Rafiq v Attorney-General

IN THE SUPREME COURT OF NEW ZEALAND

SC 122/2017
[2017] NZSC 182

BETWEEN	RAZDAN RAFIQ Applicant
AND	ATTORNEY-GENERAL First Respondent
AND	SECRETARY FOR THE DEPARTMENT OF INTERNAL AFFAIRS Second Respondent
AND	INDEPENDENT POLICE CONDUCT AUTHORITY Third Respondent
AND	CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Fourth Respondent
AND	COMMISSIONER OF POLICE Fifth Respondent
AND	AUCKLAND COUNCIL Sixth Respondent

Court:	William Young, Glazebrook and OʼRegan JJ
Counsel:	Applicant in Person
Judgment:	4 December 2017

JUDGMENT OF THE COURT

The application is dismissed for want of jurisdiction.

____________________________________________________________________

REASONS

Background

On 27 May 2015 Wylie J made an order under s 88B of the Judicature Act 1908 that Mr Rafiq cannot institute any civil proceeding in any court without the leave of the High Court.[1] In 2017 Mr Rafiq applied for leave to commence a civil proceeding. On 4 August 2017 Courtney J refused leave.[2] Pursuant to s 88B(3) no appeal is permitted from an order granting or refusing leave.
[1]Rafiq v Attorney-General [2015] NZHC 1153.
[2]Rafiq v Attorney-General [2017] NZHC 1852.
Mr Rafiq sought to file a notice of appeal in the Court of Appeal against the refusal of leave, as well as an application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005. On 13 October 2017 the Deputy Registrar informed Mr Rafiq that his application could not be accepted because there was no right of appeal and cl 10(2) of sch 5 of the Senior Courts Act 2016[3] applied to the order made under s 88B. We note what was s 88B is for the most part now found (with some additions) in s 169 of the Senior Courts Act. Section 169(6) of that Act imports s 88B(3) and provides that a judge’s determination of an application for leave is final.
[3]Which came into force 1 March 2017.
Mr Rafiq applied for review of the Deputy Registrar’s decision. Brown J held that under the provisions of the Senior Courts Act, s 169(6) applied to the application. In any event, the effect under s 88B(3) of the Judicature Act was the same. The application for review was therefore declined.[4]

Application for leave to appeal

[4]Rafiq v Attorney-General [2017] NZCA 495.

Mr Rafiq seeks leave to appeal against Brown J’s decision. He takes issue with the substance of Brown J’s decision and also claims that Brown J erred in applying the Senior Courts Act rather than the Judicature Act.

Jurisdiction

There was no right of appeal from Courtney J’s decision. This means the Court of Appeal and this Court have no jurisdiction. This effect is the same under the Senior Courts Act and the Judicature Act.

Result

The application for leave to appeal is dismissed for want of jurisdiction.

CaseChat Overview and Summary

In the case of Rafiq v Attorney-General, Razdan Rafiq sought to appeal the decision of the High Court which had refused him leave to commence a civil proceeding. The Supreme Court of New Zealand was required to determine whether it had the jurisdiction to hear an appeal against the High Court's decision. The High Court had previously made an order under section 88B of the Judicature Act 1908 that Mr Rafiq could not institute any civil proceeding in any court without the leave of the High Court. In 2017, Mr Rafiq applied for leave to commence a civil proceeding, which was refused by Courtney J. Mr Rafiq sought to appeal this decision but was informed that no appeal was permitted due to the provisions of section 88B(3) of the Judicature Act.

The primary legal issue in this case was whether the Supreme Court had jurisdiction to hear an appeal against the High Court's decision. The court had to consider the provisions of both the Senior Courts Act 2016 and the Judicature Act 1908, which govern the appeal process in New Zealand. Section 169(6) of the Senior Courts Act, which was applicable to this case, provided that a judge's determination of an application for leave was final and could not be appealed. Similarly, section 88B(3) of the Judicature Act also provided that no appeal was permitted from an order granting or refusing leave.

The Supreme Court held that there was no right of appeal from Courtney J's decision, and as such, the Court of Appeal and the Supreme Court had no jurisdiction to hear an appeal. The effect of the provisions of both the Senior Courts Act and the Judicature Act was the same in this regard. Therefore, the application for leave to appeal was dismissed for want of jurisdiction.

The final orders of the Supreme Court of New Zealand were that the application for leave to appeal was dismissed for want of jurisdiction, and no appeal could be heard against the High Court's decision to refuse leave to commence a civil proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established