Rafiq v Commissioner of New Zealand Police

IN THE COURT OF APPEAL OF NEW ZEALAND

CA669/2014
[2015] NZCA 8

BETWEEN	RAZDAN RAFIQ Appellant
AND	THE COMMISSIONER OF NEW ZEALAND POLICE Respondent

Counsel:

Appellant in person
N Whittington and O Klaassen for Respondent

Judgment:

(On the papers)

5 February 2015 at 3.30 pm

JUDGMENT OF HARRISON J
(Review of Registrar’s Decision)

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
BThe appellant is to pay the sum of $5,880 by way of security for costs on or before 23 February 2015.

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REASONS OF THE COURT

(Given by Harrison J)

On 2 January 2015 the appellant, Razdan Rafiq, applied to review a decision later made by the Registrar on 17 December 2014, declining his application to dispense with security for costs on this appeal against a judgment delivered by Andrews J in the High Court at Auckland.[1] The Registrar directed the security be set at $5,880.00 and be paid on or before 30 January 2015.
[1]Rafiq v The Commissioner of New Zealand Police [2015] NZHC 2837.
Mr Rafiq is a bankrupt. He relies primarily on his impecuniosity to assert that the Registrar erred. However, she was correct in law in deciding that “impecuniosity alone does not warrant dispensation from the requirement to pay security for costs”.
The Registrar was also correct formulating the test to be applied as follows:
Security for costs will only be dispensed with where I am of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security. If a reasonable and solvent litigant would not proceed with the appeal having regard to the benefits of bringing the appeal weighed against the costs of bringing the appeal, then security for costs will not be dispensed with.
The Registrar carefully reviewed all the relevant circumstances including the judgment under appeal before concluding that there were no exceptional circumstances justifying dispensation, and nor did the appeal carry any significant public interest. She correctly concluded that it would not be right to require the Commissioner to defend the appeal without the usual protection for security for costs.
Mr Rafiq has not identified any error of principle or law by the Registrar. Moreover, she was correct to conclude also that the appeal was vexatious. It is also hopeless. Andrews J was right to strike out Mr Rafiq’s proceeding as vexatious and an abuse of process of the Court.
Mr Rafiq’s application to review the Registrar’s decision is dismissed. Accordingly he must pay the sum of $5,880.00 by way of security for costs on or before 23 February 2015.

Solicitors:
Meredith Connell, Auckland for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Razdan Rafiq against the Commissioner of New Zealand Police. The appellant sought to overturn a decision made by the Registrar, who had refused to exempt him from the requirement to provide security for costs on his appeal against a judgment delivered by Andrews J in the High Court at Auckland. The Registrar had set the security for costs at $5,880, which was to be paid by 30 January 2015.

The legal issue before the court was whether the Registrar had erred in denying the appellant's application to be exempt from the requirement to provide security for costs. The appellant, who was a bankrupt, relied primarily on his financial hardship to argue that the Registrar's decision was incorrect. The court considered whether the Registrar had correctly applied the law in determining that impecuniosity alone does not warrant exemption from the requirement to provide security for costs. The court also considered whether the Registrar had correctly applied the test for determining when security for costs would be dispensed with.

The court held that the Registrar had not erred in law in denying the appellant's application to be exempt from the requirement to provide security for costs. The court agreed with the Registrar that impecuniosity alone does not warrant exemption from the requirement to provide security for costs. The court also agreed with the Registrar's formulation of the test for determining when security for costs would be dispensed with. The court held that the Registrar had correctly reviewed all relevant circumstances before concluding that there were no exceptional circumstances justifying exemption, and that the appeal did not carry any significant public interest. The court also held that the appeal was vexatious and hopeless, and dismissed the appellant's application to review the Registrar's decision. As a result, the appellant was required to pay the sum of $5,880 by way of security for costs on or before 23 February 2015.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established