McConnor v Auckland Transport
[2025] NZSC 97
•1 August 2025
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 50/2025 [2025] NZSC 97 |
| BETWEEN | JAMES JOHN MCCONNOR |
| AND | AUCKLAND TRANSPORT |
| Court: | Glazebrook, Ellen France and Miller JJ |
Counsel: | Applicant in person |
Judgment: | 1 August 2025 |
JUDGMENT OF THE COURT
AThe application for leave to appeal is dismissed.
BThe applicant must pay the respondents one set of costs of $2,500.
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REASONS
Introduction
The applicant, Mr McConnor, seeks leave to appeal from a decision of the Court of Appeal declining an application for review of the Deputy Registrar’s decision.[1] The Deputy Registrar’s decision was to decline the applicant’s application for waiver of security for costs in relation to his appeal from a decision of Associate Judge Brittain in the High Court rejecting his application for summary judgment and striking out his defamation claim.[2]
Background
[1]McConnor v Auckland Transport [2025] NZCA 152 (Hinton J) [CA judgment].
[2]McConnor v Auckland Transport [2024] NZHC 1709.
A vehicle registered in the applicant’s name was driven in a bus lane on an Auckland road on 15 October 2022. The first respondent, Auckland Transport, issued an infringement notice to the applicant for an offence under the Land Transport (Road User) Rule 2004. The Court of Appeal summarised the next steps as follows:[3]
[3] On 25 December 2022, Auckland Transport electronically referred the infringement fee to its debt collection agent, the second respondent, Baycorp (NZ) Ltd (Baycorp). On 31 March 2023, Auckland Transport followed the process in s 21 of the Summary Proceedings Act 1957 to commence proceedings in the District Court by automated electronic means in respect of the alleged infringement offence.
[4] Mr McConnor then filed a defamation claim against Auckland Transport and Baycorp NZ and sought summary judgment in respect of that claim. The claim was based on the proposition that each of the two “communications” above — Auckland Transport’s electronic referral to Baycorp and Auckland Transport’s proceeding under s 21 of the Summary Proceedings Act — constituted defamation.
[3]CA judgment, above n 1.
The applicant sought summary judgment as did both of the respondents.[4] The High Court, as we have said, found in favour of the respondents. The applicant appealed to the Court of Appeal. After the applicant’s appeal was filed in the Court of Appeal, security for costs was set at $14,120.[5] As noted above, the Deputy Registrar declined waiver and that decision was upheld on review by Hinton J.[6]
[4]In the alternative, the respondents sought an order striking out the claim.
[5]Court of Appeal (Civil) Rules 2005, r 35(3), (4) and (5).
[6]CA judgment, above n 1, at [16].
In dismissing the review application, the Court of Appeal said this:[7]
[12] The Judge held that Mr McConnor’s claim failed both because he was not, in fact, defamed by either communication, and because in any case his reputation was not harmed in a more than minor way. On the face of the claim and the judgment, Mr McConnor’s appeal is lacking in merit. Applying the test in [Reekie v Attorney-General],[[8]] this is not a case where costs are unlikely to be ordered against Mr McConnor.
[7]Footnotes omitted.
[8]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
Nor did the Court see any public interest in pursuing this claim. Hinton J said that a solvent appellant would not sensibly pursue this appeal and the respondents should have the protection provided by security for costs.
The proposed appeal
The main point the applicant wishes to raise on the proposed appeal is that the Court of Appeal erred because there was no consideration of his argument that the Associate Judge had no jurisdiction to preside over defamation proceedings. He says his proposed appeal has merit because the Associate Judge acted ultra vires in exercising that jurisdiction.
In opposing leave to appeal, the first respondent says that the applicant’s argument in relation to jurisdiction is plainly wrong in light of ss 20(1)(a) and 21 of the Senior Courts Act 2016. Under s 20(1)(a), “[a]n Associate Judge has the jurisdiction and powers of the High Court” in respect of “an application for summary judgment”. Under s 21(1), an Associate Judge has, in relation to proceedings properly before the Judge, “the same jurisdiction and power to make an order or exercise an authority as a Judge of the High Court” with the exception of the powers set out in s 22(4). Defamation proceedings are not explicitly excluded under s 22(4).
The first respondent also makes the point that the definition of “Judge” in s 2 of the Defamation Act 1992,[9] relied on by the applicant, does not explicitly exclude Associate Judges. The first respondent submits that the fact a plaintiff may seek a declaration under s 24 of the Defamation Act cannot exclude the Associate Judge’s jurisdiction where in fact no declaration is sought. The first respondent also annexes a schedule of the extensive number of previous defamation decisions, including summary judgment and strike-out applications, which have been dealt with by an Associate Judge.
[9]“Judge” is defined as a Judge of the High Court or of the District Court, as applicable: s 2(1) definition of “Judge”.
The second respondent endorses these submissions.
In determining the application, the Court of Appeal applied the settled approach in Reekie.[10] No question of general or public importance arises.[11] Rather, the proposed appeal would turn on the application of those principles to these facts.
[10]Reekie, above n 8.
[11]Senior Courts Act 2016, s 74(2)(a).
It is the case that Hinton J did not address the argument about jurisdiction specifically, but that argument had been dealt with by the Deputy Registrar. We interpolate here that, as the Deputy Registrar records, the question was addressed by the Associate Judge in the costs decision.[12] The Deputy Registrar said this:[13]
[23] I consider Mr McConnor’s claim as to Associate Judge Brittain's jurisdiction to determine the defamation proceedings and strike-out application has no merit. The Defamation Act 1992 does not prohibit an Associate Judge from presiding over proceedings. Similarly, section 20(1)(a) of the Senior Courts Act 2016 explicitly provides that an Associate Judge has jurisdiction and powers in the High Court with respect to applications for summary judgment, while section 21(1) affords a broader catch-all provision for judicial powers conferred. Associate Judge Brittain addressed this claim when issuing the decision on costs, noting he was satisfied he had jurisdiction to hear the proceeding under these sections. There is no relevant exception to these provisions elsewhere in the Senior Courts Act 2016.
[12]McConnor v Auckland Transport [2024] NZHC 2017. The Associate Judge noted that the jurisdiction argument had not been raised when the applications for summary judgment/strike-out were heard. The Associate Judge relied on ss 20(1)(a), 20(5) and 21(1) of the Senior Courts Act as providing jurisdiction: at [5].
[13]Footnote omitted.
In light of the various provisions cited by the Deputy Registrar and the respondents, we do not see any appearance of a miscarriage of justice as that term is used in the civil context.[14] The proposed appeal lacks sufficient prospects of success and the respondents should have the protection of security for costs.
Result
[14]Senior Courts Act, s 74(2)(b); and see Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].
The application for leave to appeal is dismissed.
The applicant must pay the respondents one set of costs of $2,500.
Solicitors:
United Legal Ltd, Auckland for Second Respondent
Copy to:
Bell Gully, Auckland
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