McConnor v Auckland Transport

[2025] NZHC 1035

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2805

[2025] NZHC 1035

BETWEEN

JAMES JOHN MCCONNOR

Applicant

AND

AUCKLAND TRANSPORT

First respondent

BAYCORP (NZ) LIMITED

Second respondent

Hearing:

On the papers

Appearances:

Applicant in person

PMS McNamara and C J Ryan for first respondent

Date of judgment:

2 May 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 2 May 2025 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Simpson Grierson, Auckland

Copy to:

Applicant

MCCONNOR v AUCKLAND TRANSPORT [2025] NZHC 1035 [2 May 2025]

[1]                 James McConnor seeks leave to appeal from my 15 August 2024 judgment,1 on Auckland Transport’s interlocutory application, relevantly staying his proceeding until he pays $2,500 as security for costs into court.2 By consent, I am to address the application on the papers.

[2]                 Mr McConnor would argue on appeal I erred in law by both deciding without regard to the merits of his case and emphasising his failure to exhaust appeal rights, rendering my decision arbitrary given his pleading and Auckland Transport’s contended “patent lack of defence”.

Approach to applications for leave to appeal

[3]                 Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. The object of requiring such leave is:3

… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the [appellate] Court, while preserving the integrity of the law and the interests of justice.

[4]                 It is “well settled” the approach to leave is as a “filtering mechanism” for which “[t]he threshold is high”:4

… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

The question is if there is something justifying intermediate appeal.

Discussion

[5]                 An incorrect grant of security for costs is not readily susceptible to final appeal. If unmet, there may be no judgment for final appeal. To that extent, intermediate

1      McConnor v Auckland Transport [2024] NZHC 2290.

2      My decision also struck out Mr McConnor’s pleading against the second respondent (Baycorp) and struck out Baycorp as a party: at [35]–[36]. The proposed appeal does not engage Baycorp.

3      Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.

4      Stockman v Health and Disability Commissioner [2022] NZCA 511 at [13], citing Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] (citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]).

appeal may be justified. But that can only be so if the exercise of judicial discretion in granting security was in some manner impugnable.

[6]                 Mr McConnor would argue on appeal, on the contended merits of his case, I erred in deciding on balance Auckland Transport’s interests in obtaining security outweighed his interests in pursuing judicial review against it as a constitutional right.

[7]                 I fundamentally disagree. I precisely had  regard  for  the  cases  on  which Mr McConnor now primarily relies.5 Having satisfied myself of Mr McConnor’s likely inability to pay costs,6 I assessed his claim had little chance of success by reason of its prospectively abusive nature.7 His resort to alternative and unorthodox challenge to the procedures leading to imposition of a fine caused me to conclude the balance fell in Auckland Transport’s favour,8 maintaining his right to pursue judicial review subject to security. The exercise of my discretion exactly was informed by applicable principle. No other error is asserted. Intermediate appeal remains unjustified.

[8]                 If I am wrong in that assessment, leave is available directly from the Court of Appeal.9

Result

[9]The application for leave to appeal my decision is dismissed.

—Jagose J

5      McConnor v Auckland Transport, above n 1, at [6] and [8].

6 At [18].

7 At [20].

8 At [20].

9      Senior Courts Act, s 56(5).