Rafiq v Auckland Transport

[2018] NZHC 641

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-555

[2018] NZHC 641

UNDER

The Senior Courts Act 2016, Supreme Court Rules

BETWEEN

RAZDAN RAFIQ

Plaintiff

AND

AUCKLAND TRANSPORT

First Defendant

Hearing:	On the papers
Judgment:	11 April 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by Justice van Bohemen On 11 April 2018 at 12noon

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

RAFIQ v AUCKLAND TRANSPORT [2018] NZHC 641 [11 April 2018]

Introduction

[1]    Mr Rafiq seeks leave to file a proceeding against Auckland Transport, a Council Controlled Organisation of Auckland Council, and the Supreme Court.

[2]    It is not apparent from the draft statement of claim that the claims against the two defendants are related.

[3]    The claim against Auckland Transport is for defamation allegedly occurring when Auckland Transport issued Mr Rafiq an infringement notice for operating a private vehicle on a road when the vehicle was not displaying the current licence of the vehicle. The defamation is said to arise from the fact the infringement notice has been processed in the usual way and proceedings initiated in the Manukau District Court.

[4]    The claim against the Supreme  Court  is  said  to  arise  from  a  breach  of Mr Rafiq’s right to bring an appeal in a civil proceeding that is not identified in the draft statement of claim. However, it is said in the draft statement of claim that the Court Registrar failed to file an application for leave to appeal. Regardless of the merits of whatever facts lie behind the claim, the claim cannot succeed. Courts are immune from suit, as are judges of superior courts when carrying out their official duties.1 While there may be a question about whether that immunity applies also to registrars when carrying out their duties,2 I see this claim as singularly unsuited for resolving that question.

[5]    The claim against both defendants is for damages of $900,000,000,000, 000,000,000,000,000,000,000,000,000,000,000,000,000.00. In the case of Auckland Transport, that sum is sought separately for compensatory damages, aggravated damages and exemplary damages. In the case of Supreme Court, the claim is for exemplary damages only.

[6]Mr Rafiq has been declared a vexatious litigant pursuant to s 88B of the

1      Gazely v Lord Cooke of Thorndon [1999] 2 NZLR 668 (CA); Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.

2      Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [208].

Judicature Act 1908.3 He requires the leave of the court before he can file any proceeding. As noted in an earlier decision I made on another application by Mr Rafiq,4 the fact that s 88B of the Judicature Act has been repealed by the Senior Courts Act 2016 does not affect the validity of actions taken under the section before it was repealed.

[7]    Despite the assertion in the application for leave that the proceeding is not vexatious or an abuse of process, it is clearly in the same category as other applications that Mr Rafiq has brought for which leave has been refused. The draft statement of claim falls well short of establishing that Mr Rafiq has a prima facie case – in the sense of “a serious, as opposed to a speculative case”5 – against either defendant. Moreover, as Davison J observed in a decision dismissing another application by Mr Rafiq, the exorbitantly large claims for exemplary damages are themselves an indication that the claim does not fall into the category of a “serious case”.6 I also consider the claim is an abuse of process and the proposed proceeding is yet another example of the behaviour that led to Mr Rafiq being declared a vexatious litigant.

Decision

[8]The application is dismissed.

van Bohemen J

3      Attorney-General v Rafiq [2015] NZHC 1153.

4      Rafiq v Commissioner of Police [2017] NZHC 2739.

5      Re Collier [2008] 2 NZLR 505 (HC); cited in Rafiq v Attorney-General [2017] NZHC 1852 at [4] and in Rafiq v Ministry of Justice [2018] NZHC 544 at [4].

6      Rafiq v Ministry of Justice [2018] NZHC 544 at [8].