Rafiq v Attorney-General

[2014] NZHC 2294

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002477 [2014] NZHC 2294

IN THE MATTER

of s 27 of the New Zealand Bill of Rights

Act 1990

AND IN THE MATTER

of declaratory relief

BETWEEN

RAZDAN RAFIQ Plaintiff

AND

THE ATTORNEY GENERAL OF NEW ZEALAND

Defendant

Hearing:	(On the papers)
Judgment:	22 September 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 22 September 2014 at 11.45 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Copy to:             Plaintiff

RAFIQ v THE ATTORNEY GENERAL OF NEW ZEALAND [2014] NZHC 2294 [22 September 2014]

[1]      This proceeding was referred to in the decision of this Court in [2014] NZHC

2291.

[2]      As the Court said in that decision on a review of the Registrar’s decision:1

These proceedings are based on the Registrar’s referral of the first set of proposed defamation proceedings against Meredith Connell to a Judge for review.

Mr Rafiq pleads that on 8 March [sic]2  2014 the Registrar referred proceedings to a Judge for directions for acceptance even though the application substantially complied with High Court Rules.   He seeks a declaration of breach of s 27 of the New Zealand Bill of Rights Act 1990 and exemplary damages in the sum of $1 million.

For the reasons given above, the Registrar was quite entitled to seek the direction of a Judge of this Court.  Mr Rafiq’s right is to seek review of the Registrar’s decision, which he has done.  The conclusion I have drawn as to the nature of the proceedings confirms the Registrar’s decision was correct.

It follows that these proceedings are also an abuse of process.

[3]      For those reasons and the further following reasons identified in the review decision it is proper to strike out these proceeding in the inherent jurisdiction of the Court:

[11]      … [w]hile the documents may comply with the basic requirements of the High Court Rules in relation to form the Court retains an inherent jurisdiction pursuant to which it has a duty to strike out pleadings that are an abuse of process.

[12]      As  Lord  Diplock  said  in  Hunter  v  Chief  Constable  of  the  West

Midlands Police [1982] AC 529:3

My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; … It would, in my view, be most unwise if this House were to use this occasion to say anything that  might  be  taken  as  limiting  to  fixed  categories  the  kinds  of

1       Re Rafiq [2014] NZHC 2291, at [22]–[25].

2      The reference to 8 March 2014 is clearly in error.  Mr Rafiq did not seek to issue any defamation proceedings against Meredith Connell in March 2014.  The first proceedings issued against that firm were in April 2014.

3       Hunter v Chief Constable of the West Midlands Police [1982] AC 529, [1981] 3 All ER 727 at

729.

circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

[13]      Lord   Diplock’s   comments   were   cited   with   approval   by   the Richardson J in the Court of Appeal in Reid v New Zealand Trotting Conference as follows:4

The abuse of process principle.

Misuse of the judicial process tends to produce unfairness and to undermine confidence in the administration of justice. In a number of cases in recent years this Court has had occasion to consider the inherent jurisdiction of the High Court, and on appeal this Court, to take such steps as are considered necessary in a particular case to protect the processes of the Court from abuse. (See particularly Moevao v Department of Labour [1980] 1 NZLR 464 and Taylor v Attorney-General [1975] 2 NZLR 675.) In exercising that jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. The public interest in the due administration of justice necessarily extends to ensuring that the Courts' processes are fairly used and that they do not lend themselves to  oppression and  injustice. The justification for  the  extreme step  of staying a prosecution or striking out a statement of claim is that the Court is obliged to do so in order to prevent the abuse of its processes.

[14]      The approach was confirmed by the Supreme Court in Chamberlains v Lai.5

[15]      My review of the proceedings referred by the Registrar confirms that in substance and context they are properly categorised as an abuse of the process of the Court.  Although on their face the proceedings comply with the literal application of procedural rules, it would be manifestly unfair to the proposed defendants and would otherwise bring the administration of justice into disrepute among right thinking people to allow the proceedings to proceed, even to the stage of service, so that the Court has a duty to act and to peremptorily strike them out in accordance with the above principles.  I explain why.

…

[30]     Quite apart from the abuse apparent on the face of the current proceedings, Mr Rafiq has himself effectively confirmed his intention to file vexatious proceedings in an attempt to clog the workings of the Court and to harass the defendants to his proceedings.  Previous judgments of the Court confirm that to be the position.   Mr Rafiq’s comments to that effect have been referred to in other proceedings issued by him.  In the decision of Rafiq v Secretary for Department of Internal Affairs in New Zealand  Asher J referred to the following comments of Mr Rafiq:6

Further the applicant shall file multiple litigations against the respondent. The litigations shall also encompass [the Secretary for the Department of Internal Affairs in New Zealand]. The litigations shall also encompass the Internal Affairs Minister and the Prime Minister and appeals shall follow right to the Supreme Court.  The process shall be repeated multiple times

4       Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at 9.

5       Chamberlains v Lai [2006] NZSC 70 at [63].

6 At [26].

until  and  unless  justice  is  secured.     Those  who  shall  resist  any proceedings and/or stand in the path of the applicant shall face series of litigations.

And later:

If you resist these proceedings then I shall feed your department with multiple litigation including the Minister.

[31]      In Rafiq v Meredith Connell Associate Judge Bell recorded an email Mr Rafiq had sent to Meredith Connell on 25 November 2013 in which he said:7

At the outset of next year, I am going to flood judicial review proceedings in  all  the  High Court  of  New Zealand against the  Court  of Appeal, Supreme Court, Judicial Conduct Commissioner, Attorney-General, Justice Minister, Minister for Courts, each and every Judge in the High Court, Court of Appeal and Supreme Court …

[32]      The Judge went on to refer to an email of 20 May 2014 in which Mr Rafiq responded to statements by others that he was a “serial litigant” and a “painful plaintiff”. That email includes the following:

It is not my fault that I cannot control filing litigations.  It has become my disease.  The Ministry of Justice should get the blame. … In this criminal proceeding process I was given a disease of litigation.  Since then I could not stop myself from filing litigations and if someone Googles my name will see the evidence.

Without litigations I cannot survive.  Since Ministry of Justice gave me this litigation disease everyone will face litigation who shall stand in my life.

With litigations I really want to secure my life as well. Let’s see?

In light of the above people should never complain that I am “serial litigant” or a “painful litigant”.

[33]     For completeness I also note the following.  There are no financial consequences to Mr Rafiq as a consequence of the above.  He seeks a fee waiver in each case on the basis that he is in receipt of a sickness benefit.8

[34]     The Court is well aware of Mr Rafiq’s right to justice under s 27, including in particular to bring proceedings against the Crown.  The right to justice provided in s 27 is an important right, established through the course of history and enshrined as a fundamental part of our justice system.  Any suggestion that it permits Mr Rafiq to act in the way he seeks to act is to trivialise the importance of the right.

[35]     Further, the resources of this Court are limited.  There are genuine litigants whose cases are delayed because of the time and resources applied to deal with these entirely unmeritorious proceedings of Mr Rafiq.   Their rights of access to justice are affected if the Court is required to deal with defended strike out and summary judgment applications on Mr Rafiq’s files.

7       Rafiq v Meredith Connell [2014] NZHC 1597.

8       High Court Fees Regulations 2013: reg 19(a).

Result

[4]      The proceedings are struck out.

Venning J