Rafiq v Auckland District Court
[2025] NZHC 107
•10 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-2133
[2025] NZHC 107
UNDER the High Court Rules 2016 BETWEEN
RAZDAN RAFIQ
Plaintiff
AND
AUCKLAND DISTRICT COURT
Defendant
Hearing: On the papers Appearances:
Plaintiff in person
No appearance for the Defendant
Judgment:
10 February 2025
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 10 February 2025 at 4 pm Pursuant to r 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
RAFIQ v AUCKLAND DISTRICT COURT [2025] NZHC 107 [10 February 2025]
Introduction
[1] On 9 August 2024, the plaintiff, Razdan Rafiq (Mr Rafiq), filed a claim for summary judgment against the defendant, Auckland District Court (ADC).
[2] The application for summary judgment was called in the summary judgment list on 3 December 2024. Mr Rafiq appeared. The application had not been served on ADC. I made an order striking out the proceeding as an abuse of process. I later recorded the decision in a brief minute dated 3 December 2024.1 Mr Rafiq now seeks leave to appeal that decision.
Background
[3] Mr Rafiq is a vexatious litigant. On 27 May 2015, the High Court made an order under s 88B of the Judicature Act 1908 (the s 88B order):2
No civil proceeding shall, without the leave of this Court, or a Judge of the Court, be instituted by Mr Rafiq in any court. Any civil proceeding instituted by Mr Rafiq in any court before the making of this order, shall not be continued by him without such leave.
[4] Mr Rafiq consented to the order. He accepted the allegations contained in the Attorney-General’s pleading seeking the order.3
[5] Mr Rafiq unsuccessfully applied for leave out of time to appeal the s 88B order, despite having consented to it. In rejecting the application for leave, the Court of Appeal noted the nature of the multiple proceedings that had been brought by Mr Rafiq, as pleaded by the Attorney-General in the application for the s 88B order:4
(a)the same arguments being frequently repeated and constantly rejected;
(b)an entrenched pattern of behaviour by Mr Rafiq indicating an unwillingness to accept adverse decisions or that appeal rights had been exhausted;
1 Rafiq v Auckland District Court HC Auckland CIV-2024-404-2133, 3 December 2024 (Minute of Associate Judge Brittain).
2 Attorney-General v Rafiq [2015] NZHC 1153 at [10].
3 At [5] and [8].
4 Rafiq v Attorney-General [2018] NZCA 292 at [3].
(c)the proceedings initiated against an ever-widening circle of defendants;
(d)issuing new proceedings in order to litigate matters that could have been raised in earlier proceedings, in order to avoid the effect of stays of the earlier proceedings;
(e)an intention to file vexatious proceedings in an attempt to clog the workings of the court and harass the defendants to the proceedings;
(f)baseless and scandalous allegations that have no prospect of success, including allegations against judicial officers;
(g)numerous claims being disposed of by being struck out or stayed; and
(h)Mr Rafiq not pursuing claims and allowing them to lie dormant.
[6] Mr Rafiq subsequently sought leave to appeal the Court of Appeal decision out of time. On 16 June 2021, the Supreme Court declined the application noting the application was well out of time, the Court of Appeal had applied settled principles and Mr Rafiq had not pointed to any error that gave rise to the appearance of a miscarriage of justice.5
[7] Mr Rafiq then set about making numerous applications to the High Court for leave to commence a proceeding. For example, during the first five months of 2019,
Mr Rafiq filed 14 applications for leave. All were dismissed.6
[8] Mr Rafiq also endeavoured to file proceedings in the District Court while the s 88B order was in force, including an appeal of a decision of the Disputes Tribunal which rejected a claim by Mr Rafiq against Super City Towing Ltd. On 3 September 2018, the District Court refused to accept Mr Rafiq’s appeal for filing.
[9] The s 88B order expired on 28 February 2022.7 Since then, Mr Rafiq has resumed his pattern of filing vexatious proceedings.8
5 Rafiq v Attorney-General [2021] NZSC 65 at [6]–[7].
6 Rafiq v Whata [2019] NZHC 1193 at [2].
7 At [37].
8 For example, see Rafiq v Latitude Financial Services Ltd [2023] NZHC 1690; Rafiq v Baycorp (NZ) Ltd HC Auckland CIV-2024-404-1143, 16 July 2024 (Minute of Associate Judge Brittain); Rafiq v Baycorp (NZ) Ltd CIV-2024-404-1613, 3 September 2024 (Minute of Associate Judge Brittain).
Legal principles
[10] Pursuant to s 56(3) of the Senior Courts Act 2016, Mr Rafiq is required to obtain the leave of this Court to pursue an appeal against my decision.
[11] The rationale behind the requirement for leave is simple: it serves as a filtering mechanism, ensuring that neither unmeritorious appeals of interlocutory orders, nor appeals against insignificant interlocutory orders, are allowed to proceed so as to delay unnecessarily the proceedings in which the orders were made.9
[12] The approach to an application for leave, and the principles governing its grant or refusal, are well-established:10
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[13] The threshold for leave may be lower in respect of a judgment that in a practical sense finally determines a proceeding.11
9 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
10 Tomar v Tomar [2021] NZCA 419 at [6].
11 See Simons v ANZ Bank New Zealand Ltd [2022] NZHC 2842 at [7]; Singh v Body Corporate 207650 [2023] NZHC 1269 at [13]; and D v RMC [2023] NZHC 1931 at [16].
Discussion
[14] The decision of the District Court declining to accept Mr Rafiq’s appeal was plainly made when the s 88B order was in force. Mr Rafiq had not obtained the Court’s permission to file the appeal in the District Court.
[15] It is not arguable that my finding that this proceeding is an abuse of process was wrong in law or fact. The interests of justice are served by declining Mr Rafiq leave to appeal my decision.
Orders
[16] The plaintiff’s application for leave to appeal my decision striking out this proceeding is dismissed.
[17]There is no order as to costs.
Associate Judge Brittain
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