COROMANDEL PENINSULA COURIERS LIMITED v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 1545

COROMANDEL PENINSULA COURIERS LIMITED v NEW ZEALAND TRANSPORT AGENCY [2019]NZHC 1545 [3 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-001000[2019] NZHC 1545UNDER The Judicial Review Procedure Act 2016.In the matter of a decision made pursuant to the LandTransport Act 1998.BETWEEN COROMANDEL PENINSULA COURIERSLIMITEDApplicantAND NEW ZEALAND TRANSPORT AGENCYRespondentHearing: 2 July 2019Counsel: S Khan and M Orange for ApplicantA McClintock for RespondentJudgment: 3 July 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on 3 July 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors Fortune Manning, AucklandMeredith Connell, Auckland[1] Coromandel Peninsula Couriers Limited (the Company) operates a truckingbusiness. It carts freight between Thames, Auckland and Matamata. On 23 May 2019,the New Zealand Transport Agency (the Agency) revoked the Company's transportservice licence. The Company has filed an appeal to the District Court and seeksjudicial review in this one. The latter will be heard 1 October 2019. The Companyseeks relief until then; essentially, suspension of the Agency's revocation.1[2] The Company contends it would suffer irreparable prejudice if it does not haveinterim relief. In short, it would go out of business. Twenty-one employees wouldlose their jobs. Even successful review would be Pyrrhic.[3] The Agency acknowledges these points but resists interim relief. It contendsthe Company's private interests do not outweigh those of public safety, and the lattermay be compromised if the Company continues to operate until 1 October (anddelivery of the subsequent judgment). Consequently, the issues are important butnarrow. Hence the brevity of this judgment.[4] Little background is necessary or desirable. The Company has operated afreight business for at least 23 years. It has 11 trucks, four trailers and several vans.And, as observed, 21 staff. The Agency believes the Company is not adequatelymaintaining its fleet. The Agency also believes this may compromise public safety.These concerns are traceable to 2014. The Agency considers the Company has beengiven many opportunities to remedy its concerns—but has not.[5] Annual audits are unpromising. For example, in 2017, the Agency found noneof the six trucks it inspected, passed. All had faults. Seventeen per cent of these faultsconcerned brakes. The 2018 audit yielded similar results. Of the five trucks inspected,only one passed. Two of four trucks could have been "pink stickered". A pink stickermeans a vehicle is considered unroadworthy. Both audits revealed oil leakage. Thephenomenon is significant because it is readily observable, in turn implying theCompany has not been checking its fleet daily, as it ought to.1 On 31 May 2019, Hinton J made an interim order preserving the Company's position until thehearing before me.[6] The District Court is yet to allocate a date for the appeal. This has lesssignificance than might otherwise have been so because s 106(3) of the Land TransportAct 1998 provides every decision of the Agency appealed continues in force pendingdetermination of the appeal. The provision does not truncate the High Court's abilityto grant interim relief pending judicial review, but, unsurprisingly, influences itsexercise of that relief. Any other approach risks creating "an incentive for appellantsto launch judicial review proceedings simply to access the High Court's [interim relief]jurisdiction".2 Relatedly, a transport service licence is a privilege, not a right, in asystem devised to promote public safety.3[7] Because of all this, Courts are slow to grant interim relief in cases like this.They do so only exceptionally.4[8] I am satisfied this case is sufficiently exceptional to warrant interim reliefbecause of four reasons, taken together.[9] First, the Company's judicial review claim is arguable. This observationshould not be misunderstood as an endorsement of the proposed grounds of review,still less their number. These present as something of a Hydra. However, an arguableclaim does exist. It arises from this combination:(a) The Company's safety record had been improving, a proposition theAgency acknowledged to the Company, and me.(b) The Agency might have placed considerable weight on its 2018 audit.It is possible this audit can be impeached. By chance, one of the trucksthe Agency failed was stopped and inspected earlier that day by Police.The Police report implies they had no safety concerns about the truck.2 Director of Civil Aviation v Air National Corporate Limited [2011] NZCA 3, [2011] NZAR 152at [30].3 Cheyenne Haulers Ltd v New Zealand Transport Agency HC Auckland CIV-2001-404-2456, 12May 2011 at [41].4 See, for example, McCrostie Trucking Ltd v New Zealand Transport Agency [2018] NZHC 2736,[2018] NZAR 1840 at [50]..(c) The decision to revoke the Company's licence came only six monthsafter the Company had submitted a plan to the Agency to improve itsperformance, and nine months after the Company was given finance tomodernise its fleet.(d) The Agency had given the Company a four-star operator safety rating.This rating was in force when the Agency revoked its licence. A four-star rating is given when a company has "a good level of compliance"with land transport safety legislation. According to Agency literature,the rating reflects "safety risk". A host of things go into this mix,including certificate of fitness inspections, roadside inspections, andcertain types of offending.[10] It is arguable [9](a), (c) and (d) were given inadequate weight, and the 2018audit too much weight, especially given [9](b).[11] To be clear, the Agency may have a complete answer to all these points, andmore. For example, it told me its operator safety rating was of questionable utility. Ialso record the Agency's submission only one of the Company's four proposedgrounds was arguable "at best". These are for another day. Again, the Company'swritten recital of proposed grounds may not capture its better points.[12] Second, the Company's fate is all but certain if interim relief is declined. Sotoo the fate of its employees.[13] Third, public safety is unlikely to be compromised in the next three months ifthe Company continues to operate. It took the Agency five and a half months to advisethe Company of its 2017 audit. It took the Agency almost two and a half months toadvise the Company of its 2018 audit (though the Christmas vacation did intervene).These delays are not offered as a criticism of the Agency. Rather, they are offered ascontext, and as a tonic to the concerns that might otherwise reflexively accompany theconcept of public safety. Here [9](d) is again relevant.[14] Fourth, conditions can address the Agency's concerns over the next threemonths. These are more stringent than the Agency's typical oversight. The Companyagrees to them.[15] Interim relief is granted, subject to these conditions:(a) The Company must inspect its fleet daily and, every week, give theAgency its daily "walk round" sheets.(b) If a daily inspection reveals a fault, the Company must promptlyprovide the Agency evidence that fault has been fixed.(c) The Company must check its fleet and promptly give the Agency avehicle check sheet every time it does so.(d) If a check reveals a fault, the Company must promptly provide theAgency evidence that fault has been fixed.(e) The Company must promptly alert the Agency of any:(i) Incident involving any of its drivers.(ii) Additions or other changes to its fleet.[16] The Agency may apply to rescind interim relief if:(a) The Company breaches any of the conditions above; or(b) Circumstances materially change before 1 October 2019._________________________Downs J