ABRAHAM v NEW ZEALAND TRANSPORT AGENCY [2017] NZHC 1483

ABRAHAM v NEW ZEALAND TRANSPORT AGENCY [2017] NZHC 1483 [30 June 2017]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYCIV-2016-454-115[2017] NZHC 1483UNDER Section 111A of the Land Transport Act1998BETWEEN WIREMU PIKITEKAHA ABRAHAMAppellantAND NEW ZEALAND TRANSPORTAGENCYRespondentHearing: 16 May 2017Appearances: S S Khan for AppellantP L Murray for RespondentJudgment: 30 June 2017JUDGMENT OF CULL J[1] Mr Abraham appeals a decision by Judge Ross in the District Court, whichupheld the New Zealand Transport Authority's (NZTA) decision, not to renew Mr Abraham's driving instructor "I" endorsement on his driver licence.1[2] The issue which NZTA and the Judge Ross had to address was whether Mr Abraham was a fit and proper person to hold a driving instructor "I"endorsement, in accordance with the statutory requirements.[3] This is an appeal under s 111A of the Land Transport Act 1998 (the Act) against the decision of the District Court on errors of law only.1 Abraham v New Zealand Transport Agency [2016] NZDC 20036.Factual background[4] Mr Abraham is a professional truck driver and a driving instructor. He holds a Transport Service Licence in relation to Rangitikei Enterprises Ltd (REL) as well as driver licence classes 1 – 5. He was first granted a driving instructor "I"endorsement on his driver licence on 1 October 2003, which was renewed on 20 December 2010. On 20 November 2015, Mr Abraham applied to NZTA to renewhis "I" endorsement for a further five years.[5] On 11 April 2016 Peter Stevenson, Senior Adjudicator at NZTA, declined Mr Abraham's renewal application on the basis that NZTA was not satisfied Mr Abraham was a fit and proper person to hold such an endorsement. The primaryreason for this was the totality of Mr Abraham's traffic offending history. Of note,Mr Stevenson identified:(a) Mr Abraham had been apprehended for 32 traffic related offences. This included 15 infringements identified in the NZTA register and convictions between 1982 and 2015. Two of these offences (for speeding) occurred in 2015. It also included 17 traffic related offences included in a 2015 fines summary that were not listed on the NZTA register. These offences included excess speeding (nine offences), dangerous, careless and reckless driving as well as operating vehicles not up to Certificate of Fitness standard.(b) Mr Abraham had demonstrated persistent offending over almost 34 years, including for offences directly related to safety.(c) Mr Abraham had also been stopped by police on a number of occasions between 2011 and 2014 for vehicle faults and operating a heavy motor vehicle that was not up to Certificate of Fitness standard, but had not been prosecuted for these. These are referred to as CVIRs.2(d) Mr Abraham had incurred 160 demerit points throughout this period and at the time of his application was subject to 55 demerit points.32 Commercial Vehicle Inspection Reports.3 Current until 9 August 2017.(e) In light of this record NZTA could not be confident in Mr Abraham'sability to satisfactorily instruct driver trainees, especially when issues of safety and legal operation of a vehicle arose.(f) When Mr Abraham previously sought renewal of his endorsement in December 2010, he had been issued a warning letter that should heincur further convictions or come to the NZTA's attention in future, afresh assessment of his fitness and propriety might result. Mr Stevenson commented that Mr Abraham appeared to have ignored this warning as he had committed four traffic related offences since the warning was issued, (which included a charge that was subsequently withdrawn). Mr Abraham denied receipt of this warning notice.(g) Mr Abraham's other (non-driving related) convictions on the police register, including for evading assessment and payment of GST for a transport company.(h) It was not in the interests of public safety to renew Mr Abraham'sendorsement.[6] Mr Abraham appealed the NZTA decision to the District Court under s 106 of the Act. On 30 September 2016, Judge Ross dismissed the appeal. Mr Abraham now appeals that dismissal.District Court decision[7] Judge Ross upheld the NZTA decision and awarded costs to NZTA on a 2B basis.[8] The Judge outlined the statutory requirements under the Land Transport (Driver Licensing) Rule 1999 (the Rule) and noted that an applicant must satisfy NZTA that he is a fit and proper person to hold the endorsement as a driving instructor. Clause 35(1) of the Rule sets out the criteria to determine who is a fit and proper person. For an "I" endorsement, both ss 30C and 30D of the Act must besatisfied. Under s 30C(1), the NZTA must consider any matter:(a) in the interests of public safety; or(b) to ensure that the public is protected from serious or organised criminal activity.[9] The Judge noted the high standard that is expected of professional drivers andthat "the holding of an endorsement such as an instructor endorsement is a privilege and not a right".4[10] In determining Mr Abraham's fitness and propriety, the Judge considered the relevance of past infringements and whether they could be excluded because of age.5The Judge considered various authorities concerning whether previous infringements and offences remained relevant.6 The Judge commented that limited weight can be attached to infringements (including past ones) as this is part of the overall context to be considered.7 The Judge took into account Mr Abraham's previous speedingoffences and his offence for driving outside the mileage stated on the road user charges licence.[11] The Judge then considered the fresh evidence on appeal from NZTA, consisting of CVIRs. These were notifications from the Commercial Vehicle Inspection Unit (CVIU) of regulatory defects of vehicles that Mr Abraham was driving, as a result of road-side inspections. The Judge called them "Further Offences". The Judge notes that they were an issue of public interest and publicsafety and Mr Abraham should have carried out the appropriate checks before the vehicles were used. The Judge stated:[16] However, being stopped so frequently, and with so many seemingly minor but potentially risky defects being found on inspection checks, an experienced driver who would seek to impart his knowledge and skills as an instructor to others far more ignorant in the ways of heavy trucking than himself, might have altered course to avoid the repetition of accumulating defects. The absence of sanctioning, and the explanations made by the appellant, are of less significance to me than [the fact that] it kept recurring.[12] The Judge took into account Mr Abraham's convictions under tax legislation,but said he treated them neutrally. He observed that although they arose out of the operation of a trucking company, the convictions had been entered, the penalty4 Abraham, above n 1, at [9].5 At [10] – [11].6 Neas v Director of Land Transport DC Christchurch CIV-2008-009-2932, 5 November 2008;Daniels v Director of Land Transport Safety [2002] DCR 375; and Collings v Land Transport New Zealand DC Timaru CIV-2010-076-37, 15 March 2010.7 Abraham, above n 1, at [12].served and reparation paid back over a period of time. He then said that while they were not excluded from his consideration, they were not taken into account in assessing whether Mr Abraham was a fit and proper person.8[13] The Judge did not take into account that Mr Abraham accumulated demerit points. He considered the long distances travelled were potentially an occupational hazard because of the risk to public safety posed.[14] Although Mr Abraham denied receiving the NZTA warning in December 2010 when he last renewed his "I" endorsement, the Judge said it did not matterwhether Mr Abraham received the notice or not. The Judge stated that in light of the publicity given to the consequences of speed and the need for safe operation of vehicles, it was not essential for Mr Abraham to have been given a specific warning, considering he wanted to be endorsed as a driving instructor.[15] In summary, the Judge stated that "there is an example to set" as a driving instructor and Mr Abraham should "practice what he preaches" in order to be considered a fit and proper person to hold the instructor endorsement.9 The Judgefound Mr Abraham's record, over his motoring career and lifetime demonstrated "ahistory which has involved offending and stoppages which actually or potentially compromises the safety of other road users" and did not make him a fit and properperson.10 He held that allowing Mr Abraham to hold a driver instructor endorsement would not be in the interests of public safety. He therefore dismissed the appeal and upheld the NZTA's decision to decline Mr Abraham's "I" endorsement.Approach to appeal[16] Section 111A of the Act provides:111A Appeal to High Court on question of law(1) A party to an appeal under section 106 who is dissatisfied with the decision of the District Court on the grounds that it is erroneous in law may appeal to the High Court on that question of law.8 At [17].9 At [21].10 At [21].(2) An appeal under this section must be heard and determined in accordance with the rules of the High Court.[17] Lord Radcliffe's speech in Edwards v Bairstow enunciates the two historical manifestations of an error of law: namely a wrong statement of principle or law or where there is no evidence to support the determination.11 The Supreme Court inBryson v Three Foot Six Ltd adopted Lord Radcliffe's formulation and said:12[24] Appealable questions of law may nevertheless arise from the reasoning of the Court on the way to its ultimate conclusion. If the Court were, for example, to misinterpret the requirements of [a statutory provision]– to misdirect itself on the section that would certainly be an error of law which could be corrected on appeal [25] An appeal cannot however be said to be on a question of law where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless it is clearly insupportable.[18] More recently in Brown v R, the Court of Appeal restated the relevant test for an appeal on questions of law.13 The appeal must raise one or more of the following three standard errors classified by modern authorities:14(a) a misdirection of law apparent in the decision (what Fisher J called"a conventional legal question on unchallenged facts");15(b) oversight of a relevant matter, or considerations of an irrelevant matter;16 or(c) a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possibly on the evidence.17Mr Abraham's position[19] Mr Abraham submits that the Judge's decision was wrong in law on threegrounds, namely, the Judge:11 Edwards v Bairstow [1956] AC 14 (HL) at 35-36.12 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.13 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471.14 At [16].15 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 86.16 Bryson, above n 12, at [25]; Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51].17 Bryson, above n 12, at [26]; Vodafone New Zealand Ltd, above n 16, at [52].(a) applied a significantly higher standard to Mr Abraham in assessing his fitness and propriety than is required by law;(b) elevated the consideration of public safety beyond what is necessaryin law to be satisfied of Mr Abraham's fitness and propriety; and(c) misapplied the law regarding matters for which Mr Abraham was not charged.NZTA's position[20] NZTA submits that public safety is a paramount consideration. Public safetyis one of the core mandatory considerations in determining a person's fitness andpropriety under the statutory scheme. NZTA submits that part of its role in protecting public safety is to require that holders of driver licence "I" endorsements meet a high standard of competence, fitness and propriety and will not compromise the safety of other road users by incorrectly instructing them.[21] NZTA submits that the totality of an appellant's driving history, including anytraffic infringements or offending, must be considered when assessing their fitness or propriety. In Tuineau v NZTA, the Judge stated that the whole traffic history must be looked at in totality "bearing in mind the pattern it shows in context of previous offending and warnings of one sort or another".18 An applicant's fitness andpropriety must be determined as at the date of the hearing of the appeal.19 Further, NZTA submitted that where an applicant has previous traffic and/or criminal offending and continues to offend, the courts have typically required reasonable evidence of long-term and consistent reform.20 Counsel provided two cases ofrelevance to an applicant's offending history for speeding:(a) In Daniels v Director of Land Transport Safety, the applicant was seenas having a "behavioural problem" as he had committed nine speeding18 Tuineau v New Zealand Transport Agency DC Wellington CIV-2012-085-172, 1 June 2012 at [21].19 At [26].20 Ledingham v New Zealand Transport Agency DC Dunedin CIV-2010-013-533, 20 December 2010 at [15]; and Pinn v Ministry of Transport [1990] DCR 565 at 570.infringements and was previously suspended twice from driving as a result of speeding.21(b) In Collings v Land Transport New Zealand, the applicant was said to have a propensity or habit to speed as he had committed 11 speeding infringements.22Did the Judge apply a significantly higher standard to Mr Abraham?[22] NZTA submits that the District Court Judge did not apply an unattainable standard of perfection to Mr Abraham. The Judge correctly referenced and applied the mandatory and permissive considerations in ss 30C and 30D of the Act toconclude Mr Abraham was not a fit and proper person. The Judge's comments about Mr Abraham as a "standard setter" must be read in the context of the Judgereviewing his traffic offending history. Further, NZTA submits that a high standardof fitness and propriety for an "I" endorsement is required so that driver trainees areadequately instructed as to road safety and safe driving behaviour.[23] NZTA highlights that assessing fitness and propriety is individual to each case, having regard to the particular endorsement applied for and the relevantcircumstances. The Judge's conclusion about Mr Abraham was fair and reasonable and was supported by evidence available to him.Did the Judge elevate the consideration of public safety beyond what is necessary in law?[24] NZTA submits that this is closely related to the first question. NZTA identifies that although public safety is a paramount consideration in assessing the fitness and propriety of an applicant, it cannot be used to elevate the standard required. However, NZTA submits, the Judge did not improperly elevate public safety considerations.[25] NZTA submits that the Judge's consideration of infringements that werewithdrawn or not prosecuted was not an improper elevation. These comments must be seen in their context – it was relevant to the Judge's assessment to consider these21 Daniels, above n 6, at [20].22 Collings, above n 6, at [35].incidents and to attribute some responsibility for vehicle defects to Mr Abraham asthe vehicle operator. The Judge's emphasis on public safety here relates tos 30C(1)(a) of the Act and the need to ensure heavy vehicles are safe androadworthy. NZTA's case is that the Judge was not overreaching in characterising the repeated defects as a public safety concern. Further, the Judge considered these incidents as part of the overall picture and evidence about Mr Abraham, but gave them limited weight.[26] NZTA further states that Mr Abraham did have an opportunity to respond to matters for which he was not prosecuted, in his affidavit in reply in the District Court. In this affidavit, Mr Abraham acknowledged the defects but sought to mitigate his responsibility for them.Did the Judge misapply the law for matters Mr Abraham was not charged with?[27] NZTA submits that the vehicle inspection reports are relevant considerations to the fitness and propriety assessment. Section 30C(2)(b) of the Act provides that"offending" rather than convictions can be considered. Further, decision makers have a wide discretion to take into account any matters of relevance under ss 30C(2)(f) and of the Act and cl 35(2) of the Rule. Mr Abraham had the opportunity to comment and respond to this evidence and did so through his affidavit in reply.[28] NZTA accepts the approach in Neas, that it is necessary to "make a generalassessment of the overall impact of the offending record and other relevantmaterial".23 It is submitted that the Judge did assess and consider all relevant factors and come to a conclusion based on that assessment.The issue[29] The ultimate issue in this appeal arising from each parties' submissions is:Did the Judge err in his application of the fit and proper person criteria under ss 30C and 30D of the Act?23 Neas, above n 6, at [21].Relevant law[30] In order to obtain a driving instructor "I" endorsement, an applicant mustsatisfy several criteria under both the Act and the Rule.[31] Section 4 of the Act specifies the general requirements for participants in the land transport system. Under s 4(4), an applicant:24for a land transport document that authorises the provision of a service within the land transport system must, if required by the rules, satisfy the [NZTA] that the person is a fit and proper person.[32] Clause 22 of the Rule requires:A person who, for financial or commercial gain, provides instruction on a road in driving a motor vehicle must hold a driving instructor endorsement for those classes of licence that relate to the motor vehicles for which the person intends to provide instruction.[33] Clause 23(1) of the Rule outlines the criteria a person must meet in order to obtain a driving instructor endorsement:(a) the person has made an application in accordance with Part 3; and(b) the person holds, and has held for at least 2 years, a New Zealand full licence of a class that authorises the person to drive a vehicle of a type in which the applicant intends to provide instruction; and(c) the person provides evidence of his or her successful completion of an approved course of a type specified in clause 93(b)(iv); and(d) the person passes a full licence test under clause 48 unless, in the 5 years immediately preceding the date of application, the person has passed a full licence test required for a Class 1 licence; and(e) the person produces a medical certificate in accordance with clause 44; and(f) the person consents to the carrying out of checks as to whether or not the person is a fit and proper person to be the holder of a driving instructor endorsement, and consents to the carrying out of those checks from time to time during the period of validity of the endorsement; and(g) the Agency is satisfied in accordance with clause 35(1) that the person is a fit and proper person to be the holder of a driving instructor endorsement.24 I.e. an instructor endorsement.[34] One of the primary considerations under cl 23(1)(f) and (g) is that the person is fit and proper. Clause 35(1) states that the criteria in ss 30C and 30D of the Act are to be applied in assessing the fitness and propriety of persons applying to be a driving instructor. Those sections provide: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 involvement inany 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 of small 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.[35] The criteria in ss 30C(1) and 30D are mandatory considerations – namely, the interests of public safety and protection of the public from criminal activity. The considerations in ss 30C(2) and (3) are permissible considerations – including anapplicant's criminal history and transport-related offending. Section 30C(4) gives the NZTA a wide discretion to consider any other matters it considers relevant to assessing the fitness and propriety of an applicant.[36] Under s 30C(1) the NZTA has a mandatory requirement to consider any matter that it considers should be taken into account in the interests of public safety or to ensure that the public is protected from serious or organised criminal activity. While the statutory language under s 30C(1) is a mandatory requirement, cl 35(1) of the Rule says NZTA may consider, and give such relative weight as it considers fit, to the criteria in ss 30C and 30D, in respect of driving instructor endorsements.[37] Section 30C(2) lists other factors which NZTA may consider, having regard to the nature and degree of Mr Abraham's involvement in any transport service.Section 30D applies to a driving instructor endorsement and that the additional criteria under that section must be considered by the Court.Relevant facts[38] It is important to set out the following relevant facts, before addressing theJudge's application of the mandatory and permissive criteria under the Act.[39] Mr Abraham has been a driving instructor for 12 years, having been first granted his driving instructor endorsement on 1 October 2003, which was renewed on 20 December 2010 for a further five years. He produced as evidence a number of references that all speak highly of his ability to communicate with young people and a wide range of people in the community. They say the community have benefited from his tuition and his instruction on safe driving practices.[40] He has never received a complaint about inappropriate behaviour towards those in his care. He has no criminal history involving offences of violence, sexual offences, drugs offences or arms offences nor any offences involving organised criminal activities.[41] In the five years prior to his recent application to renew his instructor licence, from 2010 to 2015, Mr Abraham was fined on three occasions for speeding (a fourth speeding charge was withdrawn). He received 20 demerit points in 2011 and 55 in 2015. Mr Abraham was not prosecuted for any of the CVIRs arising from stoppages at the roadside CVIU truck-stop in Ohakea, a route Mr Abraham drove three times a day from 2011 to 2014.[42] At the time of the NZTA's decision and the District Court appeal,Mr Abraham had been assessed as a fit and proper person under the same statutory criteria in s 30C, as required to hold his Transport Service Licence and class 1 – 5 licence. Although the Judge referred to Mr Abraham holding a Transport Service Licence, he overlooked the fact that as a current holder of such a licence and a class 1 – 5 licence, Mr Abraham had satisfied the s 30C criteria. Under s 30S(1), NZTAmay revoke a Transport Service Licence if it is satisfied that "the holder of thetransport service licence is not a fit and proper person to be the holder of such alicence." Similarly, under s 87A, NZTA may disqualify a person for a period not greater than 10 years, if it is satisfied the person is not a fit or proper person. No such actions were taken in relation to Mr Abraham by NZTA.Did the Judge err by failing to recognise that Mr Abraham was already determined to be a fit and proper person?[43] The additional criteria under s 30D, being mandatory criteria, for an "I"endorsement had to be considered in respect of Mr Abraham's application forrenewal, but the Judge did not mention the fact that the initial starting point under s 30C had already been met.[44] NZTA also appeared to have overlooked this as did Counsel for NZTA at this hearing. Given that Mr Abraham operates a heavy truck and drives more than 70 hours a week, his status as a fit and proper person to hold such a licence must be a relevant consideration.[45] Mr Abraham held a Transport Service Licence, which also required him to be a fit and proper person. In addition, he held a class 1 – 5 drivers licence. The last four classes of this licence also required him to be a fit and proper person in order to drive heavy truck and trailer vehicles. The same criteria for a fit and proper person assessment under s 30C of the Act apply to the holding of those licences[46] I consider the Judge overlooked that Mr Abraham already met the criteria as a fit and proper person under s 30C of the Act as shown by these licences. In doing so the Judge failed to consider a relevant factor. I turn then to consider whether the Judge appropriately applied the statutory criteria under s 30D of the Act.Did the Judge err by failing to consider the statutory criteria under s 30D of the Act in his assessment?[47] Section 30D provides additional mandatory criteria for an "I" endorsement.These mandatory considerations focus on a history of serious behavioural problems, serious offending, persistent offending and offending in respect of major transport- related offences, relating to safety or road user charges.[48] The Judge's approach to "criminal offences", as he labels them in hisjudgment, is problematic. The Judge says he took into account the convictions underthe tax legislation but treated them neutrally and described them as "bookkeeping offences". He says he mentioned this to show that it is not excluded from his consideration, but is not taken into account otherwise in his fit and proper personassessment. The focus of the Judge's decision appears to be directed atMr Abraham's "persistent offending". He focussed solely on Mr Abraham'stransport-related infringements and offences. These took place over 33 years, well before Mr Abraham's endorsement as a driving instructor in 2003.[49] In addition, the Judge includes the CVIR's from the roadside CVIU as"further offences". However these were never prosecuted. The Judge did notmention any of the s 30D factors and nor did NZTA. During the course of submissions, counsel for NZTA submitted that this was a negative consideration, because there were no complaints or relevant criminal history as specified under s 30D(b) of the Act. In including infringements and offences before 2010, the Judge has overlooked the fact that Mr Abraham had his "I" endorsement renewed in 2010,despite the previous offence list. Although the Judge questioned whether he should exclude aged infringements or offences, he did not put aside relatively stale offences which had occurred up to 14 years before.25Character references[50] The only mention the Judge made of the character references Mr Abrahamprovided was in considering Mr Abraham's tax convictions. The Judge says that he treated those convictions neutrally but in so doing, dismissed the "public good factor" which was seen by a number of supporting training and industry players, because those factors are peripheral to the discretionary factors and are not amandatory consideration. Having referred to the consistent level of "bookkeeping"offences, namely GST related offences, the Judge said:26[17] . I mentioned this to show that it is not excluded from my consideration, but is not taken into account otherwise in my fit and proper assessment. It might in ordinary circumstances colour or flavour the character references which accompany the appeal. However despite the25 Neas, above n 6.26 Emphasis added.location of the appellant's business, and the public good factor which is seenby a number of supporting training and industry players, these factors are only peripheral to the discretionary factors, let alone being a mandatory concern. The prosecutions appear to have arisen out of financial considerations, which are expressly not covered by the statute, unless of course there are safety or public interest issues which flow. Such is not pointed to here.[51] The Judge then focused his assessment, "on a view of matters mostfavourable to the appellant".27 He took into account four admitted speeding charges, and a further charge of driving outside the road user charges mileage from 18 September 2006.28 He also took into account previous infringements beyond a 10 year time period, including two further speeding charges, one with a heavy motor vehicle.[52] The Judge dismissed Mr Abraham's explanations by calling these a "somewhat microscopic review of how these infringements arose".29 He said Mr Abraham's explanations "do not stand close scrutiny in relation to what are, onthe face of it, common or garden speeding offences otherwise without aggravatingfeatures" and focused on the "infringer".30[53] Without specifying which criteria the Judge was considering when referring to Mr Abraham's transport-related offending, it is unclear whether he took into account the mandatory consideration under s 30D(d) "any persistent offending of any kind" or one of the permissive criteria under s 30C(2)(b), being "any offendingby the person in respect of transport-related offences (including any infringementoffences)". The Judge has made no actual finding that Mr Abraham was a"persistent offender" or that the history of the traffic offences and infringementswere being viewed exclusively or were rated as having more importance than the other criteria under the Act. However, it appears in fact that transport-relatedoffending was the Judge's primary focus.[54] It should be noted that the s 30D criteria all relate to serious behavioural problems, offending in respect of "major transport-related offences" and serious27 Abraham, above n 1, at [11].28 The admitted speeding charges were from May 2007, 2 January 2011, 24 January 2015 and 9 August 2015 – the relevant fines for which have been paid and demerit points incurred.29 At [12].30 At [12].violent, sexual and drug offences or serious and persistent complaints. Such as"persistent offending of any kind" under s 30D(d) must be construed as serious offending, in light of the surrounding criteria. The Judge however, has not specified on what basis he is viewing the transport-related infringement offences and other offences in his assessment.[55] During the hearing, it was accepted by counsel for NZTA that for any passenger service, such as a taxi driver licence or a instructor endorsement, a paramount consideration is the protection of the public from any serious behavioural problems by the licensor. This includes a consideration of any complaints about the licensor that are of a persistent or serious nature.[56] The Judge ignored the other statutory considerations, both mandatory and discretionary, and focussed on the protection of the public against unscrupulous and persistent serious behavioural offending. He did not take into account the lack of complaints, for a driving instructor who has completed over 12 years of instruction, without complaint or relevant serious criminal offending.[57] It is illustrative to compare this to Singh v New Zealand Transport Authority, a case involving a taxi driver, with 36 traffic offences where Judge Harrison observed, despite the number of traffic offences, there was no direct threat to publicsafety from Mr Singh's specific offending.31 The Judge noted that the offending was countenanced by a number of factors. This included that the NZTA had not received any complaints about Mr Singh, a taxi driver, in relation to his carriage of passengers and he submitted a number of positive testimonials from passengers which spoke highly of his driving ability. Mr Singh also recently undertook a defensive drivingcourse on receiving notice of the NZTA's proposal to cancel his endorsement.Further, the Judge in Singh indicated that public safety will not always be directly threatened by infringements generally.32[58] By omitting to consider Mr Abraham's good record in his dealing with hispupils and the community in general, the Judge has placed undue reliance on31 Singh v New Zealand Transport Authority [2017] NZDC 4740.32 At [18].speeding infringements, for which Mr Abraham was not charged. This inappropriately elevated them to the level of serious public safety offences.[59] The Judge concluded that:33A person such as the appellant with an instructors endorsement should be a standard setter, and not a creator of a double standard. There can be no roomfor a 'do as I say, not as I do' mentality. In each of his private driving, heavytruck driving, and instructing, to be a fit and proper person to hold the instructor endorsement, he has to practice what he preaches.[60] In reaching this conclusion, the Judge has taken into account infringements and an offence beyond the period of 2010 to 2015. This was the period of time, which in my view, was most relevant, because it followed the renewal of Mr Abraham's endorsement in 2010 when the previous offences were known toNZTA. Although a consideration of historical offending was open to the Judge, he should have factored into his consideration that the actual infringement offences since 2010, consisted of only three speeding infringements.[61] The Judge placed weight on the assertion that although Mr Abraham had been approved to hold the instructors licence in 2010, NZTA gave him a warning about the effect of future offending. Mr Abraham contested throughout, that he never received the warning. The Judge noted this but made no further finding on whether Mr Abraham was aware that any infringement may jeopardise his continuation of the instructors licence.[62] While there is no right to hold an "I" endorsement, the standard has not beenaltered for an instructor to be assessed any differently under ss 30C or 30D of theAct. Public safety is the overarching consideration in assessing an individual'sfitness and propriety. However, the statutory criteria encompass a much wider public safety consideration than just transport-related offences. This Court has previously warned of elevating public safety considerations beyond what is requiredto be "satisfied" of an individual's fitness and propriety.3433 At [21].34 New Zealand Transport Authority v Moradi HC Auckland CIV-2009-404-2507, 26 November 2009 at [18].[63] In this case, the focus of the assessment has been on the one criterion to the exclusion of the others, which has elevated transport-related infringement offences, including historical offences, to a threshold not contemplated by the Act.[64] I consider therefore that the Judge misdirected himself in undertaking his ss 30C and 30D assessment, of the fit and proper person test in its application to Mr Abraham because:(a) the Judge overlooked "a paramount consideration" in assessing theinterests of public safety, namely that Mr Abraham had no history of any serious behavioural problems;35(b) no complaints had been about the transport services provided by Mr Abraham, particularly complaints made by users of the service;36(c) Mr Abraham had no history of violent offences, sexual offences, drugs offences, arms offences or offences involving organised criminal activities;37(d) no complaints had been made about Mr Abraham that were of a persistent or serious nature;38 and(e) in focussing almost exclusively on Mr Abraham's transportinfringement offending, the Judge:(i) failed to recognize that he had only faced three speeding infringements only in the last five years (in the period since his last licence renewal); and(ii) placed a priority on transport-related infringement offences over the other criteria in the Act.[65] I turn then to consider the "Further offences", which the Judge relied on, as part of his assessment that Mr Abraham was not a fit and proper person.35 Section 30C(2)(c).36 Section 30C(2)(d).37 Section 30D(b).38 Section 30D(e).Did the Judge err in treating withdrawn speeding charges and CVIR notifications as transport offences in his fit and proper person assessment?[66] The Judge took into account traffic offences, which the police had withdrawnfrom prosecution. The Judge referred to the NZTA's analysis of Mr Abraham'sspeeding offences including two further allegations in 2009 and 2011, where Mr Stevenson deposes that he did not know why the police withdrew these two charges.[67] Mr Stevenson then alleges that these were still "offences." The Judgeconsidered that he could not ignore the incidents, whatever the outcome and despite any opportunity to defend, because they have arisen in respect of a person in theappellant's position. Even matters where Mr Abraham showed that the police had sent a notification on a log book incident, where the Officer was new and did not understand the requirements, the Judge appears to have still taken it into account.[68] The Judge said:39The appellants own explanation for the withdrawal is that on his denial ofthe infringements, the police, who he claimed had their facts, wrong, did not wish to take further action and thus withdrew the infringements.[69] The Judge however appears to have taken into account infringements, on the basis of allegations only, even when they were withdrawn.CVIRs[70] NZTA provided fresh evidence on appeal, arising from a serious of stoppages of Mr Abraham at the CVIU truck stop at Ohakea between 2011 and 2014. The Judge noted that Mr Abraham is a full time truck driver and that he was stopped by the CVIU for certificate of fitness standards for heavy vehicles. The Judge took intoaccount the CVIR "notifications" from the CVIU to NZTA, (none of which resulted in prosecutions or fines) in Mr Abraham's capacity as a heavy truck licensedoperator.[71] The notifications consisted of defects in the regulatory requirements of heavy truck vehicles, namely a tyre or tyres with insufficient tread, a detached mud flap,39 Abraham, above n 1, at [12].incorrect transport service label, expired licensing for trailer, out of adjustment brakes and the electronic braking system operating improperly. The Judge observedthat "none of these matters appear to have been consequenced or sanctioned by thepolice" and notes that the specific allegations in each case are scarcely denied by theappellant.40 However, the Judge does not give consideration to two important and relevant matters. First, Mr Abraham was not prosecuted for these defects. This gives an indication that even on a police inspection, they were not considered to beserious enough to qualify as "offences". Nevertheless, the Judge has considered them so, by labelling them "further offences". One of the defects, a detached mudflap, was taken into account by the Judge, despite Mr Abraham's explanation that themud flap had become detached whilst he was driving on that day and he was unaware of it.[72] Secondly, a number of the matters were the responsibility of the operator, such as the out of adjustment brakes and the electronic braking system operating improperly. The Judge overlooked that the notifications were forwarded to the company operating the trucks. Mr Abraham was a lessee of those trucks and was operating them as a driver, but not as an owner-operator.[73] In reaching his conclusion, the Judge specifically referred to Mr Abraham's history "which has involved offending and stoppages which actually or potentially compromises the safety of other road users".41 The Judge then make the finding that he did not assess Mr Abraham as a fit and proper person on account of the factors which the Judge had outlined.[74] I accept counsel for Mr Abraham's submission that the Judge's consideration of "Further offences" imposed absolute liability on Mr Abraham for matters he had not previously had any opportunity to defend. While the fitness and propriety assessment is broad enough to incorporate the CVIRs, Mr Abraham disputes how the Judge considered these records, when he was never charged in relation to them.40 At [16].41 At [21].[75] Further most of the defects were operator issues not driver issues. The vehicles were maintained by the lessor and presented to Mr Abraham as being fully compliant with the relevant Certificate of Fitness requirements.[76] It is illustrative that the approach taken in Neas v Director of Land Transport, was not followed. In Neas, the Judge stated:42It is unfair that a person should be treated as if he had committed a serious traffic offence without being given the opportunity to defend himself in court[77] In this case, after quoting the above passage, the Judge said:43But I cannot ignore altogether that, whatever the outcome, and despite any opportunity to defend, the incidents have arisen at all for a person in the appellants position. My assessment, then, is that some weight, but limited, can be attached to issues for which some propensity over the longer term is disclosed, and that it is but part of the overall context to be taken into account.[78] Judge Ross has treated Mr Abraham as if he had indeed committed the offences, for which he had not been charged.[79] I consider the approach in Neas, is relevant here. The Judge stated:44It would not be helpful to over-analyse Mr Neas' offending record. Inassessing whether a person is a fit and proper person to hold licenses, the court must make a general assessment of the overall impact of the offending record and other relevant material.[80] I accept counsel for Mr Abraham's submission that the Judge hasinappropriately elevated public safety concerns, when he took into account infringements that had not been sanctioned and indicated his concern that infringements kept happening, whether or not they were sanctioned.45 Although in the 33 years canvassed by NZTA and the Judge, Mr Abraham has had a number of transport-related offences, the more serious occurring before 2003 and certainly prior to the last five year period of his instructor endorsement from 2010 to 2015. In those last five years, Mr Abraham's history has included three instances of very low level42 Neas, above n 6, at [17].43 Abraham, above n 1, at [12].44 Neas, above n 6, at [21].45 Abraham, above n 1, at [16].offending, namely speeding infringements. When viewed in totality and the context of his 70 hour a week heavy truck driving, the speeding offences and CVIRs have been given weight out of all proportion to the general assessment required on the other statutory criteria for a fit and proper person determination. I consider the Judge has misdirected himself in undertaking his assessment.Failure to consider relevant matters[81] In addition to misdirecting himself, I also consider that the Judge failed to consider relevant matters, which are detailed in this section. They are:(a) The Judge failed to focus on 2010 to 2015, being the most relevant period, following the receipt of the alleged notice. If he had done so, he would have seen Mr Abraham had three speeding infringements, which attracted fines and demerit points. The fourth, which the Judge alludes to, was withdrawn by leave.(b) The Judge failed to give consideration to Mr Abraham's explanationsas he ignored them.46(c) The Judge failed to take into account that Mr Abraham had a decade of no complaints or offending, which is a paramount consideration in licensing persons dealing with the public.(d) The Judge placed reliance on a history from 2003 – 2010, when Mr Abraham was approved as a fit and proper person.(e) The Judge took into account "offences" which were not prosecuted.(f) The Judge took into account an "offence" which occurred two yearsbefore the application and was not prosecuted.4746 At [14].47 Referred to at [11.45] of Mr Stevenson's affidavit.(g) The Judge says he does not take into account demerit points and GST tax related offences but he does not exclude them from his consideration.48(h) The Judge failed to take into account that the frequent stopping of Mr Abraham at the CVIU truck stops is due to the fact he is driving 70 hours a week.(i) The Judge fails to place weight on the distance travelled by Mr Abraham, when he has greater exposure to time on the road and distance travelled. Less weight should have been placed on infringements.Conclusion[82] I find that in undertaking his assessment of the fit and proper person criteria under ss 30C and 30D of the Act, the Judge has misdirected himself in law. He has overlooked relevant matters and taken into account irrelevant matters and in so doing, has made errors of law.[83] Mr Abraham's appeal is upheld. The District Court decision is overturnedand the NZTA Senior Adjudicators decision quashed.[84] There will be an order for costs on a 2B basis.Cull JSolicitors:Fortune Manning, AucklandPaul Murray, Palmerston North48 Abraham, above n 1, at [17].