Rafiq v Registrar of the High Court at Auckland
[2023] NZHC 1913
•21 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000557
[2023] NZHC 1913
BETWEEN RAZDAN RAFIQ
Plaintiff
AND
THE REGISTRAR OF THE HIGH COURT AT AUCKLAND
First Defendant
THE DISTRICT COURT AT AUCKLAND
Second Defendant
Hearing: 20 July 2023 Appearances:
Plaintiff in Person
H T Reid for Defendants
Judgment:
21 July 2023
JUDGMENT OF VENNING J
This judgment was delivered by me on 21 July 2023 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland Copy to: Plaintiff
RAFIQ v THE REGISTRAR OF THE HIGH COURT AT AUCKLAND [2023] NZHC 1913 [21 July 2023]
Introduction
[1] Razdan Rafiq has filed an application seeking leave under the Limitation Act 2010 to commence civil proceedings out of time.
[2] In his draft (amended) statement of claim, Mr Rafiq seeks an order “directing the registry to refund” a number of filing fees.
[3]Mr Rafiq seeks to recoup the following fee payments:
(a)$1,328.00 paid to the High Court on 4 January 2013, for a statement of claim in proceedings: Rafiq v Department of Labour (CIV-2013-404 02).
(b)$725.10 paid to the High Court on 23 January 2013, for an application to bring an appeal out of time: Rafiq v APN NZ Ltd (CIV-2013-404- 305).
(c)$725.00 paid to the High Court on 04 April 2013, for an application for leave to bring defamation proceedings out of time: Rafiq v Department of Labour (CIV-2013-404-1717).
(d)$90.00 paid to the civil registry of the District Court at Auckland on 10 May 2018, for a claim in: Rafiq v Supercity Towing Limited (CIV-2018- 094-657).1
[4] The application is opposed by the Crown on behalf of the District Court. In relation to the challenge to the decisions of the Registrar of the High Court the Crown abides.
[5] Mr Rafiq has filed a number of documents related to the issue of his applications for fee waivers and refunds with his application and purported proceedings. During the course of the hearing he handed up a further document, a
1 The original claim was stated to be a draft dated 24 February 2023. An amended draft statement of claim was filed 6 July 2023.
copy of proceedings issued by him in 2014. The Crown has filed an affidavit by Chloe Rodgers attaching copies of recent processed applications for fee waivers.
Procedural issues
[6] Mr Rafiq is no stranger to the issuing of proceedings in this Court and in other jurisdictions. A number have been vexatious. On 27 May 2015 Wylie J made an order under s 88 of the Judicature Act 1908 that Mr Rafiq was not to initiate civil proceedings in any Court without leave. Pursuant to the provisions of ss 166–168 of the Senior Courts Act 2016 (SCA), that prohibition has lapsed.
[7] There are a number of procedural issues with Mr Rafiq’s proposed proceedings. The first is that he cites the High Court as a defendant. The High Court, together with the Court of Appeal and the Supreme Court, is a superior Court. The High Court is the only Court that possesses inherent jurisdiction. It has authority to determine judicially and authoritatively what the limits of its own jurisdiction may be. Decisions of Judges of the High Court are not amenable to review.
[8] The High Court acts through the Judges of the High Court and from time to time, when expressly authorised, its jurisdiction is exercised by Registrars of the High Court. To the extent Mr Rafiq’s purported proceedings seek a repayment of fees or challenge decisions about fees paid to the High Court, the initial decisions were made by the Registrar of the High Court. The Registrar of the High Court is the appropriate first defendant rather than the High Court.
[9] The same position does not apply to the District Court as an inferior court. It can appropriately be cited as a defendant and is cited as such, from time to time, in judicial review matters.
[10] The next issue concerns Mr Rafiq’s reference to the provisions of the Limitation Act. His reference to and purported reliance on the Limitation Act is misconceived. To the extent the proceedings seek to challenge decisions of the Registrar of the High Court an application for leave to review the decisions of the Registrar out of time is the appropriate application. Similarly, to the extent Mr Rafiq seeks to challenge decisions of the District Court, the appropriate application is for
leave to appeal or review out of time, rather than under the Limitation Act. I treat the applications before the Court as such.
The High Court Fees Regulations
[11] The relevant provisions of the High Court Fees Regulations 2013 are regs 18 and 23.
[12]Regulation 18 provides:
Power to waive fees
(1)A person otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to a Registrar for a waiver of the fee.
(2)The Registrar may waive the fee payable by the person if satisfied,—
(a)on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee; or
(b)that the proceeding,—
(i)on the basis of one of the criteria specified in regulation 20, concerns a matter of genuine public interest; and
(ii)is unlikely to be commenced or continued unless the fee is waived.
(3)An application under subclause (1) must be made in a form approved for the purpose by the chief executive of the Ministry of Justice unless, in a particular case, the Registrar considers that an application in that form is not necessary.
[13]Regulation 23 provides:
Power to refund fees
(1)A Registrar may, on application made to him or her, refund a fee that has been paid if satisfied that—
(a)no application, under regulation 18, for a waiver of the fee was made; and
(b)the fee would have been waived, in accordance with regulation 18, had that application been made; and
(c)the criteria that would have justified that waiver still apply at the date of the application for the refund.
(2)An application under subclause (1) must be made in a form approved for the purpose by the chief executive of the Ministry of Justice unless, in a particular case, the Registrar considers that an application in that form is not necessary.
[14] If a person, such as Mr Rafiq, is dissatisfied with the decision of the Registrar on an application for waiver or refund then s 160, Senior Courts Act 2016 confirms that the person may apply to a Judge or Associate Judge for a review of the Registrar’s decision. Relevantly, s 160(2) provides that:
(2)The application must be made within—
(a)20 working days after the date on which the applicant is notified of the decision; or
(b)any further time that the Judge or Associate Judge allows on application, which may be made either before or after the expiry of that period.
[15] As there is a clear statutory pathway to obtain a refund of the fees paid and to review the Registrar’s decision on such an application, there is no jurisdiction or basis to seek to recover them in ordinary proceedings as Mr Rafiq proposes with his current proceedings (or indeed as he did in the 2014 proceedings, a copy of which he handed up during the hearing).
The fees paid in the Rafiq v Department of Labour CIV-2013-404-02 and CIV- 2013-404-1717 files
[16] These two proceedings were consolidated by a judgment of Priestley J on 17 May 2013.2 The proceedings were in fact stayed as Mr Rafiq failed to pay the security ordered by Priestley J in his judgment.
[17] Mr Rafiq has made a number of applications in relation to the fees paid in these proceedings. He first sought a refund of filing fees in 2013 which the Registrar declined. In a judgment issued on 30 October 2013 this Court dismissed Mr Rafiq’s application for review of the fees paid in CIV-2013-404-02.3
2 Rafiq v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 1134.
3 Re Rafiq [2013] NZHC 2860.
[18] Mr Rafiq then applied a second time for a refund for filing fees paid in the proceedings. In a judgment delivered on 17 December 2013 this Court again dismissed the applications.4 In that judgment the Court made an order that “The Registrar is directed not to accept any more documents from Mr Rafiq on these files”.
[19] Despite the above direction, in 2022 Mr Rafiq again applied for a refund for fees paid for these proceedings and the Registrar accepted the application. In decisions delivered on 16 December 2022 the Registrar again declined the applications.
[20] As noted in the previous judgment, the Regulations do not provide for or anticipate successive applications for waiver or refund. Mr Rafiq’s attempt to recover the fees paid for a third (possibly fourth) time is an abuse of process.5
[21] Mr Rafiq submitted that multiple applications can be made and referred to the prescribed form for individuals which is available on the Ministry of Justice website. It refers to:
Confirm your application status
□ I have not previously applied for this fee to be waived or refunded.
or
□ I applied for this fee to be waived or refunded on
Date
That application was refused but my circumstances changed and I want to apply again.
[22] To the extent the wording suggests multiple applications may be made for a refund, the wording of the form is inconsistent with the wording of the Regulations which must prevail. The form is obviously intended to be used for both waiver and refund applications. The current wording of the form may be intended to cover the situation where waiver has been declined when the proceedings were initially filed but as the proceedings progress an applicant’s circumstances may change which might entitle them to a waiver of payment for later fees during the course of the proceeding.
4 Re Rafiq [2013] NZHC 3440.
5 See [28] of this judgment.
[23] I note that the introductory part of the form refers to circumstances in which the form may be used, including:
·you have not been previously given a waiver in this proceeding
·you have previously been given a waiver, but your financial circumstances have changed or you’re changing the reason why you are applying for a waiver.
[24] There is no reference to the form applying to successive applications for refund. Nor is there any statutory basis for multiple applications for a refund of fees certainly not when, as in this case, the proceedings have been at an end for some time.
[25] Regulation 23(1)(a) makes it clear a pre-requisite to the Registrar reconsidering an application for refund is that first, there was no application for waiver.
[26]If that hurdle is crossed the Registrar must then consider:
(a)whether if an application had been made the fee would have been waived on the basis of the criteria in reg 19, or that the proceedings satisfies one of the criteria in reg 20; and
(b)the criteria that would have justified the waiver (if an application for waiver had been made) still applies at the date of the application for refund.
[27] That wording does not support Mr Rafiq’s argument that there can be successive applications for refund.
[28] The applications are also an abuse of process on the basis that the Court had earlier directed that the Registrar was not to accept further documents from Mr Rafiq on the file. In an attempt to avoid the consequences of that order, Mr Rafiq issued a different set of proceedings in CIV-2014-404-1385 in which he named the Attorney- General as defendant and sought a refund of the very same filing fees. Rule 15.4
confirms that this Court retains inherent jurisdiction to stay or strike out a proceeding where the Court is satisfied it is an abuse of process.6
The fees paid in the Rafiq v APN NZ Ltd, CIV-2013-404-0305 file
[29] In 2013 Mr Rafiq sought a refund of the fees paid on this file. The Registrar declined the application. Mr Rafiq’s application to review the Registrar’s decision was also dismissed by this Court on 30 October 2013 in a separate judgment.7
[30] Mr Rafiq then applied a second time for a refund for filing fees paid in the proceedings. In the same judgment delivered on 17 December 2013 referred to above this Court dismissed the application on this file for a second time.8 As noted, in that judgment the Court made the order that “The Registrar is directed not to accept any more documents from Mr Rafiq on these files”.
[31] For the reasons given above in relation to the proceedings in CIV-2013-404- 02 and CIV-2013-404-1717 Mr Rafiq’s current attempt to pursue recovery of the fees paid is an abuse of process.
General discretion re extension of time
[32] Even if there was jurisdiction to consider Mr Rafiq’s applications to review the Registrar’s decisions out of time, the Court would not grant an extension in this case. The current proceeding is significantly out of time, as it was not issued until 24 February 2023. The original decisions were made in 2013.
[33] The following considerations are relevant to the exercise of the discretion on an application for extension.9
6 Siemer v Stiassny [2011] NZCA 1.
7 Rafiq v APN NZ Ltd [2013] NZHC 2861.
8 Re Rafiq, above n 4.
9 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
Length of the delay
[34] In this case there has been a considerable delay approaching 10 years. While the Regulations do not provide a time within which the request for waiver or refund is to be made, as noted, the Regulation requires the Court on a refund application to have regard to whether the fee would have been waived if an application for waiver was made, and also to consider if the criteria still applied at the time of the application for refund. Phrased in that way the Regulation must be interpreted to contemplate that any application for refund will be made promptly. That is supported by the fact that s 160 provides for the application for review of the Registrar’s decision to be made within 20 working days.
Reasons for the delay
[35] There is no convincing or compelling reason advanced by Mr Rafiq for the delay.
Conduct of the applicant
[36] The plaintiff has acted in breach of the directions of the Court and has burdened the Court with unmeritorious applications for review.
Significance of issues raised
[37] There are no issues of significance raised. The Regulations and s 160 of the Senior Courts Act are clear in their terms.
General considerations
[38] The merits of the application do not support the grant of further time. As the Supreme Court confirmed in Almond v Read the ultimate question is what the interests of justice require.10 In this case the interests of justice require the principle of finality to be affirmed.11
10 Almond v Read, above n 9.
11 R v Smith [2003] 3 NZLR 617.
District Court CIV-2018-094-647
[39] Mr Rafiq also seeks leave to commence proceedings in relation to the fees paid which relate to a Disputes Tribunal proceeding. There is no power to waive or refund fees paid in relation to Dispute Tribunal matters. The Disputes Tribunal is a division of the District Court established by its own Act. A claim is made in the Disputes Tribunal by filing a claim in the prescribed form and payment of the prescribed fee.12 The fees are prescribed by the Disputes Tribunal Rules 1989 (rule 5). There is no provision in the Rules or the applicable Act for a refund or waiver of the fees.
[40]The purported claim to recover the fees discloses no reasonable cause of action.
Result
[41] For the above reasons Mr Rafiq’s application for leave to commence proceedings to recover the fees paid to both the High Court Registry and the District Court in relation to the Disputes Tribunal matter is dismissed. The purported proceedings do not disclose a reasonably arguable cause of action and are otherwise an abuse of process.
Costs
[42] The defendants are entitled to costs which I fix on a 2B basis, together with any disbursements as fixed by the Registrar.
Venning J
12 Disputes Tribunal Act 1988, s 24.
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