Rafiq v Auckland Transport

[2024] NZHC 2236

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2612

[2024] NZHC 2236

BETWEEN

RAZDAN RAFIQ

Plaintiff

AND

AUCKLAND TRANSPORT

Defendant

Hearing:	5 August 2024
Appearances:	Mr Razdan Rafiq is a self-represented Plaintiff Jade Magrath for the Defendant
Judgment:	23 August 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Plaintiff’s application for summary judgment; defendant’s application for security for costs]

This judgment was delivered by me on 23 August 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Simpson Grierson (Padraig McNamara/Jade Magrath), Auckland, for the Plaintiff

Copy for:

Mr Razdan Rafiq, Auckland.

RAZDAN RAFIQ v AUCKLAND TRANSPORT [2024] NZHC 2236 [23 August 2024]

TABLE OF CONTENTS

Paragraph

Introduction  [1]

Background  [4]

Application for summary judgment  [11]

Mr Rafiq’s position  [11]

Auckland Transport’s position  [12]

Application for security for costs  [13]

Auckland Transport’s position  [13]
Mr Rafiq’s position  [18]

Legal principles

Application for summary judgment  [19]
Application for security for costs  [22]

Analysis  [30]

Application for summary judgment  [30]

Mr Rafiq has not demonstrated that his claim is unanswerable         [32]
Auckland Transport has an arguable defence  [34]
There are material disputes of fact  [36]

Conclusion in relation to summary judgment application                  [37]

Application for security for costs  [38]

Auckland Transport’s position:  [38]

First Stage: Threshold Test  [38]

Second Stage:  exercise of the Court’s discretion                   [40]
Merits of the claim  [40]
Cause of impecuniosity  [43]
Balancing the interests of justice  [45]
Mr Rafiq’s position  [46]
Conclusion in respect of security for costs application  [48]
Amount of security  [49]
Stay of proceeding  [51]

Result  [52]

Orders  [53]

Introduction

[1]                 The plaintiff in this proceeding, Mr Razdan Rafiq (Mr Rafiq) has applied for summary judgment on his claim against Auckland Transport.

[2]Auckland Transport has applied for security for costs against Mr Rafiq.

[3]                 Auckland Transport opposes Mr Rafiq’s application for summary judgment, and Mr Rafiq opposes Auckland Transport’s application for security for costs. Both applications were heard together on 5 August 2024.

Background

[4]                 In 2017, Mr Rafiq was issued two infringement notices by Auckland Transport, both relating to offences on 12 September 2017.

[5]                 On 15 November 2017, these notices were referred to a debt collection agency, Baycorp.

[6]                 Auckland Transport advises this is the usual process for notices which are unpaid after 28 days of service, and if liability is not denied by way of request for a court hearing.1

[7]                 Mr Rafiq filed a statement of claim and an application for summary judgment both dated 27 October 2023.

[8]                 The substance of Mr Rafiq’s claim is that the notices were referred to Baycorp for collection despite the fact he wished to defend them in the District Court, which is in contravention of due process for these disputes.

[9]                 Mr Rafiq’s claim is made on the basis that Auckland Transport’s actions were contrary to the Credit Contracts and Consumer Finance Act 2003 (CCCFA), the Land

1      Land Transport (Infringement and Reminder Notices) Regulations 1998; Summary Proceedings Act 1957, s 21.

Transport Act 1998 (LTA), the Criminal Procedure Act 2011 (CPA) and the New Zealand Bill of Rights Act 1990 (NZBORA). He further claims that this has negatively affected his credit rating and caused him loss.

[10]             Auckland Transport denies the claims. While acknowledging the various legal defences available to it, Auckland Transport considers the claim is unfounded considering the charges against Mr Rafiq were dismissed in the District Court due to Auckland Transport being unable to offer evidence at the hearing. There is therefore no debt owed by Mr Rafiq and, accordingly, no basis for the dispute in his application.

Application for summary judgment

Mr Rafiq’s position

[11]             Mr Rafiq submits that Auckland Transport has no defence to his claim on the following grounds:

(a)Auckland Transport unlawfully and unreasonably referred the infringement fines to the debt collection agency, Baycorp, to enforce maximum fines issued under the LTA. Baycorp cannot be the authorised agency for Auckland Transport to enforce collection of fines as a civil debt. Auckland Transport has no jurisdiction to recover and/or impose its own sentence by way of payments in circumstances where fines are disputed in the District Court.

(b)There is a breach of Mr Rafiq’s rights to defend the fine charges.

(c)On 14 May 2024, Brewer J did not strike out the summary judgment proceedings as an abuse of the court process.

(d)Auckland Transport operated the fines imposed on him contrary to the Sentencing Act 2002 (SA), the CPA, the Summary Proceedings Act 1957 (SPA), the NZBORA, and the LTA.

(e)Declaratory and monetary orders are sought for the claim in the interests of justice. Misapplication of facts and laws by Auckland Transport has led to a substantial miscarriage of justice.

Auckland Transport’s position

[12]Auckland Transport opposes the summary judgment on the following grounds:

(a)The claims against Auckland Transport as pleaded are unclear and insufficiently particularised.

(b)To the extent that Auckland Transport understands Mr Rafiq’s claim to allege that it failed to follow the correct process for enforcing the infringement fines against him. This is disputed and Auckland Transport has outlined an arguable case that it has a defence to such a claim.

(c)Auckland Transport has filed affidavit evidence credibly disputing several of the factual premises of Mr Rafiq’s claim, and that evidential contest cannot be resolved on the basis of affidavit evidence alone.

(d)No evidence has been  adduced, or a clear legal basis provided by    Mr Rafiq to support an order for general or compensatory damages in the sum of $1,000,000 or aggravating exemplary damages to a further sum of $1,000,000.

(e)The apparently novel aspects of Mr Rafiq’s claim and the declaratory relief sought further weigh against the Court exercising its discretion to grant summary judgment.

Application for security for costs

Auckland Transport’s position

[13]             Auckland Transport seeks security for costs and a stay of proceedings pending security provided through an application filed on 27 March 2024. Orders are sought on the basis that there is a reason to believe Mr Rafiq would be unable to pay Auckland Transport’s costs if he is unsuccessful in this proceeding. Auckland Transport calculated the scale costs for the proceedings as a whole to be approximately $30,000. Of this, $12,000 relate to the summary judgment application.

[14]             For Auckland Transport, Ms Magrath endorses a two-stage approach to considering the security for costs application. In relation to the first stage, she submits the Court should consider the threshold test of whether there is reason to believe the plaintiff will not be able to pay the defendant’s costs in the event his claim is unsuccessful. To this point, Ms Magrath submits that there is  credible evidence of Mr Rafiq’s inability to meet an adverse costs award:

(a)Mr Rafiq, in an affidavit filed in opposition to the security for costs application dated 24 April 2024, stated he cannot afford to pay any security for costs as he is on a sickness benefit and earning $397.00 per week.

(b)Mr Rafiq’s applications were filed along with a waiver for the filing fee on the basis he was financially dependent on the jobseeker benefit.

(c)Before filing its security application, Auckland Transport wrote  to  Mr Rafiq requesting evidence that he could satisfy a costs award. No such evidence was provided.

(d)Mr Rafiq, in the affidavit filed in support of his applications, described himself as having no physical address or occupation.

(e)Mr Rafiq has also been found to be impecunious in a recent High Court security for costs decision.2

2      Rafiq v Latitutde Financial Services Ltd [2023] NZHC 1690.

[15]             Ms Magrath submits that the Court should find it just to exercise its discretion in favour of a security for costs order taking account of the following factors:

(a)Merits of the claim: Mr Rafiq’s claim is without merit and has very limited prospect of success. Mr Rafiq has a history of bringing unmeritorious claims. In 2015, he was declared a serial litigant per s 88B of the Judicature Act 1908 and barred from bringing any new civil claims without leave.3 The restriction was lifted in February 2022.4 Since then, Mr Rafiq has brought a large volume of cases against a range of public and private entities.5 Mr Rafiq also has a history of failing to pay court-ordered costs, fines and other debts.6

(b)Cause of impecuniosity: Mr Rafiq is impecunious for reasons unrelated to Auckland Transport’s actions and was so, long before the events giving rise to the present proceedings.

(c)Balancing the interests of the parties: Overall, there is a real likelihood that Mr Rafiq’s claim will fail and Auckland Transport will then be unable to recover costs against him. Auckland Transport should not be put to the significant expense of defending proceedings without being able to enforce a costs order at their conclusion.

[16]Auckland Transport therefore seeks the following orders:

(a)Mr Rafiq is to provide initial security to Auckland Transport of

$30,000.

3      Attorney-General v Rafiq [2015] NZHC 1153.

4      Rafiq v Whata [2019] NZHC 1193 at [37].

5      Counsel refers to proceedings brought or decided in 2023: Rafiq v Chief Executive for the Department of Internal Affairs [2024] NZSC 69; Rafiq v Chief Executive for the Department of Internal Affairs [2024] NZSC 36; Rafiq v Latitude Financial Services [2023] NZHC 1831;

CIV-2023-404-3024 and CIV-2023-404-2908 Rafiq v New Zealand Customs Service;

CIV-2024-092-164 Rafiq v New Zealand Post Group; and CIV-2024-404-655 Rafiq v Supercity Towing.

6      Rafiq v Secretary for Internal Affairs and Chief Executive for Department of Internal Affairs

[2023] NZHC 127 at [14], which records Mr Rafiq being adjudged bankrupt for failing to pay

$13,645 following an unsuccessful defamation claim, debts to Inland Revenue and BNZ Collection House Ltd totaling $146,979.05 and fines to the Ministry of Justice.

(b)A tranche of $12,000 is to be paid immediately into the Court in relation to the summary judgment application.

(c)All subsequent legal actions in these proceedings are to be paused until the initial security payment has been paid.

(d)Leave is reserved for Auckland Transport to apply for further security in respect of the costs of trial if the matter is set down for a hearing.

[17]             Auckland Transport also seeks costs in respect of the security for costs application.

Mr Rafiq’s position

[18]             Mr Rafiq disputes that Auckland Transport has a legal basis for its claim for security for costs. He submits Auckland Transport’s application is being advanced on the basis of unlawful actions it took in referring the relevant infringement notices to collection in contravention of due process. Mr Rafiq also advises that he cannot meet the security for costs financially as he is presently on a sickness benefit. Accordingly, the application should be dismissed, as it would otherwise be a miscarriage of justice.

Legal principles

Application for summary judgment

[19]Rule 12.2(1) of the High Court Rules 2016 provides:

12.2 Judgment when there is no defence or when no cause of action can succeed.

(1)The court may give judgment against a defendant if the plaintiff  satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[20]             The relevant principles governing a summary judgment application are well established:7

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart. The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable: Eng Mee Yong v Letchumanan. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel.

[21]The wording of r 12.2 “may give judgment” indicates a residual discretion.

Having regard to the various authorities, the position appears to be as follows:8

(a)The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.

(b)The residual discretion may be invoked to avoid oppression or injustice to the defendant where:

(i)The proceeding involves the actions or possible liability of a third party which is not before the court;

(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;

(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or

(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as a matter of discretion or because the court cannot be satisfied that the defendant has no defence.

7      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).

8      Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].

(c)Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.

Application for security for costs

[22]             Applications for security for costs are pursuant to r 5.45 of the High Court Rules 2016, which provides:

5.45     Order for security of costs

(1)Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)that a plaintiff—

(i)is resident out of New Zealand; or

(ii)is a corporation incorporated outside New Zealand; or

(iii)is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.

(2)A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3)An order under subclause (2)—

(a)requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i)by paying that sum into court; or

(ii)by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and

(b)may stay the proceeding until the sum is paid or the security given.

(4)A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.

(5)A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.

(6)References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a

document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

[23]             In determining applications under r 5.45, the Court will generally follow these steps:9

(a)Has the applicant satisfied the Court of the threshold under the provision?

(b)How should the Court exercise its discretion?

(c)What amount should be fixed for the security for costs?

(d)Should a stay be ordered?

[24]             The decision to order security, and the quantum of such security, are at the Court’s discretion. It is generally not to be to be fettered by constructing “principles” from the facts of previous cases.10 But the Court is to balance the competing interests—being the defendant’s interest in protection from a costs order that is incapable of fulfilment and the plaintiff’s right of access to justice.11 Courts will be slow to make an order for security that will stifle a genuine claim.12 This balancing exercise is the Court’s overriding consideration.13

[25]As above, the Court should assess whether there is:14

… credible (that is, believable) evidence of surrounding circumstances from which it may reasonably be inferred that the [party] will be unable to pay the costs. This does not, of course, amount to proof that the [party] will, in fact, be unable to pay them.

9      Busch v Zion Wildlife Gardens Ltd (in rec and in liq) [2012] NZHC 17 at [2].

10     A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [13] and [14].

11     Clear White Investments Ltd v Otis Trustee Ltd [2016] NZHC 2837at [4].

12     Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737at [3].

13     Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [24](c).

14   Concorde Enterprises Ltd v Anthony Motors (Hutt) Ltd (No 2) [1997] 1 NZLR 516 (HC) at 519; NZ Kiwifruit Marketing Board v Maheatataka Coolpack Ltd (1993) 7 PRNZ 209 (HC); Stephenson v Jones [2013] NZHC 638.

[26]             The Court will assess the claim’s merits and prospects of success, to the extent that is possible at an early juncture.15 The Court will also consider the extent to which the plaintiff’s impecuniosity may have been caused by the defendant’s conduct.16

[27]             A plaintiff’s unwillingness to pay previous judgment debts weighs in favour of an order for security.17 But whether a plaintiff has been a responsible litigant is secondary to the issue of whether the lack of merit of the claim justifies security that would prevent the claim from proceeding.18

[28]             Quantum of security is discretionary and is assessed in the round. It need not be fixed by reference to likely cost awards.19 It is to be what the Court thinks fit in all the circumstances.20

[29]A Court will generally stay a proceeding until the security ordered is given.21

Analysis

Application for summary judgment

[30]             The issue to be determined in respect of Mr Rafiq’s application for summary judgment is whether the following defences raised by Auckland Transport justify refusal of summary judgment:

(a)Mr Rafiq has not demonstrated that his claim is unanswerable.

(b)Auckland Transport has an arguable defence.

(c)There are material disputes of fact.

15     Meates v Taylor (1992) 5 PRNZ 524 (CA); and Lee v Lee [2019] NZCA 345 at [73].

16     Bell-Booth Group Ltd v Attorney-General (1986) 1 PRNZ 457 (HC).

17     Taylor v Adair [2018] NZHC 1975 at [30]–[31], citing Burden v Dixie Cummings New Zealand

[2016] NZHC 729 at [22] and Mawhinney v Auckland Council [2014] NZHC 3207.

18     Wright v Attorney-General [2019] NZHC 3046 at [26].

19     Sharp v Pillay [2017] NZHC 647; and Red 9 Ltd v The Learning Ladder Ltd (in liq) [2021] NZCA 284 at [30].

20     A S McLachlan Ltd v MEL Network Ltd, above n 10.

21     Tomanovich Holdings Ltd v Gibbston Community Water Co 2014 Ltd [2018] NZHC 990 at [68] and [85].

[31]I deal with each of these in turn.

Mr Rafiq has not demonstrated that his claim is unanswerable

[32]             Ms Magrath submits that the statement of claim alleges that Auckland Transport has variously acted contrary to the CCCFA, the LTA, the CPA and s 25 of the NZBORA. She also refers to Mr Rafiq’s submissions in which he claims that Auckland Transport has also acted contrary to the SA and the SPA. Ms Magrath submits that for the most part, it is unclear specifically what statutory duties Mr Rafiq alleges Auckland Transport to have breached and therefore, what allegations Auckland Transport is required to rebut.

[33]             Ms Magrath points to Mr Rafiq’s submissions in support of the summary judgment application which simply states: “Auckland Transport has no defence to that cause of action. There is real merit to that application”. She submits that Mr Rafiq’s legal submissions are brief and non-specific, and he has failed to clearly articulate the merits of his claim and the lack of an arguable defence from Auckland Transport. Accordingly, he has not discharged the burden to prove his claim is unanswerable.

Auckland Transport has an arguable defence

[34]             Ms Magrath submits that Auckland Transport rejects the allegations that it acted beyond its jurisdiction to collect outstanding traffic infringement fees and/or failed to refer the infringement offences to the District Court. She points to the evidence of Ms Karena England, an in-house legal counsel for Auckland Transport, and her affidavit which outlines that:

(a)Auckland Transport’s statutory functions under the Local Government (Auckland Council) Act 2009 (the LGACA) include enforcement functions in relation to infringement offences under the LTA.

(b)Under the LGACA Auckland, Transport can delegate its statutory functions, for example by engaging Baycorp to assist with the administration of unpaid infringement fees.

(c)The SPA describes the process that must be followed after the issue of an infringement notice under the LTA and Land Transport (Infringement and Reminder Notices) Regulations 1998 (LTR).

(d)Auckland Transport followed the standard SPA process in relation to Mr Rafiq’s unpaid infringement fees. In particular, once it received a request from Mr Rafiq for a hearing in relation to the notices, it promptly lodged both matters with the District Court and notified Baycorp to cease collecting the unpaid fees, pending the outcome of the District Court hearing.

[35]             In response to Mr Rafiq’s claims that Auckland Transport’s actions have caused loss by damaging his credit history, Ms Magrath points to Ms England’s evidence which confirms that Baycorp was directed to cease collecting the fines by February 2018, and the charges against Mr Rafiq were dismissed in September 2018. Accordingly, she submits that there were no outstanding debts owed by Mr Rafiq in relation to either infringement offences that could have adversely impacted his credit history or rating when he was declined an application for a Kiwibank credit card in December 2022.

There are material disputes of fact

[36]             Ms Magrath submits that Ms England’s affidavit outlines several disputed facts that cannot be resolved by way of affidavit evidence.  This includes the timing of  Mr Rafiq’s request for a hearing; the timing of Auckland Transport’s direction to Baycorp to cease collecting the infringement fees; whether Auckland Transport referred matters to the District Court and whether Auckland Transport’s actions had any impact on Mr Rafiq’s credit rating at all.

Conclusion in relation to summary judgment application

[37]             I am of the view that Mr Rafiq’s application for a summary judgment should be dismissed. The reasons for this are:

(a)Mr Rafiq has not demonstrated his claim is unanswerable. The claims for breach of a number of statutes are not sufficiently particularised to reach any view as to whether they are unanswerable or not.

(b)Auckland Transport has an arguable defence that it has followed the procedure in respect of handling Mr Rafiq’s infringement notices. Accordingly, there is nothing unlawful in their actions as alleged in Mr Rafiq’s claim.

(c)There are material disputes of fact, in particular, surrounding the request for a District Court hearing which Auckland Transport claims was made as soon as Mr Rafiq’s request for a hearing was received. The disputed facts cannot be resolved on affidavit evidence. Accordingly, summary judgment cannot be granted.

Application for security for costs

Auckland Transport’s position

First Stage: Threshold Test

[38]             Ms Magrath’s submits that there is no credible evidence from which to infer that Mr Rafiq would be able to meet an adverse costs award in favour of Auckland Transport in these proceedings. She points to the following:

(a)In an affidavit filed in opposition to the security for costs application on 24 April 2024, Mr Rafiq himself has stated that he “cannot afford to pay the security for costs” as he is on a sickness benefit and earning

$397.00 per week.

(b)Along with filing his statement of claim and application for a summary judgment on 27 October 2023, Mr Rafiq filed an application for waiver of the $1350.00 filing fee on the basis that he is financially dependent on a jobseeker benefit of $378.99 per week.

(c)Before filing his security for costs application in March 2024, Auckland Transport wrote to Mr Rafiq requesting evidence that he could satisfy a costs award, but no such evidence was provided.

(d)In an affidavit described at (a) above, and in an affidavit filed in support of the summary judgment application on 24 April 2024, Mr Rafiq describes himself as being of “no physical address, no occupation”.

(e)Mr Rafiq has been found to be impecunious in a recent High Court security for costs decision.22

[39]             Ms Magrath submits the threshold test is clearly met, and the circumstantial evidence supports the conclusion that Mr Rafiq is impecunious and would be very unlikely to pay any costs award if his application for summary judgment or substantive claim is unsuccessful.

Second stage: exercise of the Court’s discretion

Merits of the claim

[40]             Ms Magrath submits that Mr Rafiq’s claim is without merit, and it has very limited, if any, prospect of success for the reasons set out at [32] to [36]. She submits that Mr Rafiq has a history of bringing unmeritorious claims. She notes that in 2015, he was declared a serial litigant under s 88B of the Judicature Act 1908 and barred from bringing any civil claim without leave on the basis that he had “persistently, without reasonable ground, instituted vexatious legal proceedings in the Human Rights Review Tribunal, the District Court, the High Court, the Court of Appeal and the Supreme Court”.23

[41]             Ms Magrath notes that the restriction on Mr Rafiq bringing proceedings was lifted on 28 February 2022 and since then, he has brought a large volume of cases against a range of public and private entities.24 She submits that for the reasons noted

22     Rafiq v Latitude Financial Services Ltd [2023] NZHC 1690.

23     Attorney-General v Rafiq [2015] NZHC 1153.

24     Proceedings referred, above n 5.

above, Mr Rafiq’s claim has a very low prospect of success and is consistent with his history of bringing unmeritorious claims.

[42]             Ms Magrath submits that Mr Rafiq also has a history of not paying Court- ordered costs, fines and other debts, and refers to Rafiq v Secretary for Internal Affairs and Chief Executive for the Department of Internal Affairs. 25

Cause of impecuniosity

[43]             Ms Magrath submits that Mr Rafiq is impecunious for reasons unrelated to Auckland Transport’s actions, which are the subject of the claim. She notes that he was impecunious long before the events giving rise to the present claim occurred.

[44] She submits that while Mr Rafiq does allege that Auckland Transport’s pursuit of unpaid infringement fees has adversely affected his credit history, this is denied for the reasons set out at [35]. She submits there is no credible evidence of a causal link between the alleged actions of Auckland Transport and Mr Rafiq’s impecuniosity.

Balancing the interests of the parties

[45]             Ms Magrath submits that balancing the interests of the parties supports the view that security for costs should be ordered as:

(a)There is a real likelihood that Mr Rafiq’s claim will fail and that Auckland Transport will then not be able to cover the costs award from him because he is impecunious. It is reasonable in the circumstances of the case for Auckland Transport to have security for the payment of its costs.

(b)The case is likely to be costly to defend for the reasons including that Mr Rafiq is self-represented and his handling of this matter has already substantially escalated Auckland Transport’s expenses. She notes that

25     Rafiq v Secretary for Internal Affairs and Chief Executive for the Department of Internal Affairs

[2023] NZHC 127 at [14].

after Mr Rafiq lodged the present claim, he lodged an almost identical claim, couched as an application for judicial review which was struck out on 14 May 2024 as an abuse of the Court’s process.

(c)Auckland Transport should not be put to the significant expense of defending these proceedings as it is a council-controlled organisation that is entirely funded by public money from taxpayers and ratepayers and has obligations to operate in a financially responsible manner. Accordingly, if Auckland Transport successfully defends Mr Rafiq’s claim, any unrecoverable losses suffered will ultimately be borne by ratepayers. She submits that Auckland’s ratepayers should not be put to further unrecoverable and possibly excessive costs defending an over-complicated and prolonged claim that fundamentally lacks merit.

Mr Rafiq’s position

[46]In opposition to an order being made for security for costs, Mr Rafiq submits:

(a)Auckland Transport has no legal basis whatsoever to apply for an application for security for costs at an interlocutory stage.

(b)Auckland Transport unreasonably, unlawfully, and contrary to the requests for a court hearing in the District Court without leave of the Judge or the Court, referred the infringement fines to Baycorp to recover the amount imposed under the fines in accordance with the LTA.

(c)Auckland Transport failed to establish any lawful jurisdiction to exercise its right to have the money collected by civil means and by avoiding the criminal proceedings in the District Court, as requested. Auckland Transport breached the normal or ordinary Court procedures to have those infringement fines adjudicated. Auckland Transport unlawfully directed New Zealand Police not to answer emergency calls on 111 from Mr Rafiq’s phone.

(d)Security for costs cannot be financially met by him as he is presently on a sickness benefit and the proceeding should continue without any protection to Auckland Transport for costs sustained.

[47]             For the foregoing grounds, Mr Rafiq submits that an order for security for costs should be dismissed as it amounts to a miscarriage of justice.

Conclusion in relation to security for costs application

[48]             I am of the view that Auckland Transport’s application for security for costs should be granted. This is for the following reasons:

(a)It is clear that Mr Rafiq is impecunious and there are grounds to believe that he will be unable to pay an adverse costs award. By his own admission, he is impecunious, and his only income is a jobseeker benefit of $378.99 per week. The first-stage threshold test under r 5.45 is therefore clearly met.

(b)For the reasons set out at [32] to [36], Mr Rafiq’s claim has little chance of success and his application for summary judgment is to be dismissed.

(c)It is an unfair burden on the Auckland ratepayers and Auckland Transport to defend a claim which has very limited prospects of success. The claim may be costly to defend given extra expenses incurred due to Mr Rafiq being self-represented without being protected for those costs should Auckland Transport be successful in obtaining a costs award against Mr Rafiq. It is in the public interest to protect ratepayers’ funds.

Amount of security

[49]             Auckland Transport are seeking an order for security for costs of $30,000 with a tranche of $12,000 to be paid immediately into Court in relation to Mr Rafiq’s summary judgment application.

[50]             In my view, it is appropriate to give some discount from the 2B costs of the summary judgment application which, after deducting the allowance for second counsel (which did not apply) amounts to $11,830.50. In my view, these costs should be discounted by approximately 25 per cent. Accordingly, an order for costs for $8,000 to be paid into Court immediately should be made. Auckland Transport can apply for further orders for security for costs if the proceeding progresses.

Stay of proceeding

[51]             Given the admitted impecuniosity of Mr Rafiq, his historic failures to pay Court-ordered costs, and the low prospect of his claim being successful, the proceedings should be stayed until the first tranche of costs of $8,000 is paid into Court.

Result

[52]As a result of the conclusions I have reached at [37], [48], [50], and [51]:

(a)Mr Rafiq’s application for summary judgment should be dismissed.

(b)Auckland Transport’s application for security for costs should be granted to the extent of the initial tranche of $8,000 to be paid into Court by Mr Rafiq immediately in respect of the summary judgment application.

(c)The proceedings should be stayed until the costs award is paid into Court.

Orders

[53]I make the following orders:

(a)Mr Rafiq’s application for summary judgment is dismissed;

(b)Auckland Transport’s application for security for costs is granted to the extent of the initial tranche of $8,000 to be paid into Court by Mr Rafiq immediately in respect of the summary judgment application;

(c)Auckland Transport is granted leave to apply to the Court for orders for further security for costs against Mr Rafiq if the proceedings progress to a trial;

(d)the proceedings are stayed until Mr Rafiq pays into Court the amount of the security for costs ordered at [53](b).

[54]             As Auckland Transport is the successful party, costs should follow the event. Accordingly, Auckland Transport is entitled to costs on a 2B basis in respect of the opposition to Mr Rafiq’s summary judgment application and its application for security for costs, together with disbursements.

…………………………….. Associate Judge Taylor