Rafiq v Privacy Commissioner

IN THE COURT OF APPEAL OF NEW ZEALAND

CA116/2014
[2014] NZCA 137

BETWEEN	RAZDAN RAFIQ Appellant
AND	THE PRIVACY COMMISSIONER Respondent

Counsel:

Appellant in Person
K Evans for Respondent

Judgment:

(On the papers)

10 April 2014 at 10.00 am

JUDGMENT OF HARRISON J

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 $5,880.00 by way of security for costs on or before 1 May 2014.

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REASONS

On 31 March 2014 the appellant, Razdan Rafiq, applied to review a decision made by the Registrar on 18 March 2014 (erroneously dated 2013), declining his application to dispense with security for costs on this appeal. She directed that the security be set at $5,880.00 and be paid on or before 15 April 2014.
The grounds for the Registrar’s direction were that Mr Rafiq had failed to establish it was in the interests of justice that costs be waived. In particular she was not satisfied that there were any exceptional circumstances justifying dispensation. Impecuniosity alone does not suffice. Furthermore, the appeal does not raise an issue of public importance or significance.
The Registrar also gave weight to the unequivocal conclusion of Lang J, whose judgment is the subject of Mr Rafiq’s appeal, that his application to pursue a claim against the Privacy Commissioner lacked merit and it would be wrong to expose the Commissioner to the inevitable costs of defending a proceeding without any prospects of success.
Mr Rafiq has requested that his application be referred to Harrison J for determination to enable the initiation of a further appeal to the Supreme Court.
Mr Rafiq has failed to establish that the Registrar erred. Additionally I am independently satisfied that the appeal has no merit or prospects of success. The application to review is dismissed. Mr Rafiq is to pay the sum of $5,880.00 by way of security for costs on or before 1 May 2014.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand presided over an appeal by Razdan Rafiq against the Privacy Commissioner. Rafiq sought to review a decision made by the Registrar, who declined to waive the requirement for Rafiq to provide security for costs associated with the appeal. The Registrar's decision was based on the absence of exceptional circumstances justifying dispensation, the lack of impecuniosity as a standalone reason, and the conclusion that the appeal lacked public importance or significance. Furthermore, the Registrar highlighted that the primary judge had concluded that Rafiq's application against the Privacy Commissioner lacked merit.

The primary legal issue before the Court of Appeal was whether the Registrar's decision to require Rafiq to provide security for costs was correct. This involved assessing whether the Registrar had erred in finding that there were no exceptional circumstances justifying the waiver of security for costs, and whether the appeal had any merit or prospects of success. The Court of Appeal had to consider the grounds for the Registrar's decision, the nature of the appeal, and the conclusions of the primary judge. The Court of Appeal also had to determine whether the appeal raised issues of public importance or significance, which could have influenced the decision on security for costs.

The Court of Appeal found that Rafiq had not established that the Registrar had erred in requiring security for costs. The Court was independently satisfied that the appeal lacked merit and prospects of success. The Court noted that the Registrar had properly considered the grounds for requiring security for costs and that Rafiq had not provided sufficient justification for dispensing with this requirement. The Court also upheld the Registrar's consideration of the primary judge's conclusion that the appeal lacked merit and the lack of public importance or significance. Consequently, the application to review the Registrar's decision was dismissed, and Rafiq was directed to pay the sum of $5,880.00 by way of security for costs on or before 1 May 2014.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established