KEELEY v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 3464

KEELEY v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 3464 [20 December 2019]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2019-470-132[2019] NZHC 3464BETWEEN JOSEPH KEELEYPlaintiffAND NEW ZEALAND TRANSPORT AGENCYDefendantHearing: (On the papers)Counsel: J L S Shaw and C A Donaldson for Plaintiff/ApplicantJudgment: 20 December 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 20 December 2019 at 11:00 ampursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:Wynn Williams (Christchurch) for Plaintiff/Applicant[1] The plaintiff, a WOF Vehicle Inspector, seeks judicial review of a decisionsuspending his appointment as a Vehicle Inspector for warrant of fitness inspectionswith immediate effect.1[2] The notice of suspension was served on the plaintiff on 17 December 2019.[3] The plaintiff applies for interim relief without notice pursuant to s 15 of theJudicial Review Procedure Act 2016 (the Act). The plaintiff also applies for interimrelief on notice. The plaintiff's intention is to obtain urgent interim relief withoutnotice until such time as the application for interim relief can be heard and determinedon notice.[4] Section 15(1) of the Act empowers the Court to make an interim order if, in itsopinion, it is necessary to do so to preserve the position of the applicant.[5] Section 15(2)(c) includes in the term "interim orders" orders declaring that anylicence that has been suspended in the exercise of a statutory power continues.[6] I have read the plaintiff's affidavit filed in support of the application. I haveconsidered the factual assertions in the affidavit against the dicta of Katz J in ForemanAutomotive Ltd v The New Zealand Transport Agency, with which I respectfullyconcur:2In summary, the approach involves two steps. First, the Court must considerwhether the statutory threshold is met (that orders are necessary to preservethe position of a party). Secondly, the Court has a wide discretion as towhether the grant of relief is appropriate. The exercise of that discretion willusually involve considering all of the circumstances of the case. In this casethe key considerations are the strength of the judicial review claims, theparticular statutory context, and the private and public repercussions ofgranting relief.[7] The plaintiff deposes he operates a business as a WOF Vehicle Inspector. Hehas operated as such for the last 15 years.1 The plaintiff has concurrently filed an appeal against the decision in the District Court.2 Foreman Automotive Ltd v The New Zealand Transport Agency [2013] NZHC 1167 at [24].[8] In September, November and December this year he was subject to reviews byNew Zealand Transport Agency personnel. The notice of immediate suspension ofappointment as a Vehicle Inspector cites clause 3.3(1) of the Land Transport Rule:Vehicle Standards Compliance 2002. This permits suspension with immediate effectif the Transport Agency has reason to believe that a Vehicle Inspector or inspectingorganisation has failed to comply with a condition of their appointment or with therule, and that this presents a significant risk to land transport safety.3[9] The plaintiff deposes that he will suffer severe financial hardship if hisappointment remains suspended. The inspecting of vehicles is a core aspect of hisbusiness and without it he will not, for example, have sufficient income to pay the rentof his premises. The suspension will also affect retention of his customer base andwill impact on him personally since his own income will be greatly reduced. Hedeposes that if the appointment remains suspended he will have no way of meeting hispersonal financial obligations. He will also have to make redundant a staff member.[10] I am satisfied that interim orders are necessary to preserve the position of theplaintiff.[11] I consider also I should exercise my discretion to grant the relief sought. Ithink there is force in the plaintiff's contention that the reasons given by theNew Zealand Transport Agency for the suspension arguably do not demonstrate thatthe plaintiff "presents a significant risk to land transport safety".[12] I am also satisfied that keeping the plaintiff in operation as a WOF VehicleInspector will not compromise public safety.[13] In terms of fairness between the parties, I accept the proposal (that theinterlocutory application without notice for interim relief be short term because it willbe subject to the interlocutory application on notice for interim relief) is appropriate.3 Emphasis added.Decision[14] I grant the interlocutory application without notice for interim relief. I makeorders:(a) Prohibiting the New Zealand Transport Agency from taking any furtheraction that is or would be consequential on the decision to suspend theplaintiff's appointment as a Vehicle Inspector; and(b) Declaring that the plaintiff's appointment be deemed to continue inforce until the plaintiff's appeal of the suspension and application forjudicial review of the suspension have been determined, or until theplaintiff's on notice application for interim relief is determined.[15] I direct the plaintiff to serve the on notice application for interim reliefforthwith.[16] I direct the registry to list the on notice application for interim relief in the firstavailable callover in the New Year.[17] Leave is reserved to the New Zealand Transport Agency to apply to vary orrescind these orders on five days' notice to the plaintiff.[18] Costs are reserved.________________________________Brewer J