RAZDAN RAFIQ AND AUCKLAND TRANSPORT

[2024] NZHC 3031

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2612

[2024] NZHC 3031

BETWEEN

RAZDAN RAFIQ

Plaintiff

AND

AUCKLAND TRANSPORT

Defendant

Hearing:

On the papers

Appearances:

Plaintiff is self-represented

Padraig McNamara/Jade Magrath for the Defendant

Judgment:

18 October 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for leave to appeal to the Court of Appeal ]

This judgment was delivered by me on 18 October 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 Defendant

Copy for:
Mr Razdan Rafiq

RAFIQ v AUCKLAND TRANSPORT [2024] NZHC 3031 [18 October 2024]

[1]                  On 23 August 2024 the Court delivered a judgment in which the Court dismissed the plaintiff‘s application for summary judgment and granted the defendant’s application for security for costs (the Judgment).1

[2]                  By notice dated 3 September 2024 the plaintiff filed an application for leave to appeal to the Court of Appeal in respect of the Judgment.

[3]                  The defendant filed a notice of opposition dated 18 September 2024 opposing the plaintiff’s application for leave to appeal.

[4]                  I am of the view that there are insufficient grounds set out in the plaintiff’s notice of application for leave to appeal to justify setting the matter down for a hearing, and accordingly it is dealt with on the papers.

The plaintiff’s grounds for the application for leave to appeal

[5]                  The plaintiff advances, in summary, the following grounds for leave to appeal, being that the Court erred:

(a)in finding that there is no merit in the plaintiff’s application for summary judgment as the defendant had no arguable or good grounds for a defence as no statement of defence had been filed;

(b)in not finding that the defendant had no lawful basis to issue fines to the plaintiff‘s vehicle or later engage Baycorp to collect the fines;

(c)in not finding that the infringement fines, after the expiry of 28 days after the notice issued under the Land Transport Act 1998, cannot be referred to Baycorp to be collected as a civil debt;

1      Rafiq v Auckland Transport [2024] NZHC 2236.

(d)in not finding that the defendant had no lawful or absolute immunity to do whatever it felt like with those fines, taking account of the plaintiff’s circumstances;

(e)in not finding that the defendant has no grounds to apply for security for costs on the summary judgment application;

(f)in granting security for costs that was grossly excessive;

(g)in finding that costs cannot be awarded since the defendant applied for security for costs.

Defendant’s opposition

[6]                  The grounds on which the defendant opposes the application for leave to appeal are:

(a)there is a high threshold for leave to appeal which has not been met;

(b)the court did not err in its judgment and the application fails to identify any arguable errors of law or of fact;

(c)the proposes appeal involves no issue of general or public importance, while the interlocutory judgment applies long-established legal principles regarding the applications for summary judgment and security for costs;

(d)the additional costs and delay of an appeal will cause prejudice to the defendant and is unreasonable in the circumstances, particularly given the appeal lacks any merit and the plaintiff will, by its own admission, be unable to pay the defendant’s costs if the appeal is unsuccessful; and

(e)the interests of justice will not be served by granting the plaintiff leave to appeal.

Legal Principles

[7]                  No appeal2 lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court or by the Court of Appeal following the High Court’s refusal of leave.3

[8]                  The relevant principles are set out in the decision of the Court of Appeal in Greendrake v District Court4 where the Court of Appeal identified the following considerations:

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[9]                  The Court of Appeal in that decision also approved the observations of Fitzgerald J in Finemore Upholstery Ltd v Vaughan5 to the effect that the requirement for leave was a filtering mechanism to ensure that unmeritorious appeals of no great significance did not necessarily delay the proceedings in which the orders had been made.

Result

[10]              I am of the view that the notice of application for leave to appeal does not identify any errors of law or of fact by the Court in the Judgment. The grounds are simply a repeat of the original application for summary judgment and opposition to security for costs which do not identify any error by the Court in the principles applied

2      Except for those appeals provided for under s 56(4) of the Senior Courts Act (the Act).

3      Section 56 of the Act.

4      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

5      Finemore Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

in determining the summary judgment or the order for security for costs in favour of the defendant.

[11]              The proposed appeal does not involve any issues of general or public importance.

[12]              The appeal on its face lacks any merit, will cause additional costs and delay which will prejudice the defendant and the plaintiff has, on his own admission, acknowledged he will be unable to pay the defendant’s costs if the appeal is unsuccessful.

[13]              I am of the view that overall in the interests of justice the application for leave to appeal should be declined.

Orders

[14]I make the following orders:

(a)the plaintiff’s application for leave to appeal is dismissed;

(b)the defendant is entitled to costs on a 2B basis in respect of the application, together with disbursements.

…………………………….. Associate Judge Taylor