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Advilkar v New Zealand Transport Agency [2017] NZDC 23068

Published 03 July 2019

Appeal against Land Transport Agency decision — suspension — disqualification from holding passenger endorsement — P endorsement — passenger endorsement — Uber — reserved judgment— Land Transport Act 1998, s 106. This was an appeal against a decision made by the respondent to suspend the appellant's passenger endorsement, disqualifying and prohibiting him from driving any vehicle being used in a passenger service for 18 months, disqualifying him from holding a passenger endorsement for 18 months and declining the appellants application for a transport passenger service license ("PSL"). The appellant has held a New Zealand drivers licence since June 2010 and added a passenger (“P”) endorsement in June 2013. The P endorsement expired in 2014. In March 2016, the appellant was registered by the respondent’s driver check system as an “employee” of Uber. At that time, he did not hold the appropriate transport PSL endorsement. In January 2017, the appellant made an application for a PSL endorsement so he could operate a taxi service using a small passenger service vehicle. The decision-maker conducted a review of all of the respondent’s files and, on 2 February 2017, reached the preliminary conclusion that the appellant was not a fit and proper person to hold a PSL and that there should be a period of disqualification of the P endorsement for 18 months. The essential issue on appeal involved the Court's assessment of the appellant’s fitness to hold a PSL and passenger endorsement as at the date of the hearing of the appeal and how that should affect the length of the suspension/disqualification that should be imposed. The Court took into account: that the period of suspension exceeded the range reasonably available to the decision maker; the recent legislative changes; the fact that Uber is a market disruptor that forces law change upon legislators by entering the market and obtaining public support for its services, noting the unfairness in punishing only those players at the bottom end of the resultant illegal activities; and the injustice in enforcement against a few of a class of offenders. The Court concluded that a reduction of the period of disqualification was justified, and that the appellant may be considered a fit and proper person to be the holder of a PSL and a P endorsement in eight months. Judgment Date: 11 October 2017.

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