Rafiq v Director of the Civil Aviation Authority of New Zealand

[2014] NZCA 519

IN THE COURT OF APPEAL OF NEW ZEALAND

CA552/2014
[2014] NZCA 519

BETWEEN	RAZDAN RAFIQ Appellant
AND	THE DIRECTOR OF THE CIVIL AVIATION AUTHORITY OF NEW ZEALAND Respondent

Counsel:

Appellant in person
A R Longdill and O Klaassen for Respondent

Judgment:

(On the papers)

29 October 2014 at 10 am

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

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.

BThe application for stay is dismissed.

CThe appellant is to pay the sum of $5,880.00 by way of security for costs on or before 18 November 2014.

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REASONS

1. On 1 October 2014 the appellant, Razdan Rafiq, pre-emptively applied to review a decision later made by the Registrar on 14 October, declining his application to dispense with security for costs on this appeal against strike-out in Rafiq v Director of Civil Aviation Authority of New Zealand.[1]  She directed the security be set at $5,880.00 and be paid on or before 11 November 2014.

   [1]Rafiq v Director of Civil Aviation Authority of New Zealand [2014] NZHC 2296.

2. Mr Rafiq has no right to apply for a review of the Registrar’s decision before that decision has been made, but to avoid further inconvenience to the Registry from the inevitability of a fresh challenge to the decision on the same grounds as now advanced I am prepared to consider the documents filed by Mr Rafiq as an application to review the decision subsequently made.

3. The Registrar properly concluded that security for costs should not be dispensed with 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.  She was right to determine that impecuniosity does not suffice, and could have added that there are no exceptional circumstances justifying dispensation in this case.  Furthermore, this appeal does not raise an issue of public importance or significance. 

4. The Registrar was also entitled to take into account Venning J’s observation in the judgment under appeal that Mr Rafiq’s proceedings are an abuse of the process of the Court, and that Mr Rafiq has previously acknowledged that his efforts are deliberate attempts to vex and harass the various respondents.  The Registrar properly concluded it would not be right to require the various respondents in this appeal to defend the judgment under challenge without the usual protection as to costs provided by security.[2] 

   [2]Reekie v Attorney-General [2014] NZSC 63 at [31].

5. Mr Rafiq also made a pre-emptive application for a stay of the substantive appeal in this Court pending his appeal from the present review decision to the Supreme Court.  It is neither practical nor appropriate that three Judges of this Court consider the stay application and so I consider it alone.[3]  These well-settled factors are decisive against granting the stay:[4] (a) the appeal will not be rendered nugatory by the lack of a stay; (b) Mr Rafiq’s appeal does not appear to be in good faith; (c) the questions involved are not novel or important; (d) there is not any public interest in the proceeding; and (e) the appeal has no apparent merit.

   [3]Pursuant to rr 7(1) and 12 of the Court of Appeal (Civil) Rules 2005.

   [4]Recently summarised in Yan v Mainzeal Property and Construction Ltd (in rec and liq) [2014] NZCA 86 at [25].

6. Mr Rafiq’s applications to review the Registrar’s decision and for a stay are dismissed.  Accordingly he must pay the sum of $5,880.00 by way of security for costs on or before 18 November 2014.

Solicitors:
Meredith Connell, Auckland for Respondent