Rafiq v Commissioner of New Zealand Police

[2017] NZHC 2739

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002601 [2017] NZHC 2739

UNDER

The New Zealand Bill of Rights Act 1990,

Defamation Act 1992, Senior Courts Act
2016

BETWEEN

RAZDAN RAFIQ Plaintiff

AND

THE COMMISSIONER OF NEW ZEALAND POLICE

Defendant

Hearing:	On the papers
Judgment:	8 November 2017

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on Wednesday, 8 November 2017 at 4:45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

RAFIQ v THE COMMISSIONER OF NZ POLICE [2017] NZHC 2739 [8 November 2017]

Introduction

[1]      Mr Rafiq seeks leave to file a proceeding against the Commissioner of Police. In his draft statement of claim Mr Rafiq alleges the Commissioner has defamed him in various circumstances dating back to 2007 and seeks compensatory damages of

$90  million,  aggravated  damages  of  $70  million  and  exemplary  damages  of

$70 million.

[2] Because Mr Rafiq has been declared a vexatious litigant pursuant to s 88B of the Judicature Act 1908 (Judicature Act),1 he requires the leave of the court before he can file any proceeding. The fact that s 88B of the Judicature Act has been repealed by the Senior Courts Act 2016 (Senior Courts Act) does not affect the validity of actions taken under the section before it was repealed. S 17(1) of the Interpretation Act provides:

17        Effect of repeal generally

(1)      The repeal of an enactment does not affect—

(a)   the validity, invalidity, effect, or consequences of anything done or suffered:

…

(c)   an existing status or capacity:

…

(e)   the previous operation of the enactment or anything done or suffered under it.

[3]      Accordingly, Mr Rafiq’s status as a vexatious litigant stands.

Legal test

[4]      Prior to its repeal, s 88B(2) of the Judicature Act provided that a court or judge shall not grant leave to a person previously declared to be a vexatious litigant:

… unless the court or judge is satisfied that the proceeding is not an abuse of the process of the court and that there is prima facie ground for the proceeding.

1      Attorney-General v Rafiq [2015] NZHC 1153

[5]      As Courtney J discussed in her judgment of 4 August 2017 declining an earlier application by Mr Rafiq for leave to file a different proceeding,2  it has been accepted  that  the  definition  of  “prima  facie  case”  in  Spiller  Butterworths  New Zealand Law Dictionary is apposite for assessing what constitutes “a prima facie ground” for the purposes of s 88B(2) of the Judicature Act.  That definition provides that a prima facie case is:3

A serious, as opposed to a speculative case.

A litigating party is said to have a prima facie case where the evidence is sufficiently strong for his or her opponent to be called to answer it.

[6]      For the sake of completeness, I note that s 88B of the Judicature Act has been replaced by ss 166-169 of the Senior Courts Act:

(a)      Section 166 provides that a judge of the High Court may make an order of limited effect, extended effect or of general effect restricting a person from commencing or continuing a civil proceeding;

(b)Section 167 provides that a judge may make an order under s166 where the judge considers the proceeding to be “totally without merit”.4

(c)      Sections 168 and 169 enable a person subject to an order made under s166 to apply for leave to continue or commence a proceeding.  The sections do not prescribe a threshold that must be met when a person subject to an order made under s 166 seeks leave to commence a proceeding.

[7]      While the Senior Courts Act does not provide any specific transitional arrangements for a person in Mr Rafiq’s situation who has been declared vexatious under the now repealed s 88B of the Judicature Act, it is appropriate to have regard

to these new provisions when considering Mr Rafiq’s application for leave.  In this

2      Rafiq v Attorney-General & Ors [2017] NZHC 1852.

3      Peter Spiller New Zealand Law Dictionary (8th ed, LexisNexis, Wellington, 2015) at 233.

4      Section 167(1)-(3).

regard,  the  commentary  on  s  166  of  the  Senior  Courts  Act  in  McGechan  on

Procedure is instructive:5

Sections 166-169 replace s88B of the Judicature Act 1908 with a new regime that provides for the High Court to be able to issue three progressively more extensive orders restricting a person from continuing or commencing civil proceedings.

The new regime responds to concerns about the increasing number of vexatious  litigants,  who,  the  Minister  of  Justice  said  in  her  speech introducing the Bill, “use up valuable court resources to pursue meritless proceedings time and time again”.  The Ministry of Justice, in a briefing to the Justice and Electoral Committee, explained that s 88B targeted “only the most serious vexatious litigants” so orders under it were rarely applied for or granted. …

The new regime I intended to provide greater flexibility for dealing with these problem litigants.

Discussion

[8]      In his draft statement of claim, Mr Rafiq asserts that the Commissioner of Police has provided information to other Government departments about Mr Rafiq’s honesty, character and actions.   Mr Rafiq alleges this information is false and defamatory.

[9]      Mr Rafiq has not provided an affidavit in support of his draft statement of claim to substantiate what precisely that information was, how it was provided, why it was false as Mr Rafiq alleges, and when Mr Rafiq became aware of the Commissioner’s actions in this regard.  This last point is important because, on the face of the draft statement of claim, all of the alleged instances of information being provided by the Commissioner took place between 2007 and 2011.  The proceeding Mr  Rafiq  wishes  to  bring,  therefore,  may be  outside  the  limitation  periods  for defamation actions provided in the Limitation Act 2010.6

[10]     As to the substance of Mr Rafiq’s draft statement claim, Mr Rafiq seeks to bring into issue the accuracy of information that the Commissioner has provided to

5      AC Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [SC166.01].

6      Pursuant to ss 11 and 15 of the Limitation Act 2010, it is a defence to a money claim for defamation if the claim is filed at least two years after the date of the act or omission on which the claim is based unless the claimant had “late knowledge” of the claim in terms of s 11 of the Limitation Act.  The “late knowledge” period in the case of a claim for defamation is also two years.

the Department of Internal Affairs, the (now disestablished) Department of Labour, the  Commissioner  of  Inland  Revenue  and  the  Privacy  Commissioner.    Without further information it is impossible to assess whether there is any merit to Mr Rafiq’s assertions that the Commissioner has defamed him when the Commissioner has been, it would seem, responding to legitimate inquiries by agencies carrying out their authorised functions and responsibilities.

[11]     Accordingly,  Mr Rafiq  has  not  satisfied  me that  he has  “a prima facie” ground for the proceeding in terms of s 88B(2) of the Judicature Act – that is, a serious as opposed to a speculative case. Moreover, given Mr Rafiq’s history, the fanciful sums he wishes to seek in damages and the fact he has chosen this route rather than for example, making a complaint under the Independent Police Conduct Authority Act 1988, all lead me to conclude that this application is not serious and would be an abuse of the process of the court in terms of s 88B(2) of the Judicature Act.  In these respects, the claim is “totally without merit” in terms of s 167 of the Senior Courts Act.

Decision

[12]     The application is dismissed.

van Bohemen J