Hossain v The New Zealand Transport Agency
| Jurisdiction | New Zealand |
| Judge | Venning J |
| Judgment Date | 14 September 2011 |
| Neutral Citation | [2011] NZHC 1107 |
| Docket Number | CIV-2011-404-004986 |
| Court | High Court |
| Date | 14 September 2011 |
[2011] NZHC 1107
Venning J
CIV-2011-404-004986
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Application for interim relief under s8(1)(c) Judicature Amendment Act 1972 (interim orders) for reinstatement of a taxi driver licence pending determination of judicial review proceedings — applicant charged with driving offences and respondent suspended licence pending the outcome of charges — charges dismissed by District Court — respondent withdrew suspension but disqualified applicant from holding taxi driver licence taking into account previous traffic infringements — whether applicant entitled to interim relief of reinstatement of licence — whether applicant's personal hardships could be a ground of entitlement for relief — whether respondent acted ultra vires in cancelling the licence.
A Comeskey for Plaintiff/Applicant
A McClintock for Defendant/Respondent
This judgment was delivered by me on 14 September 2011 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
The applicant makes his living as a taxi driver. The respondent Authority disqualified him from holding a driver licence passenger endorsement (in other words from operating as a taxi driver) for a period of four years from 25 August 2011. The applicant has appealed against that decision in the District Court. He has also issued judicial review proceedings seeking to have the disqualification set aside or quashed.
This judgment deals with his application for interim relief. He seeks an interim order reinstating his taxi licence pending determination of the substantive judicial review proceedings.
The applicant is a 44 year old Bangladeshi. He has lived in New Zealand since 2000. He is a self-employed taxi driver. He is married and has two children.
In June 2008 the applicant was granted a licence entitling him to drive a taxi. From that time on he has been working as a taxi driver. He has, in that time, committed a number of traffic infringements, including running two red lights. The main issue however, arises from his actions on 19 September 2010.
On that day the applicant carried out a u-turn in Karangahape Road. U-turns were prohibited at the spot he carried out the manoeuvre. Constable Pamplim, a police motorcyclist, stopped the applicant and issued an infringement notice.
After issuing the ticket the officer told the applicant he could go, but then remembered there was an alert relating to the applicant's car. The officer stepped back to the driver's door and said “Hold on before you go”. Although the applicant does not accept what followed, the officer says he told the applicant to stop and reached in through the open window of the car to try and stop the applicant driving off. The officer says that despite that, the applicant started to drive away. The officer still had his arm inside the car. The applicant started to accelerate and tried to push the officer's hand away. Although the officer shouted “Stop, stop” several times the applicant continued accelerating, with the officer running beside him. The officer managed to pull clear of the car. The applicant was stopped a short distance away by other police officers. The applicant was then arrested and spoken to at the station. He was charged with failing to stop when required, failing to remain stopped and operating a vehicle in a dangerous manner.
After the applicant was charged, the respondent suspended the applicant's taxi licence pending the outcome of the prosecution (or earlier withdrawal at the discretion of the Agency).
On 19 May 2011 Judge Cunningham sitting in the District Court at Auckland stayed or dismissed the charges against the applicant on the basis of undue, systematic delay (it being the third time the case had been before the Court for fixture). The prosecution was ready to proceed that day but a Svengali interpreter (as was required by the applicant) was not available.
Following the decision of the District Court, the respondent withdrew the suspension but gave notice that Mr Beedell, the respondent's delegate, proposed to make an assessment whether the applicant was a fit and proper person to hold the taxi licence. On 13 June 2011 Mr Beedell gave the applicant notice of the respondent's proposal to disqualify him as from 20 July 2011. The applicant was advised that he could make submissions concerning the proposed disqualification. Counsel responded with full submissions on the applicant's behalf on 12 July 2011. He challenged the respondent's right to consider the applicant's actions on 19 September 2010.
Mr Beedell then replied with a letter of 2 August 2011 confirming he considered he was entitled to take into account the actions of the applicant on 19 September and invited further submissions. The applicant again made further submissions through Mr Comeskey. After considering those submissions, the respondent confirmed the decision to disqualify the applicant by notice dated 15 August 2011, effective from 25 August 2011.
The applicant has appealed the decision to disqualify him from holding a taxi driver's licence. The appeal is in accordance with s 106 of the Land Transport Act 1998. The appeal is to the District Court. Counsel advise it should be heard within the next six to eight weeks. There is, however, no jurisdiction for the District Court to grant a stay pending the hearing of the appeal. 1
At the same time the applicant commenced these judicial review proceedings alleging the decision was wrong in law as the respondent acted ultra vires in making the decision based on “offences which were not proven at law, and for which no convictions were entered against the [applicant]”. He also pleads the decision was made contrary to the tests set out in ss 30C and 30D of the Land Transport Act and further, that the respondent erred in law by not taking into account s 27 of the New Zealand Bill of Rights Act 1990.
Section 8(1)(c) of the Judicature Amendment Act 1972 reads:
8 Interim orders
(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:
…
(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.
As the applicant's licence has been revoked, the interim relief sought is not so much to preserve the applicant's position but to effectively reinstate it. However, Ms McClintock accepted that a purposive approach is to be taken to the interim relief available under s 8(1) and if otherwise appropriate, the order could be made. That is the approach that was taken in other cases under the Land Transport Act: Pohoikura Waitoa Logging Limited v The New Zealand Transport Agency 2 and Cheyenne Haulers Limited v The New Zealand Transport Agency. 3
The issue is whether the applicant can satisfy the Court the interim relief is reasonably necessary to preserve the position pending the hearing of the substantive application for review. If that condition is satisfied the Court has a wide discretion to consider all circumstances of the case, including the apparent strengths or weaknesses of the claim and all the repercussions, public or private of granting interim relief: Carlton & United Breweries Ltd v Minister of Customs. 4
There is a further overlay in a case such as the present, where Parliament has determined that a stay is not available pending the hearing of an appeal from a decision disqualifying a licence holder. In Director of Civil Aviation v Air National Corporate Ltd 5 the Court expressed the preliminary view:
[30] … Too ready a resort to s 8 runs the risk of undermining such prohibitions and creating an incentive for appellants to launch judicial review proceedings simply to access the High Court's s 8 jurisdiction. At the very least, this will be a relevant consideration to the exercise of the discretion.
Related to that is the issue of public safety. The licensing of taxi operators requires consideration of public safety issues.
Mr Comeskey emphasised the financial impact on the applicant and the hardship that the disqualification has had, and will have, on him and his family. The applicant is at present the sole income earner in the household. He and his wife have a mortgage. They are reliant on the applicant's income as a taxi driver to meet the outgoings under the mortgage and other household expenses.
However, as Ms McClintock submitted Parliament would have been aware that a self-employed taxi...
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