Rafiq v Civil Aviation Authority
[2021] NZHC 2420
•15 September 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-125
[2021] NZHC 2420
BETWEEN RAY RAZDAN RAFIQ
Applicant
AND
CIVIL AVIATION AUTHORITY
Respondent
Hearing: On the papers Counsel:
Appearances:
CH Macklin for the Respondent
RR Rafiq, Applicant in person
Judgment:
15 September 2021
JUDGMENT OF FITZGERALD J
[Application for leave to appeal to Court of Appeal]
This judgment was delivered by me on 15 September 2021 at 3.00pm
Registrar/Deputy Registrar
Date…………………..
Solicitors: Gordon & Pilditch, Rotorua
To: R Rafiq, Auckland
RAFIQ v CAA [2021] NZHC 2420 [15 September 2021]
Introduction
[1] In 2008, the applicant, Mr Rafiq, pleaded guilty to and was convicted by the District Court of two charges of breaching s 49 of the Civil Aviation Act 1990 (the CAA) (the Convictions). The Convictions related to Mr Rafiq’s failure to disclose relevant information to the Director of Civil Aviation (the Director) in connection with his application for a pilot’s licence. Mr Rafiq was fined $500 and ordered to pay Court costs of $130.
[2] In March of this year, 13 years later, Mr Rafiq applied for leave to appeal against the Convictions out of time. The primary basis of the proposed appeal was that the underlying information which he was said to have not disclosed to the Director, being traffic infringement offences, were inaccurately described in the particulars to the original charging documents as “convictions”. Mr Rafiq said that had the District Court Judge been aware of that error at the time, the charges would have been struck out. He further said that he was given incorrect advice by the Duty Lawyer at the time which led him to plead guilty to the charges. He also submitted that the traffic infringement offences could not be relevant information to be disclosed to the Director pursuant to s 49 of the CAA in any event, and thus he would have had good grounds to defend the charges. Mr Rafiq also raised issues around the District Court not allocating a hearing date or offering him the right to be tried by jury.
[3] As to the length of time that had elapsed before seeking leave to appeal, Mr Rafiq attributed this to being busy with work, study, and other litigation (in this and the District Court), and suggested that he was not aware that he could appeal until he learned that in connection with his other litigation.
[4] In declining Mr Rafiq’s application for leave to appeal out of time, I observed that given the very lengthy delay in this case, the merits of Mr Rafiq’s proposed appeal would need to be very clear to justify granting leave.1 I concluded that none of Mr Rafiq’s arguments appeared to be seriously arguable, and accordingly there was no evidence that a miscarriage of justice would occur if leave were declined.
1 Rafiq v Civil Aviation Authority [2021] NZHC 1273 (the Leave Judgment).
[5] Mr Rafiq now applies for leave to appeal to the Court of Appeal against the Leave Judgment. Mr Rafiq originally filed his application for leave with the Court of Appeal, pursuant to s 144(3) of the Summary Proceedings Act 1957 (the Act). But pursuant to s 144(2) of the Act, an application for leave to appeal to the Court of Appeal is first to be determined by the High Court. If the High Court declines the application, an applicant may then seek special leave from the Court of Appeal, pursuant to s 144(3).
[6] Mr Rafiq did not file any submissions with his notice of application for leave. The Director filed a notice of opposition setting out the grounds of opposition (and attaching relevant caselaw). I minuted the file on 5 July 2021 confirming that Mr Rafiq’s application would be dealt with on the papers and inviting Mr Rafiq to file submissions in response on or before 8 July 2021. Mr Rafiq did not file any submissions. I accordingly determine the application on the basis of the matters set out in Mr Rafiq’s notice of application for leave to appeal.
Mr Rafiq’s grounds for seeking leave to appeal
[7] While somewhat unclear as to the precise basis upon which leave to appeal to the Court of Appeal is sought, Mr Rafiq’s notice of application essentially repeats the grounds advanced in support of his original application for leave to appeal against the Convictions out of time. In brief, he submits that:
(a)the error in the particulars to the charging documents invalidates the Convictions;
(b)the High Court does not have the power, at this point, to “correct” that error and hence should allow the appeal;
(c)he was wrongly denied the opportunity of electing a trial by jury on the underlying charges; and
(d)he has good grounds of defence against the underlying charges, presumably that particulars to the charges referred to convictions instead of offences, and that the Director ought not to have taken the
infringements into account, not being relevant information for the purposes of s 49 of the CAA.2
[8] Mr Rafiq does not (expressly at least) frame these issues as raising a question (or questions) of law of general or public importance. Rather, he frames them as indicating that there has been a miscarriage of justice.
Legal context
[9] The parties both proceed on the basis that s 144 of the Act applies, as the relevant statutory appeal provision in force at the time of the Convictions were entered.
[10]Section 144(2) relevantly provides that:
…the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(emphasis added)
[11] The Court of Appeal in R v Slater considered the requirements of s 144(3), which contains the same threshold test for leave as s 144(2).3 The Court emphasised that the test for leave under s 144 is relatively strict and is not to be “diluted”.4 Parliament had, in the Court’s view, intended that appeals from the District Court were to be brought to a conclusion after the defendant exercised their right of general appeal to the High Court, other than when the conditions in s 144 are met. The Court emphasised that that clear words adopted in s 144 must not be disregarded.5 Furthermore, the question posed on the proposed appeal must give rise to a question of law: if it does not, there is no residual discretion to nevertheless grant leave to appeal.6
2 While not clear, this proposed ground of appeal might also be intended to encompass other grounds that Mr Rafiq relied on in seeking leave to appeal out of time, such as that the underlying infringements were incurred under a different legal name; that the District Court did not allocate a hearing date; or that the two convictions have not been properly expunged by the operation of the Criminal Records (Clean Slate) Act 2004.
3 R v Slater [1997] 1 NZLR 211 (CA).
4 At 215.
5 At 215.
6 At 215.
Analysis
[12] The precise question of law which Mr Rafiq proposes ought to be put before the Court of Appeal is difficult to discern. Some of the matters he raises are factual inquiries. But I proceed on the basis that the proposed appeal does, or could, involve a question(s) of law, and in particular:
(a)whether the error in the particulars to the charging documents (by referring to “convictions” rather than offences) itself invalidates the Convictions; and/or
(b)whether a failure to disclose to the Director traffic infringement offences can constitute “relevant information” for the purposes of s 49 of the CAA.
[13] Proceeding on the basis of these proposed questions of law, the issue for determination is whether either or both give rise to matters of general or public importance.
[14] The first proposed question is not, in my view, a matter of general or public importance. The issue raised by Mr Rafiq is addressed in several ways, as explained the Leave Judgment, and in particular that it would have been open for the error in the particulars to be corrected (pursuant to s 43 of the Act), and the error would not have resulted in the Convictions being a nullity in any event.7 Similarly, for the reasons given in the Leave Judgment, I do not consider the argument that Mr Rafiq’s earlier traffic infringement offences do not constitute “relevant information” for the purposes of s 49 of the CAA to have any real merit.8 For that reason, I do not consider that issue to give rise to any matter of general or public importance.
[15] Finally, the High Court may grant leave to appeal to the Court of Appeal “for any other reason”. This would, in my view, include where there is a real risk that there will be a miscarriage of justice if leave were declined. As the Court of Appeal stated
7 Leave Judgment, at [13].
8 Leave Judgment, at [14].
in Slater, despite the constraints of s 144 of the Act, the Court “will, of course, set its mind against the perpetuation of an injustice.”9
[16] Again, and for the reasons already traversed in the Leave Judgment, I do not consider granting leave to appeal is necessary to avoid a miscarriage of justice. In summary, the delay in this case is extremely long and with no real explanation for it, and Mr Rafiq’s proposed appeal has little merit.
[17]I accordingly decline to grant leave pursuant to s 144(2) of the Act.
Fitzgerald J
9 At 215.
0