Attorney-General v Rafiq - [2015] NZHC 579

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2711 [2015] NZHC 579

BETWEEN
ATTORNEY-GENERAL

Applicant

AND

RAZDAN RAFIQ Respondent

Hearing: 26 March 2015

Appearances:

K Muller and T Westaway for Applicant
Respondent in person

Judgment:

26 March 2015

ORAL JUDGMENT OF WYLIE J

Solicitors: Crown Law, Wellington
Copy to: R Rafiq: razdanrafiq@gmail.com

ATTORNEY-GENERAL v RAZDAN RAFIQ [2015] NZHC 579 [26 March 2015]

Introduction

[1] On 17 October 2014 the applicant – the Attorney-General – filed a statement of claim, seeking that Mr Rafiq should be declared a vexatious litigant under s 88B of the Judicature Act 1908. The statement of claim was served on Mr Rafiq on 12
November 2014, together with initial disclosure as required by r 8.4 of the High

Court Rules.

[2] Mr Rafiq has not as yet filed a statement of defence. He resists doing so until three interlocutory applications he has made are determined.

[3] The three interlocutory applications are as follows:

(a) An amended application dated 23 January 2015 seeking an order that all High Court Judges based in Auckland should recuse themselves from all stages of the proceeding.

(b)An application dated 17 November 2014 seeking proper service of the proceedings and the initial disclosure documents.

(c) An amended application dated 17 November 2014 seeking security for costs.

[4] Applications (b) and (c) are opposed by the Attorney-General. The Attorney- General takes no stance in regard to the first application.

[5] I deal with each application in turn.

Application for recusal

[6] Mr Rafiq asserts that there are reasons to believe that the Auckland High Court Judges collectively have acted unfairly in determining issues that form the basis of these proceedings. Those assertions are made in the application itself. He argues that most of the various judgments which have been given against him originate from the High Court, and that there will be a conflict of interest should any

Judge of the High Court of Auckland preside over any aspect of the present proceedings. He also asserted in the application that the Auckland High Court Judges have “been advancing [a] widespread abusive and humiliating campaign against [him] and [that] he does not wish to get subject to further abuse”.

[7] In the course of the hearing today Mr Rafiq sought to widen the application. He sought an order that all High Court Judges whether or not sitting in Auckland should recuse themselves in relation to these proceedings.

[8] The law in relation to judicial recusal is clearly articulated in a number of decisions.1 Judges have an obligation to sit on any case allocated to them unless grounds for disqualification exist. A Judge is disqualified if a fair minded lay observer might reasonably apprehend that there is a real and not remote possibility that the Judge may not bring an impartial mind to the resolution of the question the Judge is required to decide. It is necessary first to identify what it is said might lead the Judge to decide a case other than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 579
Decision Date: 26 March 2015

CaseChat Overview and Summary

The case of Attorney-General v Rafiq was heard in the High Court of New Zealand in Auckland. The Attorney-General filed a statement of claim seeking that Mr Rafiq be declared a vexatious litigant under the Judicature Act 1908. Mr Rafiq has not yet filed a statement of defence, but has made three interlocutory applications, including an application for the recusal of all Auckland High Court Judges, an application for proper service of documents, and an application for security for costs. The court dismissed all three applications. The court found that there was no basis for the recusal of any Judge, as the fact that some Judges in the Auckland common room had made findings adverse to Mr Rafiq could not justify an application that all Auckland High Court Judges or all High Court Judges in New Zealand recuse themselves from hearing the proceeding. The court also found that the initial disclosure bundle was served on Mr Rafiq in accordance with the High Court Rules and that there was no requirement for the initial disclosure bundle to be served in a bound format or in a folder. Finally, the court found that the Crown Proceedings Act 1950 provided that the Crown shall not be required to deposit or give security for the costs of any other party. The court directed that Mr Rafiq is to file and serve a statement of defence on or before 5pm on Friday 24 April 2015, and that if he does not do so, then the matter may proceed by way of formal proof. The Attorney-General is entitled to his costs on a 2B basis, in respect of both of the applications which were opposed.

Orders