Rafiq v Attorney-General - [2021] NZSC 65

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 27/2021
[2021] NZSC 65

BETWEEN	RAZDAN RAFIQ Applicant
AND	ATTORNEY‑GENERAL Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person H M Carrad and A P Lawson for Respondent
Judgment:	16 June 2021

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is dismissed.

B The applicant must pay the respondent costs of $1,500.

____________________________________________________________________

REASONS

Introduction

On 27 May 2015, Wylie J in the High Court made an order under s 88B of the Judicature Act 1908 that Mr Rafiq was not to institute civil proceedings in any court without leave.[1] Although Mr Rafiq had initially opposed the application for a s 88B order, he later advised the Court that he wished to withdraw his statement of defence and that he consented to the order being made.
[1]Attorney‑General v Rafiq [2015] NZHC 1153. In a later judgment, Venning J found that the order against Mr Rafiq would, in accordance with cl 10(2) of sch 5 of the Senior Courts Act 2016, cease to restrict the bringing of proceedings without leave on 28 February 2022: Rafiq v Whata [2019] NZHC 1193 at [37].
Subsequently, more than two years later, Mr Rafiq sought an extension of time to file an appeal against the High Court judgment. In a judgment delivered on 3 August 2018, the Court of Appeal declined to grant an extension of time.[2] Mr Rafiq now applies for an extension of time to apply for leave to appeal in this Court against the decision of the Court of Appeal.

The proposed appeal

[2]Rafiq v Attorney‑General [2018] NZCA 292 (Winkelmann, Clifford and Williams JJ) [CA judgment].

Leave to appeal is sought on the basis that a miscarriage of justice will arise if the appeal is not heard. Amongst other matters, Mr Rafiq says that his proposed appeal to the Court of Appeal had merit and that the order under s 88B breaches his right to seek justice. He also emphasises that his application for citizenship was declined on the basis of that order.[3]

Our assessment

[3]In opposing the application for leave to appeal, the respondent submits that Mr Rafiq has not given any evidence about a citizenship decision.

The proposed appeal would have this Court essentially canvas the matters addressed in the Court of Appeal.
In declining to grant an extension of time, the Court of Appeal considered there was no reasonable explanation for the delay.[4] The Court also noted that the respondent accepted he had not been prejudiced by the delay. The Court then turned to the merits of the proposed appeal, noting the importance of the right at issue. However, the Court saw no merit in the proposed appeal given there was no dispute as to the Judge’s conclusion that the facts demonstrated that Mr Rafiq had “persistently and without any reasonable ground instituted [various] vexatious legal proceedings”.[5] Rather, in challenging…

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: [2021] NZSC 65
Decision Date: 16 June 2021

CaseChat Overview and Summary

In the case of Rafiq v Attorney-General, the applicant, Rafiq, sought an extension of time to apply for leave to appeal against the Court of Appeal's decision, which had dismissed his application for an extension of time to file an appeal against a High Court judgment. The applicant's application was dismissed by the Supreme Court of New Zealand. The central issue before the court was whether to grant an extension of time for the applicant to apply for leave to appeal against the Court of Appeal's decision.

The Supreme Court considered the principles applicable to the grant of extensions of time for appeals, as established in Almond v Read. The Court found that the applicant had not provided a reasonable explanation for the delay in making the application for an extension of time. The applicant had cited other proceedings and the impact of COVID-19 on court proceedings, but these did not adequately explain the delay. The Court also noted that the applicant's earlier application for leave to appeal in 2018 was not successful and had not been accepted for filing by the Court.

The Supreme Court concluded that the application for an extension of time was well out of time and that there was no error in the assessment made by the Court of Appeal. The Court dismissed the application for an extension of time and ordered the applicant to pay the respondent's costs of $1,500.

Orders