STAN SEMENOFF LOGGING LIMITED v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 1133

STAN SEMENOFF LOGGING LIMITED v NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 1133 [23May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-480[2019] NZHC 1133BETWEEN STAN SEMENOFF LOGGING LIMITEDApplicantAND NEW ZEALAND TRANSPORT AGENCYRespondentHearing: 20 May 2019Counsel: D J Neutze and S Corlett for ApplicantP F Wicks QC and R McCoubrey for RespondentJudgment: 23 May 2019JUDGMENT OF WHATA JThis judgment was delivered by me on 23 May 2019 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Brookfields, AucklandMeredith Connell, Auckland[1] Stan Semenoff Logging Limited (SSL) is a trucking company. On 15 March2019, the New Zealand Transport Agency (NZTA) gave notice of its decision to revokeSSL's transport (goods) service licence (TSL) because it found that the "Persons inControl" of the trucking operations are not fit and proper having regard to publicsafety. SSL disputes this. It claims the NZTA did not have a proper basis in law or factfor this conclusion. SSL appealed the decision to the District Court and commencedrelated judicial review proceedings in this Court.[2] On 22 March 2019 Woolford J granted an urgent interim order preservingSSL's position, subject to conditions, until further order of the Court. This judgmentexamines whether that interim order should be maintained pending the substantivehearing on the judicial review claim.Background[3] SSL is the largest logging haulage company in Northland and is responsiblefor 50 per cent of Northland's wood flow and log haulage. SSL's business involvesthe transportation of logging material from the forest to a port in Northland. It employsapproximately 55 people, of whom 48 are logging truck drivers. It maintains a fleetof 55 vehicles and has contracts with over 25 companies, including suppliers andlogging operators throughout Northland.[4] Over the period July 2016 to March 2019 the NZTA engaged in an ongoingaudit of SSL's operations. This involved two separate audits in 2016 and 2017 ofSSL's operations. The audits included an examination of logbooks, GPS records andtimesheets. SSL responded by offering up action plans which included measures suchas checking all log books between specified periods and other random checks. Theeffectiveness of the action plans appeared to be confirmed by NZTA's OperatingRating System (ORS) rating of SSL, issued on 26 July 2018. SSL received a four (outof five) star rating and a "good level of compliance".[5] The NZTA had a different impression of SSL's performance. On 1 August 2018the NZTA briefed the Cabinet Ministers on the Agency's intention to revoke SSL'sTSL. This was followed by the publication to SSL of the 2017 audit report on 8 August2018. The report noted, among other things:(a) The traffic offence history of SSL comprising 116 traffic offences in theperiod 1 July 2015 to 18 July 2018;(b) 158 alleged log book infringements by drivers NZTA discovered as partof the analysis of the eight driver's log books, GPS records and timesheets in the 2017 audit.(c) "A large number" of speeding compliance incidents identified by SSL'soperator rating system (ORS) score, traffic offence reports, speedcamera reports and GPS data;(d) High percentages of vehicles failing to comply with certificate ofcompliance requirements, especially in relation to brake systems;(e) In the period 1 July 2015 to 30 June 2017 142 (of 472 vehicles) failedroadside inspections and 73 police infringements were incurred.(f) A recommendation that the audit report be referred to the appropriatemanager within the NZTA.[6] On the following day, NZTA served on SSL a notice of its proposal to revokeSSL's licence. NZTA proposed to revoke SSL's licence on the basis that the twodirectors of SSL, Stan Semenoff and his son, Alexander Semenoff, together with thegeneral manager of SSL, Daron Turner, were not fit and proper persons to have controlof the transport service. The reasons for the proposal to revoke were listed as follows:8 (a) An audit in 2016 (2016 Audit) identified a number of areas of concern inrelation to the transport service it was carrying out. These included:(i) Non-compliance within the Company with work time rules.The 2016 Audit identified a number of drivers who wereexceeding five and a half hours of work without having a 30-minute break. In addition, the 2016 Audit identified a numberof drivers who were exceeding 13 hours of work time in acumulative work day.(ii) Non-compliance within the Company with logbookrequirements which included the entry of fabricated and/orincorrect information in relation to drivers' rest times. Otherissues identified included drivers failing to record days off,failing to ensure logbook information was clear and legibleand failing to record locations in their logbooks.(iii) A failure to adequately monitor the drivers' speeds, as GPSdata showed that drivers were exceeding the speed limits.(b) A number of the issues outlined at 8(a) above were shown to becontinuing in the fleet when the Agency conducted a follow-up visitto the Company on 10 November 2016, the results of which wereprovided to Mr Turner on 10 November 2016. Specifically:(i) Drivers were still failing to comply with work time and resttime rules and it was evident that the Agency's expectedoutcomes previously identified had still not been met.(c) A number of the issues outlined at paragraph 8(a) above were againshown to be continuing in the audit in 2017 (2017 Audit). Specifically:(i) It was evident that the Agency's expected outcomespreviously identified still had not been met.(ii) It was evident that the Company was not taking a proactiveapproach to monitor the drivers' work times to ensurecompliance with the work time rules. A sample of logbookpages, timesheets and GPS data from eight drivers wasanalysed and all of those drivers had failed to comply withwork time rules.(iii) It was evident that the Company was not taking a proactiveapproach to monitor the drivers' logbooks to ensurecompliance with logbook rules. A sample of logbook pagesfrom eight drivers was analysed. All eight drivers had failedto comply with logbook rules.(iv) Drivers were continuing to exceed the speed limit.(d) The Company has accumulated numerous traffic charges in the periodfrom 1 July 2015 until 18 July 2018, including for exceeding themaximum gross weight limit on numerous occasions and for vehiclesnot being up to Certificate of Fitness standard.(e) Failures in the way in which a company functions are relevant to thefit and proper person assessment of those in control.[7] SSL was invited to make submissions by 5pm 30 August 2018.[8] On 23 August SSL, through its lawyers, sought information in relation to theaudits. It received an initial response on 30 August 2018 and a substantive responseon 5 September 2018. SSL then made its submissions on 14 September 2018. SSLidentified that:(a) the ORS run by NZTA provided an accurate assessment of an operator'srisk to road safety, with SSL's ORS scores demonstrating that it hadcontinually improved since the 2016 audit and was currently consideredto have a "good level of compliance";(b) speeding had been addressed by the installation of equipmentpreventing acceleration beyond 90 kilometres an hour on 95 per cent ofits fleet, and by emphasising the importance of not speeding at healthand safety meetings and in SSL's text message distribution system; and(c) there was a commitment to health and safety by the Persons in Control(evidenced by records of awards in this regard) and a reputation ashighly respected people within the health and safety space and loggingindustry.[9] NZTA was not content with SSL's explanations. NZTA wrote to SSL referringto an "alternative analysis" of GPS data reviewed as part of the 2017 audit. Thealternative analysis identified periods where vehicles were stationary in the forest andopined that as drivers were required to comply with the Approved Code of Practicefor Safety and Health in Forest Operations (the Code), those stationary periods couldnot amount to rest time.[10] SSL refuted NZTA's points noting:(a) the Code was considered best practice, though not mandatory and didnot contain any actions haulage drivers were required to take in theforest. Therefore, NZTA's conclusion, in the alternative analysis, thatdrivers could not be taking rest times was incorrect; and(b) of the eight drivers whose log books were analysed by NZTA in the2017 audit and in the alternative analysis, seven of them no longerworked for SSL.[11] NZTA remained unconvinced and on 15 March 2019, it gave notice of itsdecision to revoke SSL's licence with effect from midnight on 22 March 2019. Thereasons for the decision made by Ms Debra Despard are recorded as follows:(a) There remains an absence of reliable systems or processes within[SSL] to ensure that its drivers are complying with the Act and theRules. This is despite issues with driver non-compliance, and the needfor systems or processes to be put in place and properly monitored,being raised with the Persons in Charge on multiple occasions (s30C(2)(f)).(b) There are pervasive logbook issues among the drivers of [SLL]evidencing, at the very least, false logbook entries that are not beingaddressed by [SSL] and, at worst evidence showing that a failure totake proper breaks, working over the maximum number of hours andfailure to complete the logbooks as required is commonplace withinthe company and undisciplined by its management. The lack ofsystems and processes in place (as identified at (a)) means that theseissues are not being picked up and addressed by [SSL] itself (s30C(2)(f)). Indeed, it appears that the attitude to rest time is driven bythe Company itself.(c) In addition, [SSL] has an extensive transport-related offending history(s 30C(2)(b), LTA). Speeding by its drivers appears to be tolerated.(d) Rather than address the issues identified by the Agency [SSL] haseither stated that it will make improvements, which have not then beenmade – certainly not on a consistent basis – or it has sought to argueeither that its drivers are not breaching the Act or Rules, or that theirbreaches should be overlooked for practical reasons. I consider thereis clear evidence that drivers for [SSL] have been breaching the Actand the Rules, and that [SSL], a large company that has operated underthe Licence since 24 January 2014 and should be well aware of theprovisions contained in the LTA and the Rules, has failed to addressthese issues (s 30C(2)(f)).[12] The Revocation Decision also noted that while NZTA considered SSL's goodORS rating, it is a "limited tool" which does not include all offences in creating arating. This view marries with the NZTA notification to operators in December 2018that it intended to review the ORS. NZTA also did not consider it relevant that SSLno longer employed seven of the eight drivers from the 2017 audit.SSL's allegations[13] SSL claims:(a) The Revocation Decision was based on an error of law in concludingthat the Licence was to be revoked on the basis that Persons in Controlof SSL were not fit and proper persons and in particular:(i) NZTA has explicitly acknowledged that there are no transportrelated offences, serious behavioural problems or criminalhistories of the Persons in Control (Alexander Semenoff, StanSemenoff and Daron Turner) that were of concern to NZTA.(ii) None of the matters referred to in s 30C(2)(a) apply to any ofthe Persons in Control.(iii) For a matter under s 30C(2)(f) to be taken into account, it mustrelate or be specifically linked to the person who is said to beunfit; general alleged failings of a corporate entity in which theperson is involved cannot be assumed to make a person incontrol unfit for the purposes of s 30C(2).(iv) All concerns NZTA has about SSL relate to alleged generalfailings of SSL, or its employees, without any or sufficientevidence to establish that any of the individual Persons inControl was responsible for or directly involved in all or any ofthe alleged failings.(v) There was no evidence available to NZTA to conclude that anyof the Persons in Control was not a fit and proper person interms of s 30C.(b) In making the Revocation Decision, NZTA had failed to take intoaccount relevant considerations, namely:(i) NZTA failed to take into account the fact that seven of the eightdrivers from the 2017 Audit no longer work for SSL, stating thatthis information was not relevant, when that must be relevant towhether SSL presents an ongoing significant risk to publicsafety.(ii) NZTA failed to take into account the continued attention of SSLto speeding by use of the text message distribution system andthe installation of equipment to limit speed on vehicles, wheresuch factors were plainly relevant to whether SSL presented asignificant risk to public safety.(iii) NZTA wrongly dismissed its own ORS rating as a limited tool,when it provided a reliable guide of SSL's safety risk bearing inmind the number of vehicles in its fleet and the kilometrestravelled.(iv) NZTA failed to take into account the fact that there is noevidence that fatigue has ever been an issue in an incidentinvolving an SSL driver.(c) In making the Revocation Decision, NZTA took into account irrelevantconsiderations, namely:(i) NZTA, in determining that rest time and logbook compliancewas of concern to it, relied on the Code, which is a best practiceguide only for forestry operators and is irrelevant to whetherPersons in Control are fit and proper; and(ii) in determining that the Persons in Control were not fit andproper persons, NZTA relied on general alleged failures of SSLas a corporate entity, without considering whether each of theindividual Persons in Control was in fact responsible for SSL'salleged failures. NZTA's finding that the Persons in Control arenot fit and proper persons is a decision that no reasonabledecision-maker could have reached given the evidence beforeit.[14] NZTA denies each of these claims.Threshold[15] As SSL stated, s15 of the Judicial Review Procedure Act 2016 (JRP Act) allowsthe Court to make interim orders of the kind sought by SSL if, in the Court's opinion,"it is necessary to do so to preserve the position of the applicant".1 Interim ordersinclude a declaration that any licence that has been revoked continues and, wherenecessary, it is deemed to have always continued.2 An order under this section maybe made subject to such terms and conditions as the Court thinks fit, and be expressedto continue in force until the application is finally determined.3[16] If I am satisfied orders are necessary to preserve SSL's position, then I mustconsider whether relief should be granted.4 The only issue in dispute is whether publicroad safety considerations make it necessary to refuse relief. The closure of SSL, lossof jobs and livelihoods and likely business interruption are otherwise compellingreasons to grant interim orders.The issues[17] Mr Neutze focused the applicants' case for interim relief on their primarycomplaint, namely that the NZTA did not properly direct itself to the thresholdrequirements for finding each of the "Persons in Control" were not fit and properpersons. As foreshadowed, it is also common ground that but for public safetyconcerns, if SSL has an arguable case, ongoing interim orders preserving SSL'sposition should be made.[18] There are therefore two key issues to resolve:(a) Whether SSL has an arguable case that the NZTA erred in law in findingthat the "Persons in Control" are not fit and proper persons.1 Section 15(1) of the JRP Act.2 Section 15(2)(c) of the JRP Act.3 Section 15(4) of the JRP Act.4 Foreman Automotive Ltd v New Zealand Transport Agency [2013] NZHC 1167 at [25].(b) Whether interim orders should be declined on public safety grounds.Scope of judicial review[19] As will shortly be explained, the central requirement of law that will be underscrutiny in this case at the substantive review hearing is the requirement to be"satisfied" that the "Persons in Control" of SSL were not "fit and proper person(s)".This requirement to be satisfied also requires regard to specified matters. Given theterminal effect of a negative finding for SSL, it is the responsibility of this Court onreview to ensure that this legislative condition is fulfilled. As the Supreme Court saidin McGrath, that is an assessment of substance and requires an assessment of theobjective reasonableness of that finding.5 As I am engaged in an assessment for thepurposes of interim relief only, I need only be satisfied that there is a reasonablyarguable case that this legislative condition was not fulfilled.Legal framework[20] The purpose of the LTA is to promote safe road user behaviour and vehiclesafety; to provide for a system of rules governing road user behaviour, the licensingof drivers and technical aspects of land transport; to recognise reciprocal obligationsof persons involved; to consolidate and amend various enactments relating to roadsafety and land transport; and to enable New Zealand to implement internationalagreements relating to road safety and land transport.6[21] To obtain a TSL, a person must make an application in accordance with theregulations and rules and accompanied by the fee (if any) required by the regulations.7After receiving the application, the Agency will grant it only if they are satisfied that:8(a) the applicant is a fit and proper person to hold a TSL;(b) any person who is to have, or is likely to have, control of the transportservice is a fit and proper person to have such control; and5 McGrath v Accident Compensation Corporation [2011] NZSC 77 at [31].6 "Our Legal Framework" NZ Transport Agency <www.nzta.govt.nz>.7 Land Transport Act 1998, s 30K.8 Land Transport Act 1998, s 30L.(c) any representative meeting the requirements of subsection (1A)(b) is afit and proper person to be a representative; and(d) the applicant or any person who is to have control of the transportservice is the holder of the appropriate certificate (if any) required bythe regulations or the rules; and(e) all relevant requirements of this Act, the regulations, and the rules havebeen complied with.[22] The LTA provides a detailed scheme of rules and regulations directed toachieving the Act's purpose. These include the Land Transport Rule: Work TimeLogbooks 2007 rules (Rules) which place restrictions on how long drivers ofcommercial or heavy motor operators may work.[23] In addition to setting out offences for drivers who do not comply with the LTAand the Rules, Part 6C sets out offences relating to the chain of responsibility.Relevantly, s 79T provides that every person commits an offence where the person, byact or omission, directly or indirectly causes or requires a driver to fail to comply withthe rest time requirements prescribed in the Act or the rules if that person knew orshould have known that the rest time requirements would not be or would likely notbe, complied with.[24] The LTA then lays out a careful scheme for the removal of TSLs for non-compliance with, among other things, the Rules. Section 30C states:30C General safety criteria(1) When assessing whether or not a person is a fit and proper personin relation to any transport service, the Agency must consider, inparticular, any matter that the Agency considers should be takeninto account—(a) in the interests of public safety; or(b) to ensure that the public is protected from serious ororganised criminal activity.(2) For the purpose of determining whether or not a person is a fit andproper person for any of the purposes of this Part, the Agency mayconsider, and may give any relative weight that the Agency thinksfit having regard to the degree and nature of the person'sinvolvement in 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-relatedoffences (including any infringement offences):(c) any history of serious behavioural problems:(d) any complaints made in relation to any transport serviceprovided or operated by the person or in which the person isinvolved, particularly complaints made by users of theservice:(e) any history of persistent failure to pay fines incurred by theperson in respect of transport-related offences:(f) any other matter that the Agency considers it is appropriatein the public interest to take into account.(3) In determining whether or not a person is a fit and proper personfor 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 commencementof this Part or corresponding former enactment; or(iii) the person incurred demerit points under this Act or acorresponding former enactment in respect of theconviction; and(b) the fact that the person has been charged with any offencethat is of such a nature that the public interest would seemto require that a person convicted of committing such anoffence not be considered to be fit and proper for thepurposes of this section.(4) Despite subsection (3), the Agency may take into account any othermatters and evidence as the Agency considers relevant.[25] Control is defined in s 2 of the LTA as follows:control, in relation to a transport service, means direct or indirect control ofthe management of the whole or part of the transport service by a shareholdingor the holding of any position (however described) in the management of thewhole or part of the transport service that gives the person a significantinfluence on the operation of the whole or part of the service (whether or notother persons are also involved)[26] The power to remove a TSL is then conferred by s 30S as follows:30S When Agency may revoke transport service licence(1) The Agency may revoke a transport service licence if the Agencyis satisfied that—(a) the holder of the transport service licence is not a fit andproper person to be the holder of a transport service licence;or(b) any person who has control of the transport service is not afit and proper person to have control of the service; or(c) any representative who lives in New Zealand is not a fit andproper person to be a representative; or(d) any driver is not a fit and proper person.(2) (1A) Subsection (1)(c) does not apply in relation to drivers whoare facilitated to connect with passengers under a facilitated cost-sharing arrangement.(3) Subpart 5 applies to a decision to revoke a transport servicelicence.[27] Subpart 5 deals with the process of making adverse findings about, amongother things, persons in control. The NZTA must notify a proposal to make an adversefinding to the person directly affected. A copy of this notice must be provided to anyperson on the basis of whose character the adverse finding arises if that person is notthe person directly affected.9 The notice must include the grounds of the proposeddecision and specify a date for submissions, the date any decision is likely to takeeffect and that person's right of appeal.10 The person notified is then responsible forensuring that all information that the person wishes to have considered by the NZTAis provided within the time specified in the notice and the NZTA must consider anysubmissions made by that person.11[28] The NZTA must determine whether to make the proposed adverse decisionand as soon as practicable thereafter, notify the person directly affected and any other9 Section 30W(2).10 Section 30W(1).11 Section 30X.person whose character is subject to the adverse finding, of its decision and the rightof appeal.12[29] The right of appeal to the District Court is conferred by s 106. Reflecting thepublic interest significance of adverse decisions, s 106(3) of the LTA provides that:Every decision of the Agency appealed against under this section continues inforce pending the determination of the appeal, and no person is excused fromcomplying with any of the provisions of this Act on the ground that any appealis pending.An arguable case?[30] Mr Neutze made the following key points:(a) The decision to revoke was based on s 30S(1)(b) which requires afinding that a person in control is not fit and proper, having regard tothe matters listed in s30C.(b) The decision maker could not base the decision to revoke on any of thematters listed at s 30(C)(2)(a)-(e) or (3) dealing with personal offendingor personal non-compliance.(c) The decision maker must have relied on s 30C(2)(f), that is the powerto consider "any other matter the Agency considers it is appropriate totake into account".(d) The NZTA was wrong to rely on s 30C(2)(f) in this way because "anyother matter" must still demonstrably relate to personal actions thatbear on that person's fitness.(e) Even if the NZTA could rely on matters that are not personal to theaffected person's fitness, it was not sufficient to simply refer, as thedecision maker did, to SSL's record of non-compliance unless it couldbe shown that the non-compliance was related to that person.12 Section 30Y.(f) While the decision maker attributed SSL's alleged non-compliances toMessrs Semenoff and Mr Turner, there was no clear evidence cited bythe decision maker directly linking any of them to those alleged non-compliances in terms of active encouragement or in terms of toleratingnon-compliance.(g) Moreover, the decision maker appears to have wrongly assumed that itwas not necessary for her to be satisfied about the fitness of each personin control and rather simply assumed that evidence of SSL's non-compliance and allegedly poor performance was sufficient.(h) It must therefore be seriously arguable the decision maker erred in lawor otherwise acted unreasonably in finding that Messrs Semenoff andMr Turner were not fit and proper persons.[31] Mr Wicks QC responds that:(a) Section 30C expressly envisages consideration of "any other matter"the Agency considers "appropriate" or "relevant" and there is nothingin the statutory language or framework which requires the assessmentof fitness to be limited to personal non-compliance.(b) This construction of s 30C is consistent with the public safety purposeof the LTA.(c) Messrs Semenoff and Mr Turner were indisputably in control of SSLthroughout the audit period.(d) While the reference to s 30C(2)(b) in the decision which refers tooffending by the Persons in Control was wrong, there was clearevidence of ongoing failure by SSL throughout the audit period tocomply with road regulations. This provided an ample basis for thefinding that the persons in control of SSL are not fit and proper personsto hold a TSL.(e) Accordingly, there was no arguable error of law or evaluation.Evaluation[32] I agree with Mr Wicks that the purpose and scheme of the LTA envisage a broadinquiry at s 30S (supplemented by s 30C) into the fitness of Persons in Control oftransport services. This inquiry is not limited to personal acts of non-compliance oroffending. Section 30C(2)(f) and (4) make it clear that other factors may be relevantto the assessment of fitness. I also agree that what might be called systemic failureover a lengthy period to comply with road regulations, including the Rules could be aground for finding that a person in control of the transport service is not a fit and orproper person to control that service. I am also satisfied, for the purposes of judicialreview, that there is sufficient evidence of systemic failure given the nature, scale andduration of the non-compliances – see the findings of the NZTA noted at [6] and [11]above. While Mr Turner for SSL disputes the accuracy of some of the findings madeby Ms Despard, on the evidence available to me, NZTA's concern at the performanceof SSL in the years 2016 and 2017 is justified. Mr Neutze claims to the contraryappear, at least to me, to be unarguable in a judicial review context.[33] But in this case, the requirement at s 30S to be "satisfied" that the person incontrol is not a fit and proper person to have control of a transportation service is anexacting one that must be directed to the person subject to the inquiry. It is at leastreasonably arguable that the decision maker must identify cogent material that showsa clear nexus between the systemic failure and the specific actions or inactions of theperson under inquiry. Generalisations about SSL's performance and simplisticattributions to Messrs Semenoff and Mr Turner are arguably insufficient to dischargethe obligation to be satisfied.[34] This requirement for proof accords with the scheme of the Act and specificallythe provisions dealing with the chain of responsibility. As noted above s 79T requiresproof that the impugned person, by act or omission, directly or indirectly caused orrequired a driver to fail to comply with the rest time requirements prescribed in theAct or the Rules. Given the consequences of a finding of unfitness, it is at leastarguable that the decision maker must have at least some proof of acts or omissions ofthe kind needed to establish a chain of responsibility offence under s 79T.[35] I am fortified in this view because evidence of systemic failure over a longterm might justify an alternative finding under s 30S(1), namely that the holder of thelicence – SSL – is not a fit and proper person. This would address and provide a moredirect remedy for NZTA's legitimate concerns about road safety.[36] I also agree with Mr Neutze that it is further arguable the decision lacks therequisite attribution to specific individuals. Key findings within the August 2018notice of proposal and in the March 2019 decision letter are expressed in terms of theperformance of SSL as a whole. There are also findings that might fairly be said toexpressed in generalised and inconclusive terms, for example the March 2019 decisionobserves that "speeding by SSL's drivers appears to be tolerated". This apparentgeneralisation is carried into Ms Despard's affidavit when she states:Specifically, the basis for my determination in this case that the Persons inControl were not fit and proper persons to hold a TSL was that I consideredthat the Persons in Control were either unwilling or unable to ensure that theapplicant's drivers complied with the relevant road safety requirements andthus there was a risk to land transport safety . Having considered theapplicants submissions I considered there was still insufficient evidencethat the Persons in Control were taking steps and putting systems in place toensure compliance . I therefore concluded that the Persons in Control werenot fit and proper persons, individually or collectively, to be in control of atransport service .[37] While ex post facto evidence of a decision maker about the decision carrieslittle weight, this passage highlights the generalised and in part inconclusive nature ofthe findings she made. There is no specific attribution to any individual and there isno clear finding as to whether it is an act (a willingness) or omission (an inability)which is of concern. Rather, Ms Despard simply attributes a lack of fitness to all threebecause of SSL's poor record of performance. Whether this is sufficient or not willbe a matter for the substantive review hearing, but it is arguable that generalisedfindings of this kind do not discharge the legal condition to be satisfied that each ofthe persons under scrutiny is not a fit and proper person to be in control of a transportservice.Should relief be granted – public safety?[38] Protection of the public is a key consideration in determining whether interimorders should be continued. As Ms Despard noted in her affidavit:Driver fatigue can lead to negative mental and physical impacts on anindividual driver. In New Zealand, for the years 2014 to 2016, driver fatiguewas a factor in at least 12% of fatal crashes, and 6 percent of serious injurycrashes.[39] SSL seeks to dismiss these statistics because the majority of the recordedfatalities were not caused by transport service providers. But I think that tends tosupport rather than undermine NZTA's key position. Left uncontrolled, driver fatigueis a major issue of concern, including a heightened risk of fatalities. There is thereforesome force to NZTA's submission that a precautionary approach is justified givenSSL's poor compliance record. This is supported by the scheme of the LTA which doesnot provide for stay of decisions pending appeal. This is a strong direction that SSLcarries the burden of showing that it should continue to operate.[40] Turning to the evidence, the various problems identified by the NZTA are setout above. There is affidavit evidence from Ms Eileen Kelly elaborating on theidentified non-compliances in 2016 and 2017, including speeding and work timebreaches. This evidence refers to ongoing non-compliances with the March interimorder conditions. Concern is expressed about the inability of SSL to provide GPSreports showing the movement of trucks throughout the day. Mr Deane Palmer alsoreports on the outcomes of "Operation Northern", a short compliance programmeconducted over 17 and 18 April 2019. He says of 31 vehicles stopped, 23 belonged toSSL. Of these vehicles, 26 defects were found, 13 of which qualified for "pinkstickers" which mean the vehicle is deemed unsafe for the road. 7 of the defectsqualified for a dark green sticker, so that they were immediately removed from theroad.[41] Mr Turner however disputes several of the assumptions made by NZTA whichunderpin the Revocation decision and the observations made by Ms Kelly and MrPalmer. He noted:(a) SSL does not agree that taking rest breaks during non-productiveperiods at source locations is unlawful;(b) The NZTA has been unable to identify adequate safe areas for driversto take rest breaks at other locations, particularly in the Northland;(c) SSL does not accept that its drivers do not take adequate breaks or thatthe company does not enforce the taking of breaks;(d) SSL disagrees with the GPS reports relied upon by the NZTA in itsassessment of compliance with speed limits and notes that 95% of thefleet were fitted with equipment that does not allow them to acceleratebeyond 90kms per hour;(e) A reliable GPS system installed across the entire fleet would costaround $151,800 per annum over three years. This investment cannotbe made while the threat of revocation remains.(f) SSL also disagrees with the GPS reports insofar as they are relied uponto establish breach of the requirement to take breaks and all companydrivers are required to take breaks. This is said to be supported by SSL'srecords of individual drivers. (I note that reliance is placed on rest timesbeing taken during loading and unloading – a point of contention).[42] Mr Turner also notes that since the 22 March conditions imposed by the Court,any non-compliance has been inadvertent. He acknowledges there were threerelatively minor instances of non-compliance detected at Police roadside inspectionsand SSL did not report them. He says SSL thought it was required to notify failures ordefects that affected driver or third-party safety. He also refers to, in summary, thetargeting of SSL trucks by the NZTA, noting for example that SSL trucks havereceived more pink stickers over a two-day period than it received over the previoustwo-year period. He then provides an explanation for each pink sticker.Assessment[43] As noted, I am satisfied NZTA's concerns are justified. The number andduration of the non-compliances suggests a systemic problem. The explanations forthe non-compliances reveal a level of defiance about what is or is not necessary. Whendealing with the everyday safety of road users, such defiance is a reason for vigilance.Balanced against this, I am advised that Messrs Semenoff and Turner have 90 plusyears of experience between them, with no record of any fatal incidents involvingtrucks under their control. I have also reviewed, albeit briefly, the nature of the auditednon-compliances, including large numbers of truck maintenance infringements,speeding violations and work time breaches. Individually, the transgressions might beconsidered relatively minor, attracting minor fines for example. Their true significanceis that cumulatively they suggest, as Ms Despard surmised, a lack of control or what Ihave already described as systemic failure. This bears on the immediacy of the needfor protection of the public. The more recent outcomes of "Operation Northern" are afurther reason for concern. I am not in a sensible position to resolve disputes about thepink stickers. But SSL is under no illusion, as Mr Turner has noted, SSL operationsare now under constant scrutiny.[44] I am therefore satisfied that the interim order is appropriate pending thedetermination of the substantive review proceeding or the appeal on the proviso thateffective conditions can be either agreed or imposed to secure the protection of thepublic. I wish to signal to the parties that one of the key problems in this case istransparency and enforceability. Mr Turner has referred to the cost of an effective GPSsystem. While that may be so, a condition of this kind is attractive to me, particularlyif the period to resolution could be an extended one.The video[45] During the hearing a video of a secret recording of exchanges involving StanSemenoff and a former employee was played to me. One interpretation of therecording is that Mr Semenoff was encouraging his employee to conform to companypolicy about rest breaks and work logs irrespective of whether they strictly compliedwith transport regulation. Another interpretation is that he was simply telling theemployee to comply with company policy about these things because that wasaccepted industry practice. I am not in position to rule on this and in any event, I havenot found the evidence helpful in resolving the issues before me. Whatever the positionwhen this recording was taken, Mr Semenoff will be in no doubt about the expectationsof the NZTA or this Court, whether he agrees with them or not.[46] The publication of the video is however sought by various media organisations.This raises two separate issues – the reporting of the evidence and the release of thevideo for publication purposes. The former issue brings into play the presumption infavour of open justice affirmed by the Supreme Court in Erceg v Erceg, which said:13[2] "Open justice" imposes a certain self-discipline on all who are engaged in theadjudicatory process – parties, witnesses, counsel, Court officers and Judges. Theprinciple means not only that judicial proceedings should be held in open court,accessible by the public, but also that media representatives should be free to providefair and accurate reports of what occurs in court. Given the reality that few membersof the public will be able to attend particular hearings, the media carry an importantresponsibility in this respect. The courts have confirmed these propositions on manyoccasions, often in stirring language.[47] SSL seeks to rebut this presumption by reference to privacy considerations,citing various decisions of the Privacy Commissioner and referring to the observationsmade by the Court of Appeal in Talbot. I consider the following observation to be themost apposite:14In some circumstances the surreptitious recording of conversations mayundermine the confidence and trust that is at the heart of good continuingworking relations between employer and employee and their representativesand breach acceptable standards in employment relations.[48] I am prepared to assume for present purposes, this is one of those cases wherethe recording is of a type that seriously undermines trust and confidence betweenemployee and employer. The recording is also inherently unfair to Mr Semenoffbecause had he known he was being recorded he may have explained more carefullywhat he was trying to convey to his employee. It is evident to me in this regard thatMr Semenoff is trying to explain his company's approach in simple unvarnished termsto an employee whose first language is not English. Taken out of context, moremeaning or significance might be given to what was said than what was intended at13 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.14 Talbot v Air NZ [1996] 1 NZLR 414 at 418.the time. Balanced against this, there is strong public interest in the matters discussedbetween them and the approach taken by Mr Semenoff to his transport service.[49] Overall, the balance between privacy interests and open justice favours thereporting on the evidence played in Court. The reporting must however be fair to MrSemenoff. His evidence responding to what was shown in the video must also bereported on in equal measure. Furthermore, Mr Semenoff challenges the findings madeby the NZTA and the outcome of that challenge may bear directly on the significanceof the recording in terms of reputational impact. This leads to consideration of thesecond issue.[50] The second issue brings into play Rules 12 and 13 of the Senior Courts (Accessto Court Documents) Rules 2017. Rule 12 sets out the matters to be considered whenaccess to documents held by the Court is sought. It states:12 Matters to be consideredIn determining a request for access under rule 11, the Judge must consider the natureof, and the reasons given for, the request and take into account each of the followingmatters that is relevant to the request or any objection to the request:(a) the orderly and fair administration of justice:(b) the right of a defendant in a criminal proceeding to a fair trial:(c) the right to bring and defend civil proceedings without the disclosure of anymore information that the private lives of individuals, or matters that arecommercially sensitive, than is necessary to satisfy the principle of openjustice:(d) the protection of other confidentiality and privacy interests (including thoseof children and other vulnerable members of the community) and anyprivilege held by, or available to, any person:(e) the principle of open justice (including the encouragement of fair and accuratereporting of, and comment on, court hearings and decisions):(f) the freedom to seek, receive, and impart information:(g) whether a document to which the request relates is subject to any restrictionunder rule 7:(h) any other matter that the Judge thinks appropriate.[51] Rule 13 provides for a graduated approach depending on what stage has beenreached in the proceeding. It states:13 Approach to balancing matters considered:In applying rule 12, the Judge must have regard to the following:(a) before the substantive hearing, the protection of confidentiality andprivacy interests and the orderly and fair administration of justicemay require that access to documents be limited:(b) during the substantive hearing, open justice has –(i) greater weight than at other stages of the proceeding; and(ii) greater weight in relation to documents relied on in thehearing than other documents:(c) after the substantive hearing, -(i) open justice has greater weight in relation to documents thathave been relied on in a determination than other documents;but(ii) the protection of confidentiality and privacy interests hasgreater weight than would be the case during the substantivehearing.[52] An interlocutory application is defined:Interlocutory application(a) means any application that is made to the court in a civil or criminalproceeding, an intended civil or criminal proceeding, or an appeal orintended appeal in respect of a civil or criminal proceeding, -(i) for an order or a direction relating to a matter of procedure;or(ii) in the case of a civil proceeding, for some relief ancillary tothat claimed in a pleading; and(b) includes an application to review any order made, or a directiongiven, on an application to which paragraph (a) applies.[53] A substantive hearing is then defined as follows:Substantive hearing means, -(a) in relation to a civil proceeding,-(i) a hearing (other than the hearing of an interlocutoryapplication) at which issues that will decide the ultimateoutcome of the proceeding are determined; and(ii) from the start of that hearing until the court finishesdelivering its judgment in the proceeding (unless theproceeding is earlier discontinued, in which case until thediscontinuance);[54] The submissions of the parties did not appear to appreciate the graduatedapproach to release of Court documents. This is an interlocutory proceeding forancillary relief. The evident statutory policy at rule 13(a) is that protection of privacyinterests and the orderly and fair administration of justice may require that access todocuments be limited, departing from the usual presumption.[55] I have come to the view nevertheless that the requirement for open reportingshould prevail. While there is substance to Mr Semenoff's claim that the publicationof the video is unfair to him because it breaches his right to privacy and presents anincomplete picture of his relationship with the employee and his overall managementof SSL, there is a strong public interest in open reporting of this application for interimrelief. The public is entitled to full transparency on a matter that concerns their safety,and more so because SSL has been largely successful in this application. The publicshould not be deprived, without very good reason, of an explanation of the evidenceafforded by media coverage.[56] In this regard, it is necessary to repeat the direction above – the reporting mustbe balanced and fair. Mr Semenoff does not accept the allegations levelled at himand/or the rather limited perspective of him afforded by the secret recording. Hissuccess in the application for interim relief is also premised on the Court's confidencethat, subject to conditions to be finalised, SSL operations under his control do notpresent an undue risk to the public.Outcome[57] The interim order preserving SSL's position will be continued, subject tofinalisation of conditions. In this regard I direct the parties to endeavour to agreeconditions and if that is not possible, file submissions within 3 working days. Theinterim relief as granted by Woolford J will apply pending my final decision.[58] The video and the transcript of the video shall be made available to the mediaorganisations present at the hearing. Mr Semenoff's affidavit, together with thesubmissions of counsel, should also be given to them. It is my expectation that thesemedia organisations will ensure that the coverage of this evidence is balanced and fairto Mr Semenoff.Costs[59] Submissions on costs, if necessary, are to be filed within 5 working days.Submissions over three pages in length will not be accepted for filing.