Following the NZ Transport Agency‘s notification it would revoke Stan Semenoff Logging Ltd‘s service licence from 22 March, SSL challenged the decision in the Whangarei District Court and won an interim stay of the order, pending an appeal.

In its defence, SSL gave a number of grounds for a review, and judge Woolford said the company had an arguable case that NZTA “fell into error through the decision-making process”.

“It is arguable that NZTA misconstrued s 30C of the Act, and in determining that the persons in control were not fit and proper persons, it relied on general alleged failures of SSL as a corporate entity without considering whether each of the individual persons in control was, in fact, responsible for SSL‘s alleged failures,” the judgement read.

In his affidavit evidence, Alexander Semenoff maintained that SSL did not tolerate speeding and utilised a radar speed gun to randomly monitor driver speeds on rural roads. He also pointed to SSL‘s ORS rating, which amounted to a good level of compliance and said SSL had taken steps in response to NZTA‘s prior audits, as evidenced by the action plans it provided to NZTA.

The judge attached some significance to NZTA‘s own ORS rating of SSL. Events included in operator safety ratings are certificates of fitness inspections, roadside inspections, and certain types of offending.

“The ratings are calculated in accordance with the Land Transport Rule: Operator‘s Safety Rating 2008. SSL‘s overall score is said to be 1.179, which falls comfortably within the overall score range of 0.5 to 2.1, which is described by NZTA as a good level of compliance. As part of that score, SSL had a pass rate in testing stations of 93 percent, a roadside pass rate of 68 percent and nine traffic offences in the two-year period between 1 July 2016 and 30 June 2018.”

The court felt immediate revocation of SSL‘s licence would be “catastrophic”, leading to the termination of employment of 55 people. It would also have an effect on contracts with suppliers and logging operators, and even if SSL were successful in its judicial review application, they would find it extremely difficult to recover lost business.

An interim order suspending the revocation was made, subject to the following conditions, which were proposed by NZTA and accepted by SSL:

1. SSL is to nominate a person to conduct daily checks of the driver log book forms received, including comparing the log books to the GPS data and/or weigh dockets for the relevant vehicle. SSL is required to notify NZTA within 24 hours of any identified breaches of the Land Transport Act or Land Transport Rule: Work Time and Log Books 2007.

2. Daily checks of the log books to be recorded on SSL‘s copy of the log book and copies of these, the GPS records and corresponding pay slips for the driver to be provided to NZTA on a weekly basis.

3. SSL to notify NZTA within 24 hours of any traffic offences or any non-compliance detected by police, including accidents, speeding infringements and roadside inspection failures.

4. SSL to notify NZTA within 24 hours of any speeding alarms detected by the speed limitation systems or any instances where the GPS reports/records have identified vehicles which have exceeded 90 kilometres an hour and to confirm what disciplinary action will be taken against the relevant driver.

Meredith Connell managing partner and NZTA regulatory function lead Steve Haszard said the agency took a philosophical view regarding the stay.

“Semenoff has the right to appeal the decision. The appeal may not be heard for several months, and in the meantime the court has imposed conditions under which Semenoff can continue to operate.”

Haszard said the courts take a conservative approach, considering that if a business is shut down immediately and an appeal not heard for months, even if the defendant subsequently wins the appeal, their business may have suffered too much damage to recover.

“It‘s not unusual for the courts to offer an interim order, but there are usually conditions attached to it.”

Haszard said there have been previous service revocations and there are likely to be more now the NZTA is taking a stronger enforcement position.

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