safety."15 The preamble to the Act provides that it isan Act "to promote safe road user behaviour and vehicle safety".[28] Section 30S of the Act allows the Agency to revoke a transport service licenceheld by an operator if the Agency is satisfied that the holder of that licence is not a fitand proper person. The criteria for assessing whether a holder of a passenger servicelicence is fit and proper are set out at ss 30C-30E, and may relevantly include "anyother matter that the Agency considers it is appropriate in the public interest to takeinto account".16 As the Agency submits, the Act provides the Agency with a widediscretion, focused on public safety.[29] It has been accepted by this Court that the holding of a transport service licenceis a privilege, not a right.17 Public safety will always be a critical and ongoing factor.Licensees must therefore "continue to earn their privilege."18 If they infringesufficiently seriously or persistently and so compromise public safety, their licencescan be revoked.19[30] The Act provides for a process to be followed before revocation can occur.Following revocation, Parliament has then allowed for an appeal to the District Court.However, s 106(3) provides that "no person is excused from complying with any ofthe provisions of this Act on the ground that any appeal is pending". Parliament hastherefore mandated that "once a decision is made, it is to take effect unless and until a15 Foreman Automotive Ltd v New Zealand Transport Agency [2013] NZHC 1167 at [50].16 Section 30C(2)(f).17 Cheyenne Haulers Ltd v The New Zealand Transport Agency HC Auckland CIV-2001-404-2456[12 May 2011] at [41].18 At [41].19 At [41].Court overturns it on appeal."20 The District Court, therefore, has no power to staythe Agency's decision pending appeal.[31] The Court of Appeal in Director of Civil Aviation v Air National consideredthe relevance of the prohibition on the District Court's power to stay and the HighCourt's interim relief jurisdiction, and advised caution in this statutory context. TheCourt expressed it as follows:21We accept that the High Court has jurisdiction to make interim orders in thistype of case However, courts do need to be cautious in this context. As wehave said, the effect of statutory provisions such as s 66(3) of the Act and s106(3) of the Land Transport Act is to deprive the District Court of the powerto grant a stay on an appeal in circumstances where otherwise it would havehad that power. Too ready a resort to s 8 [of the Judicature Amendment Act1972, now s 15 of the Judicial Review Procedure Act 2016] runs the risk ofundermining such prohibitions and creating an incentive for appellants tolaunch judicial review proceedings simply to access the High Court's s 8 [nows 15] jurisdiction. At the very least, this will be a relevant consideration to theexercise of the discretion.[32] In a number of cases, this Court has observed that once the Agency hasdetermined that a licence should be revoked, the private interests of those parties areconsidered secondary to the broader interests of public safety under the Act.22 In threecases, this Court has declined interim relief in such situations, observing that there areseparate statutory appeal rights which preclude a stay, and interim relief is likely to be"exceptional".23 However, where the facts supported strong grounds for judicialreview, and the substance of the appeal appeared to have merit, the Court has heldinterim relief was justified.24[33] I must now determine whether the continuation of interim relief is necessaryto preserve the position of the applicant before proceeding to consider all thecircumstances of the case.20 Foreman Automotive, above n 15, at [52].21 Director of Civil Aviation v Air National Corporate Ltd [2011] NZCA 3 at [30].22 Foreman Automotive, above n 15, at [52] and [53].23 Foreman Automotive, above n 15, at [19]; Cheyenne, above n 17 at [35]; and McCrostie, above n5, at [50].24 Travlon Coachlines (2005) Ltd v New Zealand Transport Agency [2018] NZHC 558; Moffatt vNew Zealand Transport Agency HC Dunedin CIV-2011-412-000679, 28 October 2011; andPohoikura Waitoa Logging Ltd v New Zealand Transport Agency HC Gisborne CIV-2010-416-277, 19 November 2010.The threshold issue[34] The purpose of the necessity test is to give a right of protection on an interimbasis to an applicant who may otherwise be unfairly prejudiced by reason of a delayin obtaining a final hearing.25[35] Boss submits there is a necessity for interim relief to preserve its position. Itsubmits that if interim relief is not granted and the Licences are revoked, Boss willsuffer irreparable harm before it has the opportunity to exercise its legal rights tochallenge the Decision.[36] Boss is a large operation providing passenger services, which is the core aspectof Boss' business. It has a fleet of 73 buses and employs 37 drivers and four additionaldrivers who are contracted regularly. There are four full-time employees in additionto the sole director and shareholder of Boss, Mr Little. If Boss cannot operate due toits Licences being revoked and relief is not granted, Boss will have to close its businessand make its employees redundant, as there is no alternative "caretaker operator"option available in the interim.[37] Boss revealed that one of its core customers is Transdev Wellington Ltd, forwhom Boss provides replacement transportation for the Hutt Valley railway service.Without interim relief, Boss will lose its tender and, it submits, would not regain it ifit was placed in a position of having to revive its business after the appeal or judicialreview proceedings. In addition, Boss has significant outstanding loans. If Boss isunable to operate, it will not have enough cashflow to meet these repayments.Liquidation of the company will be inevitable. There are, therefore, multiple effectson Boss' business, its employees, and its clients if interim relief is not granted to enableit to continue its operations.[38] The Agency accepts that the threshold test is met in this case, as interim ordersare reasonably necessary to preserve the current position of the applicants. However,the Agency submits interim relief is not appropriate in this case and says that hardship25 Woodhouse v Auckland City Council (1984) 2 PRNZ 6 (HC) at 8.to a company cannot offset public safety concerns. I address this submission below inthe second stage assessment.[39] I adopt the two-stage test in Carlton Breweries, as has been adopted in othercases.26 I am satisfied that the first step has been met, that the continuation of interimorders are reasonably necessary to preserve Boss' position until the substantivedetermination of the judicial review.Whether to grant relief considering all the circumstances[40] I now consider the second step, whether interim relief is appropriate in all ofthe circumstances, including the strength and weakness of the judicial review claims,the statutory context and the public and private repercussions of granting relief.[41] The starting point in considering all the circumstances of this case is theAgency's Decision.The Agency's Decision[42] The Agency revoked Boss' Licences under s 30C of the Act, "having regard tothe interests of public safety". Those public safety interests were:(a) the continuing failure to adequately maintain its vehicles to a safestandard; and(b) the failure to ensure that traffic offences, including speeding offences,are not committed by the company or its drivers; or(c) the need to ensure that such offences are appropriately disciplined.[43] The reasons for the Decision were summarised as being threefold:(a) there remains an absence of established systems or processes at Boss toensure that its vehicles are complying with the Act, despite issues withvehicle maintenance being raised by the Agency with Boss at the June2017 meeting;26 See Foreman Automotive, above n 15, at [24]; Moffatt, above n 24, at [16]; and TravlonCoachlines, above n 24, at [12].(b) since receiving the Revocation Proposal in October 2018, the numberof vehicle infringements incurred by Boss demonstrates that thepolicies put in place by Boss are insufficient to ensure compliance withthe Act; and(c) Boss "has an extensive transport-related offending history" withspeeding and logbook infringements by Boss' drivers appearing to betolerated.[44] The Decision noted there were 179 traffic charges against Boss between 2011and 2018, with the most common offence being speeding. The other offences includedexceeding the maximum reading on a distance licence and operating vehicles not upto Certificate of Fitness standard. The frequency of the offending was consideredserious, particularly because a significant portion of Boss' fleet transportsschoolchildren.[45] The Decision focused on the non-compliance with vehicle maintenance,particularly because this issue was identified as a concern in the Revocation Proposaland four vehicles received pink stickers in roadside inspections between 29 Octoberand 28 November, six weeks after the Revocation Proposal was issued.[46] Finally, the Agency's Decision noted that a secondary ground for theRevocation Proposal was that Mr Little was not a fit and proper person to be in controlof a transport service, and that the Agency has now received an application to changethe Person in Control. No significant weight was placed on this application becausethe primary ground for the Revocation Proposal was that Boss, as a transport servicelicensee, was not fit and proper to hold the licences and this continued "to be of majorconcern".The Agency's position[47] For the Agency, Mr Williams reiterates that the Agency's matters of concernare threefold. The first is the vehicle maintenance issues and faults found at roadsideinspections, including instances in 2018 where vehicles were issued with pink stickers.This followed a "warning meeting" in June 2017, where Boss' roadside inspectionpass rate was "only 60 per cent", which was below the national average of 83 per cent.The second concern is the traffic offending of Boss drivers between 2011 to 2018. Thethird matter is the lack of systems in place to manage fatigue and other aspects ofdriver health and safety, including compliance with driving hours and the keeping oflogbooks.[48] The Agency's primary safety concerns focus on 11 incidents in 2018, in whichBoss' vehicles were issued pink stickers by the police at roadside inspections. It wasthese ongoing compliance issues concerning vehicle maintenance which led theAgency to conclude that Boss was either unwilling or unable to comply with thenecessary compliance requirements, demonstrated by the issue of pink stickers to fourvehicles in October and November 2018, up to six weeks after the Agency had issuedits Revocation Proposal.[49] Although Boss has made an application to change the Person in Control, theAgency submits that the employment of Mr Doran as Compliance Officer does notallay its concerns over public safety, because Mr Doran admitted he does notunderstand the meaning of "work time", and feels "hamstrung by senior staff andbelieves he is outside the loop and unable to do his job effectively." The Agency doesnot have confidence that Mr Doran is able to ensure compliance of the company andits drivers, and therefore the risk to public safety still remains.[50] The Agency further submits that the reference to Boss' mechanics and repairersdoes not allay its concerns, as such services are carried out by Boss Transport RepairLtd, which is operated by Mr Little (whom the Agency has deemed not fit and properto be in control of a transport service).[51] Just prior to this hearing, the Agency filed and served two further affidavits, inwhich two of the Agency's officers undertook a review of Boss drivers' checksheetsfor January and February 2019. They concluded that Boss had not complied with thisCourt's conditions that Mr Collinson undertake a daily audit of the checksheets andthat many of the faults listed by Boss' drivers had no record of any inspection of thefault or repairs undertaken. Further, a Boss vehicle had failed its Certificate of Fitnesson 15 January 2019 due to brake faults. This occurred, the Agency says, despite thecondition that predeparture inspections, vehicle condition assessments, and internalsafety checks were carried out for all Boss vehicles.[52] As such, the Agency submits that interim relief pending the substantive hearingof the judicial review proceeding should not be granted, because the Court should doso only in exceptional circumstances, the applicant's grounds for judicial review areonly arguable at best, and hardship caused to Boss through the revocation of theLicences cannot outweigh the significant risks to public safety of Boss' continuedoperation.Boss' position[53] The main thrust of Boss' argument in this interim relief hearing is that therehas been "overreach" on the part of the Agency in relying on instances of alleged non-compliance. Many of these instances, it says, have turned out to be improperlyfounded or illustrate that the Agency has placed too great a reliance upon issues thatdo not give rise to significant public safety concerns.[54] Boss has raised significant factual disputes with a number of the allegedinfringements issued as pink stickers which, it says, related largely to vehicle faultsand maintenance issues. At its highest, Boss says, some relate to oil leaks or fuelsediment around the fuel tank. Boss takes issue with a number of the infringements,both in the period April to November 2018 and the more recent examples in Januaryand February 2019 of alleged infringements or breaches of the interim relief conditionson daily audits and checksheets as being either unjustified or an overreach of theAgency. Boss submits that the recording of the repairs was not a condition imposedby the Court, but it has now been implemented at the Agency's recommendation.Further, regarding the allegation that a vehicle failed its Certificate of Fitness inJanuary 2019 because of a brake failure, Boss submits the vehicle had been undergoingrepairs, including to its brakes, and instead of being taken for a VCA check first, thevehicle went for a Certificate of Fitness. The brakes were repaired further and thevehicle obtained its Certificate of Fitness.[55] Boss also points to the Otaki incident as an example of the Agency's overreachin its treatment of Boss.27 After midnight on 27 January 2019, one of Boss' buses wasstopped and the police issued a pink sticker because the bus was alleged to have a27 See paragraphs [19] and [20] of this judgment.cracked chassis, and Boss had to provide a replacement bus. Ultimately, the Agencyallowed the bus to be driven back to Wellington because it was a "compliance issue".The bus was subsequently cleared on inspection, and no further steps were taken.[56] Boss draws attention to the alleged safety concerns arising from the non-compliance incidents, which seem less obvious than in other comparable cases.28There are a number of examples, which included a bus being driven with an expiredCertificate of Fitness, failing to display a school bus sign when required, driving avehicle with temporary exemption from continuous licensing, exceeding themaximum reading on a distance licence, and operating a bus with a faulty rear door.Boss says the instances of fluid or oil leaks do not raise serious public safety concerns,and explains that residue fuel observed on top of fuel tanks resulted from driversfailing to clean any spillage from the fuel tank when refuelling their vehicles. Otherinstances of oil or fluid leaks are either disputed or taken outside of their factualcontext.[57] I cannot resolve the factual disputes over the non-compliance issues betweenBoss and the Agency on this interim relief hearing. They are more appropriately dealtwith at the appeal hearing in the District Court. I will deal with the non-complianceinfringements in the context of the judicial review challenge only, in as far as theyrelate to Boss' claims.The strength of the judicial review claims[58] Boss submits it has a seriously arguable case in relation to the application forjudicial review for the following reasons:(a) the Agency failed to take into account relevant considerations,including ignoring the specific factual disputes raised in Boss'responses;28 In both Cheyenne and Travlon Coachlines, for example, the attention of the Agency was drawn tothe companies because of serious road accidents. See Cheyenne, above n 17; and TravlonCoachlines, above n 24.(b) the Agency took into account irrelevant considerations, includingvarious incidents from up to seven years prior;(c) insufficient weight was placed on the changes Boss had made toimprove its systems and processes, with undue weight being placed onBoss' delay in making those improvements; and(d) the Decision was unreasonable.[59] In its judicial review proceedings, Boss claims that the Agency did not considerits submissions but has merely paid lip service to them. It says the Agency has nottaken into consideration in its Decision the substantive points made by Boss whichaddress the relevant issue of public safety concerns.[60] I now turn to assess the strength of the applicant's grounds of review. The HighCourt, in the substantive proceedings, will have to consider the following grounds,which have been grouped under three heads of claim.Relevant/irrelevant considerations[61] The principal issue under this review ground is whether the Agency failed totake into account Boss' submissions in relation to the substance of the vehicle safetyinfringements, which formed a substantive part of its Decision. The Decision recordsthat Boss' submissions raise factual disputes about the roadside inspections, includingthe four pink sticker infringements between 29 October and 28 November 2017,(noting that this was after the Revocation Proposal was served). However, thedecision-maker did not consider the substance of Boss' challenges because Boss didnot dispute them with the police at the time. No further inquiry was made aboutwhether any of the pink stickers were significant or raised serious public safetyconcerns, such that the Agency should revoke the Licences in each of the fourrespective circumstances. In the summary of infringements provided by Mr Williams,one of those pink sticker events involved a vehicle continuing a journey with touristpassengers after the pink sticker was issued because there was no immediate risk tosafety.[62] Although not pleaded, I note the provisions under the Act which require aperson who receives notice of a proposed adverse decision by the Agency to ensureall information she or he wishes to be considered is received by the Agency within therelevant time period.29 Section 30X(c) of the Act then provides that the Agency "mustconsider any submissions made", but is not obliged to hear the person on the matter.30[63] This is a matter the Court will have to consider in ascertaining whether thedecision-maker failed to take into account a mandatory relevant consideration by notconsidering the substance of Boss' submissions, or whether she was entitled to rely onthe infringement notices as issued, to determine that Boss was not fit and proper tohold its Licences in the interests of public safety.[64] It is also arguable that the Agency's decision-maker failed to take into accountthe changes that Boss had made to its operation, including a replacement Person inControl and its policy changes and whether those changes were actually "limited" or"insufficient", or too delayed. In addition, Boss claims that the Agency took intoaccount irrelevant considerations, including instances of offending between two and11 years ago.Natural justice grounds[65] Under the natural justice claims, which overlap with the relevant considerationgrounds, the Court may also be required to assess whether there has been a breach ofnatural justice in the way that the Agency:(a) failed to address the factual disputes regarding the infringementsarising from police roadside inspections to ascertain whether they gaverise to concerns in the interests of public safety;(b) failed to address the substance of the four examples of pink stickers inOctober and November 2018, after the issue of the RevocationProposal, when the Agency relied on those four instances to illustrateongoing compliance issues with Boss vehicles; and29 Sections 30W and 30X of the Act.30 Emphasis added.(c) failed to give Boss a fair hearing by disregarding its submissions, bothin relation to roadside infringements and the implementation of policychanges and compliance systems at Boss, because the infringementswere not disputed at the time with the police and its systems wereimplemented "late".[66] There are other natural justice issues which were raised at the interim hearing.These included:(a) the Agency failed to give Boss any warning prior to the RevocationProposal;(b) the meeting in June 2017 was not a warning given by the Agency, butwas a collaborative meeting to assist Boss to achieve a five star ORSrating; and(c) the Agency did not give adequate and sufficient reasons for revokingall of Boss' licences in its Decision.Unreasonableness/proportionality[67] Boss makes a further claim that the Agency's Decision was unreasonable indetermining that the Licences should be revoked. Although the grounds of reviewhave not been fully pleaded, I consider that there is an arguable and potentially strongground of review that the Agency's Decision to revoke the Licences in thesecircumstances was a disproportionate response. While it is not clear whetherproportionality is a distinct head of review, proportionality is considered as a subsetof reasonableness, particularly in cases where penalties are imposed.31[68] Boss has been operating for 14 years since 2004 and has been a significantoperator for a long period of time, with a current fleet of 73 buses. As at June 2017,Boss had a four-star rating on the Operator Rating System (ORS), which rates31 Institute of Chartered Accountants v Bevan [2003] 1 NZLR 154 (CA) at [53] and [55]; and seeIsaac v Minister of Consumer Affairs [1990] 2 NZLR 426 (CA) at [636] and McGuire v Ministryof Justice [2013] NZHC 894 at [78].operators' compliance with primarily maintenance and Certificate of Fitness issues.Boss had received an assessment of "good level of compliance" on the Agency's ORSrating score that was then in use and had a 98 per cent pass rate of their Certificates ofFitness measurements.[69] Boss had these ratings from the Agency when they met in June 2017. Thedecision-maker records that Boss' positive rating was being taken into account, butappears to discount any value attaching to those ratings because "the ORS system is alimited tool which does not include all offences".[70] In all the years of its transport operation, Boss has not had any accidents orinjuries. In the Decision, Boss' accident-free record is not mentioned. Mr Williamssubmits that there should be no requirement for the Agency to wait for an accident orinjury to occur before the Agency takes action in the interests of public safety. Whilethat position is, of course, correct, the facts here contrast markedly with the other casesupon which the Agency now relies, where there have been fatal accidents and seriousinjuries as a result of inadequate vehicle maintenance and undetected serious faults.32[71] Although non-compliance with driver health and safety, including logbooksand hours, driver speeding, and vehicle faults and maintenance are importantcompliance issues, the Agency as a decision-maker, entrusted with a discretion underthe Act, must ensure that serious penalties or consequences are reserved for trulyserious cases. Numerous authorities stress that there must be a correlation betweenoffending and the outcome.33 It will be a question for the substantive hearing whetherlesser options should have been adopted in the circumstances of this case,34 andwhether conditions attaching to a licence, involving compliance systems, auditarrangements, and independent vehicle assessment were not more appropriate optionsfor the Agency to have adopted in these circumstances.[72] In the circumstances, I consider that Boss has a reasonably strong and arguablecase in judicial review and, it appears on a brief overview, it has an arguable factual32 Foreman Automotive, above n 15; McCrostie, above n 5; and Cheyenne, above n 17.33 Battison v Melloy [2014] NZHC 1462 at [58].34 Patel v Dentists Disciplinary Tribunal HC Auckland AP 77/02, 8 October 2002 at [31].challenge to be heard by way of appeal. However, I have undertaken the assessmentof the strength of Boss' judicial review claim, without assessing the strength of its caseon appeal. I note the caution expressed by the Court of Appeal in Air National, thatthe removal of the District Court's grant of stay does not encourage a differentapproach by this Court to the grant of interim relief on judicial review simply becausethe applicant wishes to preserve the benefit of a right of appeal to the District Court.35The overall justice of public safety and private considerations[73] I now turn to balance the public and private interests. I accept that the Agencyis a specialised statutory body with expertise in vehicle safety issues, and that thepublic interest is effectively represented by road safety considerations.[74] Mr Williams, for the Agency, relied on authorities which held that the grant ofinterim relief in these circumstances will be exceptional. He submitted relief shouldnot be granted here. However, all decisions on interim relief are fact-specific and thefacts in those cases need to be examined carefully and compared to the facts here.[75] In Foreman, the applicant operated two vehicle-inspecting organisations.36The Agency had concerns that vehicles that were not up to Warrant of Fitness standardswere being inspected and issued with Warrants of Fitness. The Agency's concernscame to a head when a vehicle which had been repaired by the applicant's vehicleinspector and issued with a Warrant of Fitness was involved in a fatal accident.[76] In Hossain v New Zealand Transport Agency, the Agency revoked a taxi driverlicence for motor vehicle charges for failing to stop when required, failing to remainstopped and operating a vehicle in a dangerous manner.37 Interim relief was declinedbecause of the serious public safety concerns arising from the driving offences of ataxi driver, who transports members of the public.35 Air National, above n 21.36 Foreman Automotive, above n 15.37 Hossain v New Zealand Transport Agency HC Auckland CIV-2011-404-004986, 14 September2011.[77] In McCrostie, the applicant was a goods transport operator which had accrued105 traffic-related offences between October 2004 and March 2018.38 Twenty-five ofthose offences related to operating overloaded and over-dimensional heavy motorvehicles, and 13 involved operating uncertified heavy motor vehicles and vehicles notup to Certificate of Fitness standards.39 There were 38 breaches of the road usercharges and 26 speeding offences. The company had also failed 34 Police roadsidesafety inspections and the faults detected were of concern as they included brakefaults, damaged towing connections, insufficient tyre tread, damaged or deterioratingsuspension components, and non-functioning or non-complying lights or indicators.40In addition, 49 of the company's drivers had been apprehended for a further 105 safety-related offences while driving heavy motor vehicles in connection with the company'stransport services. They included 57 speeding offences, two offences of carelesslyusing a heavy motor vehicle, and various offences involving a failure to comply withtraffic rules or rules relating to logbooks and work time.41 The manager himselfpersonally committed more than 80 traffic offences since gaining his licence in 2000,of which 39 were while driving heavy motor vehicles. He had been given 16 warningsby the Agency in the interests of public safety between 2001 and 2018.42[78] These are all examples of serious public safety concerns. In contrast, and onthe facts before me, I am driven to the same conclusion as Chisholm J in Moffatt vNew Zealand Transport Agency.43 Although Boss is an operator of bus transport,including school buses, and regulatory compliance is essential for public safety, I failto see how there is a compelling public interest in terms of road safety in thesecircumstances that justifies the loss of all licences for this significant transportoperator.[79] If interim relief is not granted, it is clear that the potential private consequencesto Boss are serious. The Decision will require Boss to close its business and ceaseoperating. To put Boss out of business and its employees out of work, before Boss has38 McCrostie, above n 5.39 McCrostie, above n 5, at [7].40 At [8].41 At [9].42 At [11].43 Moffatt, above n 24, at [23].had an opportunity to have its appeal heard by the District Court and its substantivereview application considered by this Court, would be unjust in the circumstances.[80] Boss points to the changes it has made to its operation and policies to addressthe safety concerns raised by the Agency, which include:(a) employing a Compliance Officer, Michael Doran, who is responsiblefor overall compliance at Boss, including training and disciplinaryaction;44(b) implementing a speeding policy whereby offences are reallocated to therelevant driver for payment;(c) implementing a logbook where drivers' hours are now recorded whenpreparing the daily roster;(d) moving to an electronic system for the purchase of road user charges;(e) supplying degreasers and water at the fuel station on site and requiringits drivers to stop filling the fuel tanks after the first "click" and to washdown the tank where there is any residue or overflow;(f) implementing a pre-departure inspection policy and updating its pre-departure checklist;(g) requiring its drivers to each fill in a "bus acceptance and defect card"when undertaking a pre-departure inspection;(h) requiring mechanics to check any faults identified on the "busacceptance and defect cards" and record their determination as towhether the repair requires immediate attention or can be addressedwithin a period of days afterward;44 Mr Doran denies the Agency's allegations at [49]. This is a matter for the substantive hearing.(i) requiring repairers to put their name and signature next to the faultidentified on a "bus acceptance and defect card", with details of thetime and date of the repair undertaken;(j) implementing a system whereby vehicles that are not to be used due tomaintenance requirements or compliance issues are stickered "off theroad"; and(k) continuing to provide further education and training to all drivers andstaff to ensure Boss is a safe and compliant passenger transport service.[81] Additionally, Boss submits it continues to comply with the conditions imposedon the grant of interim relief by both Grice J and Churchman J, which requireindependent assessment and audit of repairs and maintenance to vehicles, andcompliance with driver hours, legislation and logbooks.[82] I am satisfied that it is necessary to grant interim relief to Boss, to preserve itsposition pending the substantive judicial review proceedings. I consider thecombination of the changes made by Boss and the conditions of interim relief addressthe immediate safety concerns of the Agency, including the Agency's concern aboutthe oversight of Boss' repairs and maintenance.[83] Before the substantive judicial review proceedings are heard, in line with theauthorities, Boss' right of appeal should be exercised and its appeal determined.45 Itis important now that an adequate fixture time is obtained in the District Court toproperly hear the appeal lodged by Boss.[84] Counsel for the parties should now submit memoranda as to a proposedtimetable for the substantive judicial review hearing, with a view to having this matterheard as promptly as possible, preferably following the appeal.45 A J Becroft and G G Hall (eds) Becroft and Hall's Transport Law (NZ) (online ed, LexisNexis) at[LTA106.5].Orders[85] Interim relief is granted to Boss Transport Limited (the applicant).[86] The New Zealand Transport Agency (the respondent) is prohibited from takingany further action that is or would be consequential on its Decision to revoke theapplicant's Transport Service Licences.Interim Conditions of Operation[87] The applicant's Transport Service Licences are deemed to continue in forceuntil its application for judicial review of the respondent's Decision has beendetermined, on the following conditions:(a) If and when approved as a Person in Control of the applicant by therespondent, Michael John Doran will operate as the Person in Controlof the applicant in place of Malcolm Little and James Petrie.(b) The applicant is to undertake three-monthly vehicle conditionassessments at Vehicle Testing New Zealand in respect of all vehiclesoperating. This will involve an independent assessment of the repairand maintenance work needed on the relevant vehicle. The vehiclecondition assessment is to include all items that would be regularlyassessed in a Certificate of Fitness inspection, being:Wheel and tyre condition;Mudguards and mud flaps;Brake performance and condition;Structural condition;Lighting performance and condition;Glazing;Windscreen washers and wipers;Doors;Safety belts;Occupant protection systems;Speedometer;Steering and suspension;Exhaust condition and performance;Fuel system condition;Towing connections;Load anchorage systems;Stock crate and crate retention system condition; andValidity of the registration and road user charges labels.(c) The applicant is to conduct internal safety checks at least every threemonths under the supervision of David Collinson, who is an ex-VTNZemployee. Such checks are to include all items that would be regularlyassessed in a Certificate of Fitness inspection, as detailed above.(d) The applicant is to continue undertaking predeparture inspections priorto each use of the relevant vehicle. The predeparture inspections are tocomply with Boss' predeparture inspection policy and checklist andwill include an appropriate inspection underneath the bus. Thesechecks are to be audited daily by, or under the supervision of, DavidCollinson.(e) The respondent is to be provided with copies of the predepartureinspections checklists and the audits on a weekly basis, upon request.(f) All drivers employed by the applicant will at all times comply with allaspects of the driving hours legislation, and any breach of thatobligation shall entitle the respondent to bring this matter before theCourt on two days' notice.[88] Counsel for the parties are to file memoranda as to a proposed timetable for thesubstantive judicial review hearing.[89] Leave is granted to either party to seek to amend the wording of these orders,if circumstances require it.Costs[90] Costs are awarded to the applicant on a 2B basis, together with disbursements.Cull JSolicitors:Wynn Williams, Christchurch for ApplicantMeredith Connell, Auckland for Respondent