Rafiq v Auckland District Court
[2013] NZHC 2640
•10 October 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-003470 [2013] NZHC 2640
BETWEEN RAZDAN RAFIQ Plaintiff
ANDAUCKLAND DISTRICT COURT Defendant
Hearing: 9 October 2013
Appearances: Plaintiff in Person
S M Kinsler for Defendant
Judgment: 10 October 2013
JUDGMENT OF VENNING J
This judgment was delivered by me on 10 October 2013 at 12.15 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law, Wellington
Copy to: Plaintiff
RAFIQ v AUCKLAND DISTRICT COURT [2013] NZHC 2640 [10 October 2013]
Introduction
[1] Mr Rafiq, acting for himself, has commenced proceedings against the Auckland District Court. The proceedings are styled as an application for judicial review.
[2] The following applications are before the Court:
(a) Mr Rafiq’s application for summary judgment;
(b)Mr Rafiq’s application to review the Registrar’s decision declining or failing to allocate the application for summary judgment a hearing; and
(c) the defendant’s application to strike out.
[3] I heard from Mr Rafiq and Mr Kinsler in relation to all three applications. I consider the most expeditious way of dealing with the matter is to first determine the application to strike out the proceedings. Clearly if they are struck out then they could not support the application for summary judgment and Mr Rafiq’s complaint that the Registrar failed to allocate a hearing for the summary judgment must, as a matter of logic, fall away.
The statement of claim
[4] The statement of claim is a confused document. It pleads passages from various statutory provisions and includes submissions.
[5] As best as I am able to glean from the statement of claim the plaintiff’s
complaints fall into the following categories:
(a) the conduct of District Court Judge David J Harvey while he presided over the prosecution of Mr Rafiq for charges under the Harassment Act 1997 and Postal Services Act 1998, (including the sentencing);
(b) a District Court Registrar prevented Mr Rafiq from coming forward
to the Registrar’s bench during a status hearing on 27 June 2013; and
(c) the tone of a minute issued by District Court Judge Sharp on 4 July
2013.
[6] In the course of his submissions, Mr Rafiq also complained about the length of time he has been subjected to bail conditions while facing the original charges and now the retrial on the Harassment Act charges.
[7] Mr Rafiq “deciphers” that the actions of the Judges and the Registrar are contrary to the provisions of the New Zealand Bill of Rights Act 1990 (NZBORA), the Summary Proceedings Act 1957, the Criminal Procedure Act 2011, the Evidence Act 2006, the District Court Rules 2009 and other statutory provisions. Mr Rafiq claims by way of relief:
Adeclaration that the defendant’s ... actions ... are unlawful, and contrary to the NZBORA and other applicable statutory provisions mentioned in this application.
An order for damages (both general and aggravated) and/or compensation for breach of his rights in the sum of $50,000
Factual background
[8] Following a defended hearing on 3 September 2012 in the District Court at Auckland Judge Harvey convicted Mr Rafiq of two charges under the Postal Services Act 1998 and one under the Harassment Act 1997. On the Harassment Act charge the Judge sentenced Mr Rafiq to 50 hours community work and placed him on supervision for 12 months with special conditions including counselling as
directed by the probation officer.1
[9] On the Postal Services Act offending the Judge fined Mr Rafiq $750 on each charge with Court Costs of $132.89.
1 Police v Rafiq (aka) Khan DC Auckland CRI-2011-004-14731, 3 September 2012.
[10] Mr Rafiq appealed all three convictions. His appeal against conviction under the Harassment Act was allowed on the basis that he was not properly advised of his right of election. The appeals against conviction under the Postal Services Act and sentence were dismissed.2 Mr Rafiq is awaiting a retrial before a jury on the Harassment Act charge.
[11] In addition to the criminal proceedings Mr Rafiq issued civil proceedings against Google New Zealand Limited and APNZ Limited, again in the District Court at Auckland. Mr Rafiq alleged defamation. Those proceedings have now been determined against Mr Rafiq by summary judgment being entered for the second
defendant at least.3 It was in the course of those proceedings that Judge Sharp issued
the minute that Mr Rafiq complains of.
Principles
[12] The principles to apply on strike out application founded on the basis the claim discloses no reasonable cause of action are well established. It proceeds on the assumption that the facts pleaded in the statement of claim are true. The cause of action must be so clearly untenable that it cannot possibly succeed. The jurisdiction is to be exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material before it. The fact applications to strike out raise difficult
questions of law and require extensive argument does not exclude the jurisdiction.4
In an appropriate case the Court may have regard to indisputable facts.5
[13] In the present case the factual issues underlying Mr Rafiq’s complaints are not in issue and can be accepted. The exchanges between him and Judge Harvey during the course of the criminal trial and the minute issued by Judge Sharp are matters of record. For present purposes I accept his allegation that he was prevented
from approaching the Registrar in the District Court during a status hearing.
2 Rafiq v Police [2012] NZHC 2884.
3 Rafiq v Google NZ Ltd and APN NZ Ltd DC Auckland CIV-2013-004-645, 9 August 2013.
4 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
5 Attorney-General v McVeagh [1995] 1 NZLR 558, 566.
[14] In the present case however, the application is based on the additional grounds the pleading is frivolous or vexatious and an abuse of the Court’s processes.6
Decision
[15] There is force in Mr Kinsler’s submission that to the extent the plaintiff’s judicial review claim seeks relief, including damages, for alleged breaches of the Mr Rafiq’s rights during the course of the criminal and civil proceedings in the District Court, it is to be regarded as a collateral attack on the final decisions adverse to Mr Rafiq in those jurisdictions.
[16] At least insofar as the convictions on the Postal Services Act charges are concerned the convictions and sentence are conclusive. An appeal from them has been heard and dismissed. In relation to the Harassment Act charge it would appear the complaints are moot. Mr Rafiq’s appeal against conviction (on other grounds) has been allowed. In relation to the civil proceeding for defamation, while Judge Sharp issued the minute that Mr Rafiq complains of in the course of the proceedings, Judge Cunningham delivered a decision on 9 August this year dismissing Mr Rafiq’s application for summary judgment and entering summary judgment for the second defendant.
[17] To commence these proceedings after the conclusion of the criminal proceedings and, in the case of the complaint about Judge Sharp’s minute, following the disposal of the substantive proceedings, at least against the second defendant, can properly be seen as a collateral attack on final decisions adverse to Mr Rafiq, reached by Courts of competent jurisdiction in previous proceedings in which Mr Rafiq had a full opportunity of contesting the matter. As such the proceedings are an
abuse of Court.7
[18] There are further jurisdictional difficulties with Mr Rafiq’s claim. While Mr
Rafiq seeks a declaration, it became apparent during his submissions that the purpose
6 High Court Rules, r 15.1.
7 Hunter v Chief Constable of West Midlands [1982] AC 529 (HL) at 541; and Colman v
Attorney-General [2013] NZSC 52, [2013] 2 NZLR 495 at [8].
of the claim is to pursue damages for breaches of the NZBORA, Baigent damages. However, as the Court of Appeal said in CBU Inc v Auckland City COGS Committee:8
... It is difficult to conceive of a situation where Bill of Rights damages would be granted in respect of natural justice breaches that can be remedied by a declaration and a standard administrative law remedy such as remitting the matter so that natural justice can be accorded.
[19] There is a further difficulty. To the extent Mr Rafiq’s complaints are that the Judges in the criminal trial and in issuing the minute in the civil proceedings breached ss 25 and 27 of the NZBORA, there is no basis for public law compensation: Attorney-General v Chapman.9 That is in addition to the procedural difficulty with a claim against the individual Judges given the proceedings cite the District Court as a defendant.
[20] Further, the pleading is, as noted, confused. It does not comply with the requirements of the High Court Rules to properly inform the defendant (and the Court) of the nature of the claim and to provide sufficient particulars to properly inform the Court and the defendant of the cause of action.10 For example, Mr Rafiq pleads generally:
[6] The plaintiff state that, at all times material to this action, the defendant knew or ought to have known that their unlawful, disparaging conduct, and unlawful interference would likely result in significant injury to the plaintiff’s feelings. The plaintiff is deeply aggravated by the negated adverse/defamed behaviour/general conduct of the defendant.
[7] Due to these improper adverse conduct and or departure of the defendant it can be concluded that the defendant is exhibiting some form of extreme malice towards the plaintiff.
[21] It is impossible to respond sensibly to such pleading. In its current form the pleading is likely to cause prejudice to the defendant. It is frivolous and vexatious.
[22] I do not overlook that during the course of his submissions Mr Rafiq complained of the delay in having the charge under the Harassment Act heard. He
8 CBU Inc v Auckland City COGS Committee [2009] 2 NZLR 56 at [66]–[67].
9 Attorney-General v Chapman [2012] 1 NZLR 462.
10 High Court Rules, r 5.26 and The Commissioner of Inland Revenue v Chesterfields Preschools
Ltd [2013] NZCA 53 at [90]–[91], [95].
referred to s 25(b) of the NZBORA. Such a claim is not raised in the current statement of claim. Nor could it be. The appropriate means for Mr Rafiq to raise any complaint regarding delay in the progress of that charge is the District Court in the first instance. In making that observation I am not to be taken as suggesting there is any merit in the complaint.
[23] Mr Rafiq’s complaint that he was not allowed to approach the Registrar’s bench during a status hearing is not susceptible to any relief. There is no suggestion that Mr Rafiq was not heard. It appears he wanted to make an inquiry directly from the Registrar while the Court was operating and is upset that unrepresented litigants have to wait for their cases to be called. He says:
[3.7] The defendant at all material times made access to the registrar extreme difficult when [I] appeared in the status hearing on the 27 June 2013 implying vehemently that [I am] not permitted to cross a certain line in the courtroom. The defendant proclaims that only lawyers are permitted to visit any registrar to check any details of case proceedings. Self-represented litigants are not allowed. The defendant reflected that this is one of the court policies. ... There is no designated locus for self-represented litigants and it takes ages before the registrar calls the names of these litigants just due to the fact that they are not represented by counsels. The defendant has poor system to accommodate self-represented litigant. The adverse approach of the defendant has lost confidence in the plaintiff in respect to justice service.
[24] Even accepting the factual matters contained in that pleading as correct, they do not disclose any justiciable breach of duty, statute or right that may reside in the plaintiff. There is no suggestion Mr Rafiq’s case was deliberately not heard or anything of that kind nor that he was denied an opportunity to respond to the charges. The complaint seems to be that he had to wait to be dealt with. It is not for the defendant to determine how proceedings before the Court are dealt with. It is common place and more efficient for the Court to call the cases of defendants represented by counsel before unrepresented litigants.
[25] While the above matters are sufficient to support the striking out of the claim for judicial review, I go on to consider the substantive merits of the complaints.
The criminal proceeding
[26] The full notes of evidence of the hearing before Judge Harvey are before the
Court. The extracts that Mr Rafiq complains of are as follows:
Mr Rafiq obviously thinks that he is on television in front of the news camera, Mr Iosefa, he doesn’t realise that I can in fact compel him to answer and can in fact cite him for contempt of Court.
[27] That followed an exchange between Mr Rafiq and Sergeant Iosefa, the Police prosecutor, towards the end of the hearing when Mr Iosefa was cross-examining Mr Rafiq. Mr Rafiq had just answered the prosecutor’s question with a question and when pressed to answer a question had said: “No comments”.
[28] While it may have been better for the Judge to direct the comment to Mr Rafiq directly rather than through the prosecutor the Judge’s observation about the news media is of no moment.
[29] Mr Rafiq complains the Judge breached his right to a fair trial by pressing him to answer. Mr Rafiq relies on s 67 of the Summary Proceedings Act 1957 and misquotes part of that section as: “no adverse comments should be made to the defendant if he or she refuses to give evidence”. Mr Rafiq’s reliance on that section (in its proper form) is misconceived. He has taken it out of context. Section 67 only applies where the defendant chooses not to give evidence. Mr Rafiq chose to give evidence. Section 60(4)(c) of the Evidence Act 2006 confirms that the privilege against self-incrimination does not apply when a defendant is giving evidence about the charge before the Court. For the same reason, Mr Rafiq’s reliance on s 25(a) NZBORA is also misconceived.
[30] The Judge was correct to record that he could compel Mr Rafiq to answer. If Mr Rafiq failed to do so, one consequence was that Mr Rafiq could be found in contempt. If Mr Rafiq had been directed to answer a question and had refused, although perhaps unlikely, the Judge could have held him in contempt under s 206(c) Summary Proceedings Act.
[31] The second passage Mr Rafiq complains of is when the Judge said:
Look Mr Khan, is it Mr Khan or Mr Rafiq, I’m not exactly –
That arose because the proceedings themselves were headed: “RAZDAN RAFIQ (AKA) KHAN”. The informations were in the name of Khan. The Judge commenced by referring to Mr Rafiq as Mr Khan. The Judge sought some clarification from Mr Rafiq as to whether his name should be amended and said he was going to amend the name to Rafiq. The Judge’s confusion is completely understandable. Mr Rafiq’s complaint about this is disingenuous.
[32] Next, there is a passage at p 78 of the notes of evidence where the Judge said:
I think we’ve got a pretty fair idea of what’s triggered it all, Mr Rafiq, it’s
just whether or not your response is a lawful one.
There can be no complaint or issue arising out of the above comment.
[33] Next, there are passages at p 69 of the notes where the Judge put to Mr Rafiq extracts from the abusive letters Mr Rafiq was alleged to have sent to the Government agencies:
Q. Mr Rafiq, do you have a sister? A. Yes.
Q. What would happen if I wrote to her in these terms. “You are my favourite slut out of all female bitches.” How would you feel if I wrote that to her?
A. Um, I’ll reply by saying that I cannot recall writing that.
Mr Rafiq says that in that passage the Judge made adverse comments regarding Mr Rafiq’s sister. That is misleading. It is patently clear the Judge was referring to Mr Rafiq’s own correspondence and putting it in context. The context was to determine whether the correspondence was offensive or threatening.
[34] There is then a further discussion at pp 62, 63 and 64 of the transcript where the Judge questioned Mr Rafiq about his dealing with the Inland Revenue Department:
Q. Mr Rafiq, have they threatened you? A. Who?
Q. The IRD. A. Oh sorry.
Q. People from IRD? A. Yeah, um –
Q. Have they threatened you?
A. I would say – I wouldn’t put it that way.
Q. Okay well no, a threat’s a threat. “If you don’t do this I’m going to hit you, kill you, do something terrible to you.”
A. Yes.
Q. Have they said that? Have they threatened to kill you, let’s get that one out of the way first.
A. (Laughs)
Q. No well come on, let’s do this by a process of elimination.
A. No.
Q. They haven’t threatened to kill you?
A. No.
Q. Have they threatened to physically hurt you? A. Well there’s two forms of threats here.
Q. No, no, just answer the question. Do you find this amusing? A. No, no.
Q. Because I don’t.
A. Okay sorry.
Q. These are serious allegations that you’re making and I’m trying to
track them down. Have they threatened to do you physical harm?
A. No.
Q. Right, in what way then have they threatened you? A. Several way.
Q. In what way, tell me?
A. Um, what they did was, they kind of like – they said, they said to my aunty, Ms Jubila Khan who I’m staying with at the moment, that if I get involved in her affairs, child support and whatever, then they would cut off – like stop her working for Tax Credits.
Q. Okay so that’s a comment that has been made to your aunt.
A. Um, yes.
Q. But not to you?
A. Well, um a few years ago –
Q. No, answer the question.
A. They did – well, I wouldn’t say directly, I wouldn’t say directly.
Q. Okay all right so you’re saying –
A. Indirectly.
Q. – that whatever threats there might’ve been, they were indirect?
A. Indirect.
Q. Now you’re not a tax agent are you?
A. Tax?
Q. A tax agent? A. No.
Q. Well if you were, you’d know what I meant, okay.
A. (Laughs)
Q. Do you find this amusing? A. No no, sorry.
Q. You’re not an accountant?
A. Um, I’ve done accounting courses.
Q. You’re not an accountant?
A. No.
Q. You’re not a member of the Chartered Accountants or anything like that?
A. No.
Q. And in fact, it may well be that the Inland Revenue Department preferred that you not be involved with your aunt’s affairs because of the difficulties and the contents of the letters that you had written.
A. Well we had personal differences against 2005 –
Q. Quite, I think that answers the question doesn’t it?
A. No, no, no, going back – see these allegations, they are from last year.
Q. Yep.
A. You agree? Q. Yep.
A. All right so –
Q. That’s all I’ve got in front of me, is charges that relate to 2004.
A. Yeah, yeah okay. But they haven’t mentioned anything about since
2005.
Q. Okay, tell me something thought; if they threaten you, does that
mean that you’re justified in threatening them back?
A. Um, well – um, I dunno. I’m too weak to answer the question.
Mr Rafiq says the questioning disclosed bias. He complains the Judge unreasonably interrogated him by engaging in the above series of questions with him.
[35] It was reasonable for the Judge to explore the series of propositions he put to Mr Rafiq. The exchange falls well short of the sort of behaviour identified by the Court of Appeal in Collier v Attorney-General as required for bias.11 As the Court said in that case:12
... A degree of friction between a party and a trial Judge will not by itself amount to a miscarriage of justice requiring a new trial. ... Bias, actual or apparent ... involves the favouring of one party over another. Impatience, frustration, even rudeness, though to be discouraged, do not translate into bias.
[36] Nothing that Mr Rafiq has referred to or identified in the material accompanying his application is, when read in context, objectionable. None of the
11 Collier v Attorney-General [2002] NZAR 257 (CA).
12 At [59].
passages relied on by Mr Rafiq suggest in any way that Mr Rafiq’s right to a fair trial
was affected by the Judge’s actions.
[37] Finally Mr Rafiq says Judge Harvey unreasonably accused him of mental illness. In sentencing, the Judge perhaps understandably, given the extent of the abusive and vitriolic nature of the correspondence issued by Mr Rafiq, was apparently considering whether to obtain a report from the forensic nurse at Court at least, but ultimately chose not to. Again, the Judge’s concern was understandable. By way of example only I cite two passages the Judge referred to:
“I want a list of identities of individual staff members named in the computer printouts in my record.” So far so good, but then the language deteriorates, “you fuck faced European bastard snake son of a whore slut. I want all the internal reports that you European fuck-bastards are holding,” and on it goes. “I hate European people like you,” he says, and then, in handwriting, “Go and fuck your Commissioner, R Russel, you bastard.”
And later:
“My white vagina angel, read this. You are my favourite slut out of all female European bitches of government departments. I pay tax to government so that you get wages to buy your panty, bra, Libra pads for your white arse period. To everyone reading this on the internet: Sarah Thomson of Privacy Commissioner is only my bitch. I really truly hate European people. Why, why, why, why? I wish God gives me the power to punish European people bastards.”
[38] Given the foul, abusive and threatening language the Judge had found Mr
Rafiq used, the Judge’s concern was completely understandable.
The status hearing
[39] I have already referred to the status hearing. Accepting for the present purpose that Mr Rafiq was prevented from approaching the Registrar’s bench during the course of a status hearing and had to wait to the end of the list for his case to be called, that cannot support any reasonably arguable cause of action against the District Court.
The civil proceedings
[40] Finally, Mr Rafiq complains about the minute issued by Judge Sharp. On 4
July, Judge Sharp issued the following minute:
The contents of the plaintiff’s memorandum of 10 June 2013 amount to a scurrilous attack on the integrity of the Judges of this Court which I view as contemptuous. The order sought is declined. The Court is presently considering instituting proceedings against the plaintiff for contempt.
[41] Mr Rafiq complains the minute was a “threat” and a denial of justice. The minute was issued in response to a memorandum from Mr Rafiq referred to the Judge. In that memorandum Mr Rafiq had stated inter alia:
[1] The plaintiff objects any European Judge from presiding this proceeding. The European Judge shall favour the defendant as she is a European and deny justice to the plaintiff as he is non-European. Accordingly, if any European Judge presides this proceeding that Judge will face complaints to the Judicial Conduct Commissioner for racism, biasness and misconduct. If the Judicial Conduct Commissioner refuses to investigate my complaints then it shall face a judicial review and appeal shall follow right to the Supreme Court and any costs awarded will be dismissed in this process. The Judges of the High Court, Court of Appeal and Supreme Court shall also facing complaints for racism and biasness. The Chief District Court Judge is facing complaints for promoting racism in the justice system. At this stage High Court Judge Brewer J and [Priestley] J are facing complaints to the Judicial Conduct Commissioner. Future complaints will be advanced against Judge [Russell] Collins and Judge David Harvey and Judge Gittos.
[42] Mr Rafiq then went on in the memorandum to refer to a copy of a letter he had apparently sent to the Minister for Courts regarding a Complaint about the Chief District Court Judge in the following terms:
I am writing to address my complaints against the Chief District Court Judge for promoting racism in the Auckland District Court.
Auckland District Court has a long history of racist Judges who adjudicate decisions based on black and white people policy. This court has extremely poor level of civil service whereby, non-European litigants do not procure justice but get subject to extreme racism by all the European Judges. Due to the racism the defendants get away from substantial claims.
The Chief District Court Judge lacks leadership skills, integrity, transparency and accountability and has poor management of the overall operation of the court system. Her continuous precedence as a Chief District Court Judge shall lead to more abuse to the court system and denial of justice to individuals.
It is a high time that the Chief District Court Judge should be dismissed in the interest of justice. I adjudge that a non-European Chief Judge should be appointed who could develop impartiality and fairness in the justice system offered by the District Court. All the European Judges should be expelled and replaced with different nationalities.
I have wasted fees to the disgraceful Auckland District Court and have procured no single cent of justice. At this stage I am instigating claims to recover my money that has been fed to this racist Court. I shall further file complaints about the Chief District Court Judge to the Judicial Conduct Commissioner and judicial review instigated.
Extremely poor justice standard worst than third world countries. I looked forward to a reply in respect to the aforesaid matters.
[43] In the circumstances the response of Judge Sharp was understandable and measured. The memorandum prepared by Mr Rafiq contained contemptuous material and was offensive. The Judge’s response cannot be criticised. Anyone, other than Mr Rafiq, would see the irony in his complaint that it was he that was threatened by Judge Sharp’s minute.
Summary/result
[44] Mr Rafiq’s application for judicial review is completely misconceived. The matters he complains of go nowhere near amounting to disclosing a reasonably arguable cause of action against the District Court or the Judges or Registrar of that Court.
[45] Mr Rafiq’s proceeding is itself frivolous, vexatious and an abuse of process. [46] The application for judicial review is struck out.
[47] In the circumstances there is no need to consider the application for summary judgment or Mr Rafiq’s application to review the Registrar’s decision to decline to allocate a hearing for his summary judgment application in any detail. The application for summary judgment, like the substantial claim was misconceived. Those applications are also dismissed.
Costs
[48] The defendant seeks costs on a 2B basis. I would have been prepared to consider costs on an indemnity or uplifted basis given the hopeless nature of the proceedings, however, as costs are only sought on a 2B basis the defendant is to have
costs on that basis against Mr Rafiq.
Venning J
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