Rafiq v Director of Civil Aviation Authority of New Zealand

[2015] NZHC 3049

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000015 [2015] NZHC 3049

BETWEEN

RAZDAN RAFIQ

Applicant

AND

THE DIRECTOR OF CIVIL AVIATION AUTHORITY OF NEW ZEALAND Respondent

CIV-2015-404-002709

BETWEEN  RAZDAN RAFIQ Applicant

ANDIMMIGRATION NEW ZEALAND Respondent

CIV-2015-404-002710

BETWEEN  RAZDAN RAFIQ Applicant

ANDTHE DIRECTOR OF THE CIVIL AVAIATION AUTHORITY OF NEW ZEALAND

Respondent

CIV-2015-404-002766

BETWEEN  RAZDAN RAFIQ Applicant

ANDATTORNEY-GENERAL OF NEW ZEALAND

Respondent

RAFIQ v THE DIRECTOR OF CIVIL AVIATION AUTHORITY OF NEW ZEALAND [2015] NZHC 3049 [3

December 2015]

CIV-2015-404-002767

BETWEEN  RAZDAN RAFIQ Applicant

ANDTHE DIRECTOR OF THE CIVIL AVAIATION AUTHORITY OF NEW ZEALAND

Respondent

CIV-2015-404-002832

BETWEEN  RAZDAN RAFIQ Applicant

ANDTHE SECRETARY FOR THE DEPARTMENT OF INTERNAL AFFAIRS OF NEW ZEALAND Respondent

Hearing:	(On the papers)
Judgment:	3 December 2015

JUDGMENT OF PALMER J

Summary

[1]      Mr Razdan Rafiq has, with his consent, been declared a vexatious litigant under s 88B of the Judicature Act 1908 (the Act).  He has sought leave to file 30 civil proceedings against various parties on various grounds.   Under s 88B(2) I decline leave in relation to all of the proposed proceedings as I am not satisfied that any is not an abuse of process of the Court and I am not satisfied that there is a prima facie ground for any of them.

Background

[2]      On 27 May 2015 Wylie J made an order under s 88B(1) of the Act that no civil proceeding shall, without leave of the High Court, be instituted by Mr Rafiq in

any Court.    Mr  Rafiq  had  formally withdrawn  his  statement  of  defence  to  the application  for  this  order,  had  accepted  the  allegations,  and  had  requested  that Wylie J make the order declaring him to be a vexatious litigant under s 88B.

[3]      Accordingly, under s 88B(2) of the Act, leave may only be granted by the Court to Mr Rafiq to institute civil proceedings if the Court thinks fit and leave “shall not be granted 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”.

Applications for leave

[4]      Mr  Rafiq  has  filed  in  the  Court  applications  for  leave  to  commence proceedings in relation to a number of proposed defendants on a number of proposed grounds.  The applications, with accompanying draft Statements of Claim, were filed on  the  following  dates  in  2015:  6  November;  9  November;  11  November;

23 November; 27 November (12 applications); and 2 December (14 applications).

[5]      The format of each application is the same, submitting that the proceedings are not vexatious, have prima facie merit, that there will be substantial miscarriage of justice if leave is declined, there will be no prejudice to the respondent if the order is granted and leave is in the interest of justice.

[6]      I am aware that there is a risk that the filing of so many claims by a litigant who has been declared vexatious may lead a court to presume that all proposed claims by the applicant are unmeritorious.  To guard against this risk I have carefully reviewed each one on its merits.

[7]      I am not satisfied that any of the proposed proceedings is not an abuse of process of the Court and I am not satisfied that there is a prima facie ground for any of the proposed proceedings.  Indeed, the volume of unmeritorious applications itself is an abuse of the process of the Court.   In relation to the lack of a prima facie ground for the proposed proceedings:

(a)      Except for one, all of the proposed defamation proceedings (the proceedings numbers ending in 15, 2709, 2710, 2767, 2832 and those filed on 2 December) concern statements made to those who have a right or need to know the information communicated, so the claims would undoubtedly be defeated by the defence of qualified privilege even if honest opinion was not made out.  Other defences may also be available in some proposed proceedings, such as absolute privilege in relation to statements made in Court.

(b)The other defamation proceeding (one of those proposed against APN NZ Ltd under application ending 2832) complains that the applicant was defamed as being a vexatious litigant (as do some of the other proposed proceedings).   The applicant’s agreement that he be so declared by the High Court means that the defence of truth or honest opinion would inevitably succeed.

(c)      Other proceedings (that ending in 2766 and that against the Dave Oceanic Hostel Ltd filed on 2 December 2015) disclose no cause of action that is actionable at law in the High Court (though the applicant may be able to complain to the Tenancy Tribunal or Privacy Commissioner) and another (against the Commissioner of Police, filed under application ending 2832) is not accompanied by a draft Statement of Claim so its nature cannot be determined.

………………………………................

Palmer J