KEELEY v NEW ZEALAND TRANSPORT AGENCY [2020] NZHC 1768

KEELEY v NEW ZEALAND TRANSPORT AGENCY [2020] NZHC 1768 [22 July 2020]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2019-470-132[2020] NZHC 1768BETWEEN JOSEPH KEELEYPlaintiffAND NEW ZEALAND TRANSPORT AGENCYDefendantTeleconference: 21 July 2020Appearances: C A Donaldson for the plaintiffN S Wood and O E Battell-Wallace for the defendantDate of judgment 22 July 2020JUDGMENT OF PALMER JThis judgment was delivered by me on 22 July 2020 at 10.00am.Pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Wynn Williams, ChristchurchChapman Tripp, WellingtonSuspension and revocation[1] On 17 December 2019, the New Zealand Transport Agency (NZTA) suspendedthe appointment of Mr Joseph Keeley as a Warrant of Fitness vehicle inspector.Mr Keeley appealed to the District Court and brought these proceedings by way ofjudicial review. He also applied for interim relief.[2] On 20 December 2019, Brewer J granted interim relief without notice, topreserve Mr Keeley's position pending determination of an on notice application forinterim relief or until Mr Keeley's appeal and application for judicial review had beendetermined.1 That relief prohibited NZTA "from taking any further action that is orwould be consequential on the decision to suspend the plaintiff's appointment as aVehicle Inspector".2 Brewer J considered there was force in Mr Keeley's submissionthat the reasons given by NZTA for suspension "arguably do not demonstrate that theplaintiff 'presents a significant risk to land transport safety'".3 Brewer J was satisfiedthe interim relief would not compromise public safety.4[3] Later the same day, on 20 December 2019, Brewer J also granted interim reliefon a without notice basis in favour of TTP Taupō Ltd (TTP), Mr Keeley's company.5NZTA had apparently also suspended TTP's appointment as an inspectingorganisation.[4] On 29 January 2020, the parties filed a joint memorandum of counsel agreeingthe interim relief ordered be varied and continued and the proceeding be adjourned.The memorandum stated:(a) NZTA had notified Mr Keeley on 19 December 2019 that it wasconsidering revoking his appointment as a vehicle inspector on thebasis of the same factual matters as his suspension.6 The parties soughtthe adjournment because it was "almost inevitable" that the suspension1 Keeley v New Zealand Transport Agency [2019] NZHC 3464.2 At [14](a).3 At [11].4 At [12].5 Keeley v New Zealand Transport Agency (No 2) [2019] NZHC 3496.6 Joint memorandum of counsel, 29 January 2020, at [6]-[7].decision would be overtaken by NZTA's consideration of revocation.7The parties considered that the suspension decision, and theproceedings based on it, were likely to be overtaken by a decision torevoke (in which case there would be no appointment to suspend) ornot to revoke.(b) Mr Keeley and his lawyers had been mistaken in their impression thatNZTA had suspended TTP's appointment as an inspecting organisation.The parties agreed that no suspension of TTP had been made and thatthe interim orders regarding TTP should be rescinded.(c) A notice of discontinuance would be filed promptly if the parties wereable to resolve matters between them, once NZTA's revocationdecision was made.8[5] On 7 February 2020, Peters J made orders accordingly. So the current interimorders are those made by Brewer J on 20 December 2020 in relation to Mr Keeley andsubject to the additional condition that "Mr Keeley must ensure that he allow at least30 minutes for each warrant of fitness inspection that he carries out". Mr Keeley hasbeen continuing to operate as a WOF vehicle inspector, under TTP's appointment asan inspecting organisation.[6] On 16 July 2020, NZTA issued notices revoking Mr Keeley's appointment asa vehicle inspector and TTP's appointment as an inspecting organisation.Submissions[7] NZTA considers the December 2019 suspension is now effectively spent, asthere is no longer an appointment to suspend. Mr Wood, for NZTA, submits there isno longer any practical utility in continuing the appeal or judicial review of thesuspension decision. He submits the current interim relief does not extend to TTP andthe interim relief for Mr Keeley was granted only in relation to the suspension, not therevocation. Alternatively, Mr Wood submits that if Mr Keeley considers he is7 At [12].8 At [23].protected by the current interim relief he can act on that basis, at his own risk. In theabsence of any indication of the grounds of any proposed further judicial review,NZTA opposes further interim relief. But Mr Wood says NZTA recognises there wouldbe some sense in keeping the proceeding on foot so it can be "re-purposed" if MrKeeley and TTP decide to seek judicial review of the revocation decisions. NZTAconsents to TTP being added as a second plaintiff and the statement of claim beingamended under r 7.77(4) of the High Court Rules 2016 (the Rules).[8] Ms Donaldson, for Mr Keeley, does propose to "re-purpose" the proceedingand agrees that TTP should be added as second plaintiff, leave should be granted tothe plaintiffs to file an amended pleading and leave should be reserved for any partyto apply for further directions if that occurs. But she submits the revocation decisionis in breach of the interim orders of Brewer J regarding Mr Keeley. She submits theorders are currently in force and permit Mr Keeley to continue operating. She submitsthey cannot be superseded by unilateral action by NZTA and no further application forinterim relief is required. She also submits any effort by NZTA to revoke TTP'sappointment would be improper, as it would breach the clear intention of the interimorders to allow Mr Keeley to continue operating and would subvert the secondjudgment of Brewer J regarding TTP. She does not dispute NZTA has the power todecide on revocation in relation to Mr Keeley and TTP but submits those decisionscannot take immediate effect. Ms Donaldson submits a hearing should be scheduledfor up to one day for an on notice application for interim relief to be heard. In themeantime, she submits the current interim orders should be extended to include TTPand to last until the on notice application is determined.Interim orders[9] I agree it is convenient to all parties, and the Court, for the statement of claimto be amended to extend to challenging the revocation decision. I grant leave for TTPto be added as second plaintiff to the proceeding and the statement of claim to beamended under r 7.77(4) of the Rules, in accordance with the timetable set below.[10] The interim orders granted by Brewer J on 20 December 2019 in relation toMr Keeley were necessary to preserve his position in light of NZTA's decision tosuspend him. The terms of the order prohibited NZTA "from taking further action thatis or would be consequential on the decision to suspend the plaintiff's appointment asa Vehicle Inspector". I do not consider that order necessarily prevents NZTA fromexercising its separate power of decision to revoke Mr Keeley's appointment (orTTP's appointment). So I do not consider NZTA's revocation decision breaches thecurrent court orders. Mr Keeley and TTP will need to apply afresh for interim ordersin relation to the revocation decision. I set out a timetable for that to occur below.[11] However, the effect of the revocation decision is the same as the suspensiondecision on a day to day basis. It just has a longer (potentially permanent) effect.NZTA has provided no evidence contrary to the evidence offered by Mr Keeley thatpersuaded Brewer J to grant interim orders in relation to the suspension decision.I have reviewed that evidence and agree that interim interim orders continue to bejustified pending determination of the foreshadowed application for interim orders.I also consider there is no reason for them not to be extended to TTP. That is necessaryin order for the orders in relation to Mr Keeley to be effective. And it has previouslybeen the subject of consideration by the court, when Brewer J made such orders untilthat were rescinded only when the Court was advised they were unnecessary.[12] Accordingly, I make the following orders under s 15 of the Judicial ReviewProcedure Act 2016:(a) I prohibit NZTA from taking any further action consequential on itsrevocations of the appointments of Mr Keeley as a vehicle inspectorand TTP Taupō Ltd as an inspecting organisation, until any applicationfor interim orders made by 31 July 2020 is determined by the HighCourt.(b) Order (a) is subject to the condition that Mr Keeley must ensure that heallows at least 30 minutes for each warrant of fitness inspection that hecarries out.Timetabling directions[13] Ms Donaldson seeks a hearing of interim orders for one day. I do not considera whole day should be necessary if counsel are succinct. I will be back in Tauranga inthe first week of September 2020 and can hear the application, if one is required, overhalf a day then. My familiarity with the issues will also reduce the time required.I direct:(a) By 4 pm Friday 31 July 2020, the plaintiffs will file and serve anamended statement of claim, application for interim orders andsupporting affidavit.(b) By 4 pm Friday 7 August 2020, counsel for the parties will file a jointmemorandum, for my attention, regarding timetabling to, length of timerequired for, and likely required timing of, a substantive hearing of theapplication for judicial review.(c) By 4 pm Friday 14 August 2020, NZTA will file and serve any noticeof opposition and supporting affidavits.(d) By 4 pm Friday 21 August 2020, the plaintiffs will file and serve theirwritten submissions.(e) By 4 pm Friday 28 August 2020, NZTA will file and serve its writtensubmissions.(f) At 2.15 pm Friday 4 September 2020, the application for interimorders will be heard at the Tauranga High Court.(g) The parties have leave to apply for further directions. Any such requestshould be directed to me.Palmer J