Rafiq v Attorney-General - [2017] NZHC 1852

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-001760 [2017] NZHC 1852

UNDER the Judicature Act 1908

BETWEEN

RAZDAN RAFIQ Plaintiff

AND

ATTORNEY-GENERAL First Defendant

SECRETARY FOR DEPARTMENT OF INTERNAL AFFAIRS

Second Defendant

INDEPENDENT POLICE CONDUCT AUTHORITY

Third Defendant

CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Fourth Defendant

COMMISSIONER OF POLICE Fifth Defendant

AUCKLAND COUNCIL Sixth Defendant

Hearing: On the papers

Judgment:

4 August 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 4 August 2017 at 3.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

RAFIQ v ATTORNEY-GENERAL & ORS [2017] NZHC 1852 [4 August 2017]

Introduction

[1] The Registrar has referred to me applications by Razdan Rafiq for leave to commence proceedings and to review the Registrar’s decision rejecting his documents.

Application for review

[2] The proceedings that Mr Rafiq wishes to bring name as defendants the Attorney-General, the Secretary for the Department of Internal Affairs, the Independent Police Conduct Authority, the Chief Executive of the Ministry of Social Development, the Commissioner of Police and the Auckland Council. The Registrar rejected the documents because they did not comply with r 5.1(1)(a) of the High Court Rules which requires proceedings to be filed in the place of residence or principal place of business of the first-named defendant. Because the first defendant is the Attorney-General, that Registry would be Wellington. The Registrar was therefore correct to reject the documents on that ground. The application for review is dismissed.

Application for leave to commence proceedings

[3] Since May 2015 Mr Rafiq has been a declared vexatious litigant under s 88B of the Judicature Act 1908.1 He may only commence civil proceedings with the leave of the Court. That leave is not to be granted “unless the Court or Judge is satisfied the proceeding is not an abuse of process of the Court and that there is a prima facie ground for the proceeding”.

[4] In Re Collier Randerson J considered what would be required to meet this threshold. He accepted as applicable the definition of “prima facie case” contained in Spiller Butterworths New Zealand Law Dictionary:2

A serious, as opposed to a speculative case.

A litigating party is said to have a prima facie case where the evidence in his or her favour is sufficiently strong for his or her opponent to be called on to answer it.

1 Attorney-General v Rafiq [2015] NZHC 1153.
2 Spiller Butterworths New Zealand Law Dictionary (6 ed 2005).

[5] Randerson J went on to consider the threshold under s 88B(2) against that definition:3

This definition adequately captures the flavour of the expression “prima facie ground” in s 88B(2), focusing on the strength of the evidence which must reach a sufficiently high threshold to require the potential defendant to respond to it. But the threshold to be established before leave may be given under s 88B(2) is not to be confused with the level of scrutiny required in respect of the…

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: [2017] NZHC 1852
Decision Date: 4 August 2017

CaseChat Overview and Summary

The High Court of New Zealand considered an application by Razdan Rafiq for leave to commence proceedings and to review the Registrar's decision rejecting his documents. Rafiq sought to name several defendants, including the Attorney-General, the Secretary for the Department of Internal Affairs, the Independent Police Conduct Authority, the Chief Executive of the Ministry of Social Development, the Commissioner of Police, and the Auckland Council. The Registrar had rejected the documents because they did not comply with Rule 5.1(1)(a) of the High Court Rules, which requires proceedings to be filed in the place of residence or principal place of business of the first-named defendant. Given that the first defendant is the Attorney-General, the Registry should have been Wellington. The Registrar was correct to reject the documents on that ground, and the application for review was dismissed.

The court had to decide whether Rafiq, who has been a declared vexatious litigant, was entitled to leave to commence proceedings against the various defendants. Leave under section 88B(2) of the Judicature Act 1908 is not to be granted unless the Court is satisfied that the proceeding is not an abuse of the process of the Court and that there is a prima facie ground for the proceeding. The court considered the strength of the evidence required to meet the threshold and noted that the assertions made by the vexatious litigant seeking leave were not to be accepted uncritically. The proposed pleading contained several causes of action against each defendant, but many of them were inadequately particularised, incomprehensible, or clearly incapable of success. The court found that none of the proposed claims reached the requisite threshold for leave under section 88B(2). The application for leave to commence proceedings was therefore refused.

The court concluded that the proceedings that Rafiq wished to bring did not meet the threshold required for leave under section 88B(2). The application was therefore refused. The court dismissed the application for review and refused the application for leave to commence proceedings.

Orders