NARESH v THE NEW ZEALAND TRANSPORT AGENCY [2015] NZHC 2113

NARESH v THE NEW ZEALAND TRANSPORT AGENCY [2015] NZHC 2113 [2 September 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-1496[2015] NZHC 2113UNDER s 111A of the Land Transport Act 1998IN THE MATTER of an appeal of a decision of his HonourJudge BergsengBETWEEN RAJ NARESHAppellantAND THE NEW ZEALAND TRANSPORTAGENCYRespondentHearing: 2 September 2015Counsel: P F Chambers for AppellantJ G Donkin for RespondentJudgment: 2 September 2015JUDGMENT OF BREWER JSolicitors: Henley-Smith Law (Auckland) for AppellantMeredith Connell (Auckland) for RespondentCounsel: Paul F ChambersIntroduction[1] Mr Naresh became licensed to drive a taxi in October 1975. He has been a taxi driver for most of the subsequent 40 years. He has not been a good taxi driver. Because of his conduct, both in relation to his driving and in relation to criminal offending, there have been periods where his licence to drive a taxi has been revoked. This is one of them.[2] Mr Naresh appealed the respondent's ("the NZTA") decision in this regard tothe District Court. The Court refused the appeal. He now appeals that refusal.Background[3] In January 2009, the NZTA declined Mr Naresh's application to renew his P Endorsement (the endorsement on his driver's licence which permits him to drive ataxi). Mr Naresh appealed and in May 2010 the NZTA withdrew its opposition and granted Mr Naresh a P Endorsement to last until 12 June 2011. It was granted on the basis that if there were any further convictions or infringements, then it might conduct a fresh assessment as to whether Mr Naresh is a fit and proper person to be a taxi driver. Mr Naresh was warned that such an assessment would take into account his entire history.[4] Mr Naresh duly applied to renew his P Endorsement in June 2011. The NZTA declined the application because it was not satisfied that Mr Naresh was a fit and proper person. Mr Naresh appealed, but part way through the appeal hearing, on 9 December 2011, withdrew his appeal.[5] There matters rested until, on 10 October 2013, Mr Naresh made a new application. Mr Peter Stevenson, a senior adjudicator for the NZTA, then undertooka complete review of Mr Naresh's history. The indications are that this had not beenundertaken before. I take the results from the NZTA's synopsis of submissions filedin this appeal:1[Mr Naresh's] history disclosed the following offences or infringements:1 Synopsis of submissions for Respondent in opposition to appeal, dated 25 August 2015, at 1-8- 1.10.(a) 110 traffic-related offences;(b) 12 criminal convictions;(c) three criminal offences which resulted in discharges without conviction;(d) 17 regulatory offences;(e) what was described by Mr Stevenson as "a persistent and lengthyhistory of active antagonism towards, and obstruction of, enforcement officers in execution of the duty, of continuing such behaviour after warnings to cease it; of bringing unmeritorious complaints against officers and appeals against conviction of (sic) sentence and various sanctions and of giving false or misleadinginformation";2(f) 50 documented complaints about his activity and behaviour as a taxi driver; and(g) prior to the decision the subject of the current appeal, he was the subject of six previous transport licensing sanctions brought by NZTA or its predecessor organisations.Having carried a full review of [Mr Naresh's] history and a fit and properperson assessment, Mr Stevenson determined that [Mr Naresh] was not a fit and proper person and accordingly sent [Mr Naresh] a notice of proposal to revoke his P Endorsement and to take the other measures set out above.Pursuant to that decision, [Mr Naresh's] P Endorsement was revoked on14 March 2014, with effect from midnight on 13 March 2014.[6] Mr Naresh appealed the NZTA's decision to the District Court. He gaveevidence, as did Mr Stevenson. Prior to the hearing, Mr Naresh's lawyer and thelawyer for the NZTA put together a Notice of Agreed Facts pursuant to s 9 of theEvidence Act 2006 consenting to the admission of Mr Naresh's history of offending.Schedule A to the Notice of Agreed Facts included references to two occasions on which Mr Naresh was discharged without conviction. The first such occasion was on 17 December 2009 and related to a charge of receiving stolen property. The second occasion occurred on 17 October 2011 and related to a charge of misleading a social welfare officer. On this latter occasion Mr Naresh was ordered to pay reparation of $4,921.93 and witness expenses of $75. Apparently the charge relatedto misleading a social welfare officer in relation to Mr Naresh's income as a taxi driver.2 See the affidavit of Peter Stevenson, Tab 2, at 58 of the Common Bundle of Documents dated 18 August 2015.[7] Subsequently, a further discharge without conviction came to the attention of counsel for Mr Naresh. Counsel, quite properly, sought a telephone conference withthe Judge and brought the discharge without conviction to the Judge's attention. Thedetails were confirmed by a joint memorandum of counsel dated 30 March 2015. The parties agreed that it could be taken into account by the Judge. The charge was male assaults female and the discharge without conviction was entered in December 2012.[8] On 2 June 2015, Judge J Bergseng in the District Court at Auckland delivered his reserved judgment.3 The Judge dismissed Mr Naresh's appeal againstdisqualification but he reduced significantly the prohibition period. That period was eight years. His Honour reduced the prohibition period to six years and backdated it to the expiry of Mr Naresh's last P Endorsement, namely 12 June 2011. In effect, the eight years prohibition period was reduced to about three years.Appeal[9] Mr Naresh appeals against the decision of Judge Bergseng. He is limited by statute as to how he can do that. Section 111A of the Land Transport Act 1998 provides that an appeal from a decision of the District Court in this area is limited to questions of law.[10] On 18 August 2015, counsel for Mr Naresh (who was not counsel at the hearing in the District Court) filed points on appeal. They boil down to two contentions:(a) The Judge erred in law in taking into account the criminal prosecutions that resulted in discharges without conviction, and as a matter of law they should not have been referred to in the Notice of Agreed Facts; and3 Naresh v New Zealand Transport Agency [2015] NZDC 6324.(b) The Judge erred, in any event, in taking into account the discharge without conviction that was notified to him by counsel after the hearing had concluded.Discussion[11] On the first ground, counsel for Mr Naresh relies on s 106(2) of the Sentencing Act 2002 which provides that a discharge without conviction amounts to an acquittal. Therefore, he submits, a discharge without conviction is not a relevant consideration under ss 30C and 30D of the Land Transport Act 1998.[12] Mr Chambers, before me this morning in speaking to this submission, pointsout that "acquittal" is not something which is defined in the Sentencing Act.However, looking at the accepted meaning of the word, it amounts to an absolution. An acquittal, it is submitted, is just that. The Court is not entitled to look behind it to the conduct which brought the charges in the first place.[13] I do not agree.[14] The NZTA is charged under the Land Transport Act 1998 with ensuring that a person who drives a taxi is a fit and proper person to do so. The reason is obvious. It is a matter of public safety. In my view, the inquiry that the NZTA has to make is a real inquiry. That is to say, the assessment has to be a real one and not an inquiry that is limited artificially by the sort of rules that can apply in different contexts where regulatory bodies have restricted mandates. In this area, the Land Transport Act makes it absolutely clear that the criteria for assessment are very broad:30C General safety criteria(1) When assessing whether or not a person is a fit and proper person in relation to any transport service, the Agency must consider, in particular, any matter that the Agency considers should be taken into account—(a) in the interests of public safety; or(b) to ensure that the public is protected from serious or organised criminal activity.(2) For the purpose of determining whether or not a person is a fit and proper person for any of the purposes of this Part, the Agency may consider, and may give any relative weight that the Agency thinks fithaving regard to the degree and nature of the person's involvementin any transport service, to the following matters:(a) the person's criminal history (if any):(b) any offending by the person in respect of transport-related offences (including any infringement offences):(c) any history of serious behavioural problems:(d) any complaints made in relation to any transport service provided or operated by the person or in which the person is involved, particularly complaints made by users of the service:(e) any history of persistent failure to pay fines incurred by the person in respect of transport-related offences:(f) any other matter that the Agency considers it is appropriate in the public interest to take into account.(3) In determining whether or not a person is a fit and proper person for any of the purposes of this Part, the Agency may consider—(a) any conviction for an offence, whether or not—(i) the conviction was in a New Zealand court; or(ii) the offence was committed before the commencement of this Part or corresponding former enactment; or(iii) the person incurred demerit points under this Act or a corresponding former enactment in respect of the conviction; and(b) the fact that the person has been charged with any offence that is of such a nature that the public interest would seem to require that a person convicted of committing such an offence not be considered to be fit and proper for the purposes of this section.(4) Despite subsection (3), the Agency may take into account any other matters and evidence as the Agency considers relevant.30D Additional criteria for small passenger service vehicles and vehicle recovery serviceWithout in any way limiting the matters that the Agency may consider under section 30C(2), when the Agency is assessing whether or not a person is a fit and proper person in relation to any passenger service involving the use ofsmall passenger service vehicles, or to any vehicle recovery service, the Agency must consider, in particular,—(a) any history of serious behavioural problems:(b) any offending in respect of offences of violence, sexual offences, drugs offences, arms offences, or offences involving organised criminal activities:(c) any offending in respect of major transport-related offences, particularly offences relating to safety or to road user charges:(d) any persistent offending of any kind:(e) any complaints in respect of the person or any transport service operated by the person that are of a persistent or serious nature[15] A person, as a matter of law, cannot be discharged without conviction unless they have admitted the offending. But it is the underlying conduct which can be taken into account by the NZTA, and hence by a District Court Judge on appeal.Section 30C(2)(f) ("any other matter that the Agency considers it is appropriate in the public interest to take into account") and s 30C(4) ("Agency may take intoaccount any other matters and evidence as the Agency considers relevant"), as wellas s 30D, make that clear.[16] Further, as Venning J pointed out in Hossain v The New Zealand Transport Agency,4 s 30G of the Act confirms the NZTA may, for the purpose of determining whether or not a person is a fit and proper person, seek and receive any information it thinks fit and consider information obtained from any source.[17] That being the case, the fact that these matters were put before the Judge in a s 9 document is only a matter of process.[18] As to the second ground of appeal, I find that the 2012 discharge without conviction on a charge of assaulting a female should have been before the Judge. Itwas completely appropriate for Mr Naresh's then counsel to advise the Judge of the oversight, counsel agreed in a joint memorandum that it was material the Judge should take into account, and the Judge did.4 Hossain v The New Zealand Transport Agency HC Auckland CIV-2011-404-4986, 14 September 2011.Decision[19] In my view, the Judge made no error of law in taking into account, as he did, the discharges without conviction. His response in reducing the period of disqualification by about five years was measured and, with respect, appropriategiven the historical nature of much of Mr Naresh's poor record.[20] The appeal is dismissed.[21] The NZTA is entitled to costs and I award these on a 2B basis. If the parties cannot agree, they may be calculated by the Registrar.________________________________Brewer J