Rafiq v Secretary for Internal Affairs
[2025] NZCA 229
•11 June 2025
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA518/2024 |
| BETWEEN | RAZDAN RAFIQ |
| AND | SECRETARY FOR INTERNAL AFFAIRS AND CHIEF EXECUTIVE, DEPARTMENT OF INTERNAL AFFAIRS |
| CA527/2024 | ||
| BETWEEN | RAZDAN RAFIQ | |
| AND | BAYCORP PDL (NZ) LIMITED | |
| CA556/2024 | ||
| BETWEEN | RAZDAN RAFIQ | |
| AND | SUPERCITY TOWING LIMITED | |
| CA597/2024 | ||
| BETWEEN | RAZDAN RAFIQ | |
| AND | DISPUTES TRIBUNAL AT AUCKLAND | |
| CA624/2024 | ||
| BETWEEN | RAZDAN RAFIQ | |
| AND | BAYCORP PDL (NZ) LIMITED | |
| Court: | Thomas and Woolford JJ |
Counsel: | Applicant in person |
Judgment: | 11 June 2025 at 11.30 am |
JUDGMENT OF THE COURT
AThe applications for a stay in CA518/2024, CA556/2024, CA597/2024 and CA624/2024 are declined.
BThe application for a stay in CA527/2024 is declined for want of jurisdiction. The application for an extension of time in CA527/2024 is declined.
CMr Rafiq is to file submissions addressing whether this Court should strike out CA518/2024, CA556/2024, CA597/2024 and CA624/2024 by 2 July 2025.
DMr Rafiq must pay the second respondent in CA527/2024 costs for a standard application on a band A basis, together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Razdan Rafiq has applied for a stay of five of his proceedings in this Court pending an unspecified appeal to the Supreme Court. Mr Rafiq also seeks an extension of time to appeal one of these proceedings.
The proceedings
On 4 October 2024, Mr Rafiq applied to stay the following appeals.
CA518/2024 — Rafiq v Secretary for Internal Affairs and Chief Executive, Department of Internal Affairs
By way of background, in 2017, the Minister of Internal Affairs declined to grant Mr Rafiq New Zealand citizenship because Mr Rafiq had not satisfied the good character requirement under the Citizenship Act 1977. Mr Rafiq successfully challenged this decision in the High Court. In February 2023, Downs J quashed the decision but dismissed Mr Rafiq’s claim for $2,000,000 including $500,000 in exemplary damages.[1]
[1]Rafiq v Secretary for Internal Affairs and Chief Executive for Department of Internal Affairs [2023] NZHC 127.
On 3 November 2022, Mr Rafiq filed a claim seeking $300,000,000 in damages in respect of the decision declining his citizenship application in 2017. On 25 July 2024, Tahana J struck out this proceeding prior to service as an abuse of process pursuant to r 5.35B(2)(a) of the High Court Rules 2016 (HCR).[2] The Judge considered the statement of claim sought to relitigate claims already determined by Downs J in February 2023 and allowing the claim to proceed would violate the principle that claims cannot be made in instalments.[3]
[2]Rafiq v Secretary for Internal Affairs and Chief Executive for Department of Internal Affairs [2024] NZHC 2043.
[3]At [4].
On 12 August 2024, Mr Rafiq filed an appeal as of right against Tahana J’s decision.[4]
CA527/2024 and CA642/2024 — Rafiq v Baycorp PDL (NZ) Ltd
[4]Senior Courts Act 2016, s 56(4)(a) provides for a right of appeal against any decision of the High Court striking out the whole or part of a proceeding.
Mr Rafiq has three identical proceedings against Baycorp PDL (NZ) Ltd and Latitude Financial Services Ltd. Mr Rafiq seeks a stay in respect of two of them.
CA158/2025 — proceeding one in the High Court
In December 2022, Kiwibank declined Mr Rafiq’s application for a credit card. Mr Rafiq claims the reason for that decision was his credit history as recorded by Baycorp and his having been in default to Latitude in 2018. In 2023, Mr Rafiq brought proceedings against Latitude (first respondent) and Baycorp (second respondent) for damages. He was ordered to pay security for costs and, later, costs.[5] Mr Rafiq did not comply and has instead applied to this Court for an extension of time for leave to appeal against these costs decisions.[6] Mr Rafiq has not applied for a stay of this proceeding but it is relevant to understanding the following two proceedings in respect of which Mr Rafiq seeks a stay.
CA527/2024 — proceeding two in the High Court
[5]Rafiq v Latitude Financial Services Ltd [2023] NZHC 1690; and Rafiq v Latitude Financial Services Ltd [2023] NZHC 1831.
[6]Grice J declined leave to appeal both decisions in Rafiq v Latitude Financial Services Ltd [2024] NZHC 253. The application for an extension of time for leave to appeal is not the subject of this decision.
In 2024, Mr Rafiq brought fresh (but identical) proceedings against Baycorp (now the first respondent) and Latitude (now the second respondent). On 16 July 2024, Associate Judge Brittain was satisfied the 2024 pleadings disclosed no reasonable cause of action and were an abuse of process, so made an order striking out the proceeding in its entirety prior to service pursuant to r 5.35B(2)(a) of the HCR.[7]
[7]Rafiq v Baycorp PDL (NZ) Ltd HC Auckland CIV-2024-404-1143, 16 July 2024 (Minute of Associate Judge Brittain).
Mr Rafiq filed a notice of appeal on 16 August 2024, three days out of time.[8] He subsequently filed an application for an extension of time pursuant to r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules).
CA624/2024 — proceeding three in the High Court
[8]Court of Appeal (Civil) Rules 2005, r 29(1)(a) provides for a 20 working day limit in which to file an appeal.
Mr Rafiq brought another proceeding which, on 3 September 2024, Judge Brittain described as identical to the proceeding in CA527/2024 and so struck it out.[9] The Judge did not refer to it also being a duplicate of the proceeding described above in CA158/2025, although that logically must be the case.
[9]Rafiq v Baycorp PDL (NZ) Ltd HC Auckland CIV-2024-404-1613, 3 September 2024 (Minute of Judge Brittain).
On 20 September 2024, Mr Rafiq filed an appeal as of right.
CA556/2024 — Rafiq v Supercity Towing Ltd
On 27 March 2018, Supercity Towing Ltd towed Mr Rafiq’s vehicle under the Land Transport Act 1998. Mr Rafiq alleged Supercity damaged his vehicle. He unsuccessfully sought damages in the Dispute Tribunal. He then lodged the same claim against Supercity in the High Court and applied for summary judgment. On 13 August 2024, Judge Brittain struck out the proceeding as an abuse of process.[10]
[10]Rafiq v Supercity Towing Ltd HC Auckland CIV-2024-404-655, 13 August 2024 (Minute of Judge Brittain).
On 28 August 2024, Mr Rafiq filed an appeal as of right.
CA597/2024 — Rafiq v Disputes Tribunal at Auckland
Following Mr Rafiq’s unsuccessful Disputes Tribunal claim against Supercity, Mr Rafiq brought proceedings in the High Court against the Tribunal. On 28 August 2024, Lang J struck out the proceeding as an abuse of process under r 5.35B(2)(a) of the HCR.[11] The Judge noted the claim could not possibly succeed as there was no legal basis for it and Disputes Tribunal referees are protected against liability under s 58 of the Disputes Tribunal Act 1988.
[11]Rafiq v Disputes Tribunal at Auckland HC Auckland CIV-2024-404-1726, 28 August 2024 (Minute of Lang J).
On 12 September 2024, Mr Rafiq filed an appeal as of right.
The stay applications
The grounds for a stay in respect of all five applications are identical:
The appellant will appeal to the Supreme Court against the judgment of the court by seeking leave application. The Court may order a stay under this rule on any terms that the Court thinks appropriate pursuant to rule 44A (4) of the Court of Appeal (Civil) Rules 2005. There will be no prejudice if that order sought is granted. On to the contrary if application is declined, then substantial miscarriage of justice will occur and the appeal may become abandoned. The order for stay an appeal should be allowed.
In four of the proceedings, Goddard J directed that respondents were not to be served and were not required to participate in the appeal.[12] Latitude, the second respondent in CA527/2024, filed a brief memorandum on 5 November 2024 consenting to the extension of time application being stayed.[13]
[12]In CA518/2024 by direction on 16 August 2024, in CA556/2024 by direction on 29 August 2024, in CA597/2024 by direction on 13 September 2024, and in CA624/2024 by direction on 24 September 2024.
[13]Latitude did not engage with the jurisdictional issue discussed below.
The applications are purportedly made under r 44A of the Court of Appeal (Civil) Rules 2005, which relevantly provides:
44A Court’s power to strike out or stay appeal
(1)In addition to any express power in these rules to strike out an appeal, the Court may, on an interlocutory application or on its own initiative, make an order striking out or staying an appeal in whole or in part if—
(a)the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge; or
(b)the appellant has failed to prosecute the appeal with due diligence and dispatch; or
(c)the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.
(2)The Court must—
(a)give the appellant 10 working days’ prior notice of its intention to consider making an order under this rule; and
(b)give ancillary directions as to the filing and service of any written submissions.
…
Given its focus on deficiencies in an appeal, r 44A does not contemplate an application for stay being brought by the appellant themselves. Mr Rafiq does not argue that his appeals are frivolous, vexatious or otherwise an abuse of process (and indeed expressly refutes that allegation in his submissions).[14] Mr Rafiq has filed submissions in respect of one proceeding only (CA597/2024) but they do not elucidate his position.
[14]While the requirements in sub (2) are technically not met, those requirements are to ensure that the appellant has sufficient notice of the effect of r 44A and the opportunity to make submissions. They can be of no application when it is the appellant who is applying for the stay.
It is not clear to what Mr Rafiq refers when he says: “The applicant will appeal to the Supreme Court against the judgment of the court by seeking leave application”.
It might be that Mr Rafiq is bringing, or intends to bring, an appeal against a decision of this Court in each of the proceedings in which he has sought a stay.[15] However, there are no decisions of this Court in any of the above proceedings which are capable of being appealed. Alternatively, it might be that Mr Rafiq seeks a stay because he intends instead to apply directly to the Supreme Court for leave to appeal from the five decisions of the High Court which are under appeal in this Court.
[15]Rule 30(2)(a) of the Supreme Court Rules 2004 allows this Court or the Supreme Court to order a stay of the proceeding in which the decision under appeal was given or a stay of the execution of the decision.
Prior to setting down the applications for hearing, Mallon J directed that Mr Rafiq was to clarify the appeal that was proceeding in the Supreme Court. Mr Rafiq did not respond.
The Supreme Court registry has advised this Court that, as at 23 May, Mr Rafiq has no appeal or application before the Supreme Court.[16]
[16]At the time of the hearing on the papers on 5 May 2025, Mr Rafiq’s only outstanding matter before the Supreme Court was an application for leave to appeal against Rafiq v Auckland Transport [2025] NZCA 4. The Supreme Court declined leave to appeal on 7 May: Rafiq v Auckland Transport [2025] NZSC 48.
There is no basis on which to grant a stay under r 44A in respect of the four proceedings CA518/2024, CA556/2024, CA597/2024 and CA624/2024. Mr Rafiq has no proceeding before the Supreme Court. He provides no other grounds for a stay.
CA527/2024 concerns an application for an extension of time to appeal rather than an appeal as of right. Despite Latitude consenting to a stay, this Court has no jurisdiction to grant a stay of an interlocutory application. We therefore turn to address the application for an extension of time.
Extension of time
Mr Rafiq’s application for an extension of time in CA527/2024 is brought pursuant to r 29A of the Rules, which relevantly provides:
29A Extension of time for appealing
(1) If the appeal period prescribed by an enactment or the period prescribed by rule 29(1) or (2) has expired, a party who wishes to appeal may make an interlocutory application for an extension of time in which to appeal.
…
The principles that govern an application for an extension of time were confirmed by the Supreme Court in Almond v Read.[17] The ultimate question is what the interests of justice require in the particular circumstances of the case.[18] Relevant considerations include:[19]
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[17]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].
[18]At [38].
[19]At [38].
The merits of the proposed appeal may also be relevant, but any consideration of the merits must be relatively superficial.[20] There will be some instances in which the merits will be overwhelmed by other factors, such as the length of the delay and prejudice to the respondent, and so will not require consideration.[21]
Grounds
[20]At [39(c)].
[21]At [39(a)].
Mr Rafiq says leave should be granted because:
(a)he forgot the time period in which he could bring the appeal;
(b)he is sick and on a medical benefit;
(c)he had attempted to file these proceedings in a different court;
(d)he was occupied by proceedings in other courts and could not check his mailbox;
(e)he was financially incapable of filing the appeal within time because of constraints with his benefit;
(f)there are merits to the appeal;[22]
(g)there is no major significant delay;
(h)the respondents do not oppose the application (which we note is not correct).
[22]In his notice of appeal he says those grounds are that the Judge failed to grant an extension of time, failed to allocate a hearing fixture date, possessed no jurisdiction or immunity to strike out the proceedings, failed to adjudicate there were strong merits to the claim, did not give weight to the fact it was unlawful to accuse Mr Rafiq of having such debt, did not consider Mr Rafiq was entitled to declaratory and monetary orders, and breached Mr Rafiq’s right to justice and right to be heard. Mr Rafiq also claimed a substantial miscarriage of justice will occur if the appeal is not allowed and it is in the interests of justice for the Court to hear and determine the appeal.
Mr Rafiq also seeks ancillary relief outside the scope of an extension of time application.[23]
Opposition
[23]Including an order that the New Zealand Police answer emergency calls on 111, an order that the Ministry of Justice cancel all fines relating to him and refund any fines paid by cheque, an order that New Zealand Post repair his mailbox, and arrangement for staff at the Auckland High Court to answer a specified email address.
Notwithstanding it has not been served with any documents relating to the proceeding, Latitude has filed a memorandum opposing the application for an extension of time on the grounds:
(a)The application and proposed appeal are an abuse of process and vexatious. The proceedings replicate an extant High Court proceeding between the same parties on the same issues and appear to be an attempt to avoid complying with the security for costs order in that earlier proceeding.
(b)The proposed appeal is “clearly hopeless”. The High Court has considered both the 2023 and 2024 proceedings to disclose no reasonable cause of action, lack merit and be highly unlikely to succeed.
(c)The conduct of Mr Rafiq weighs against exercising the discretion to extend time. He has failed to comply with the Rules and has a history of failing to comply with orders and directions.
(d)Granting an extension of time is not in the interests of justice. It would be unfair to require Latitude Financial Services to respond to Mr Rafiq’s proposed appeal because it is hard to follow and lacks merit.
Analysis
The application for an extension of time is declined.
While the length of the delay is short, Mr Rafiq has not provided any credible reasons for the delay. Mr Rafiq is an experienced litigant who has filed many appeals before this Court. Mr Rafiq’s personal circumstances have not prevented him from filing or progressing his other matters. We regard as implausible his claim that he forgot the time period, or the court, in which to appeal.
The remaining factors in Almond v Read weigh against the application being granted. Mr Rafiq has failed to comply with the Rules and has a history of failing to comply with orders and directions (as evidenced by his failing to respond to Mallon J’s direction mentioned above at [21]). There is no significance to the proposed appeal. The proceedings replicate extant High Court proceedings and disclose no reasonable cause of action. Any extension of time would only serve to prejudice Latitude who would then have to formulate a response to Mr Rafiq’s meritless appeal.
In summary, the interests of justice do not favour an extension of time being granted.
While Latitude did not seek costs on the application, it is appropriate that costs follow the event in the normal way.[24]
Should the proceedings be struck out?
[24]Court of Appeal (Civil) Rules 2005, rr 53A(1)(a), 53G(1) and 53GA. In CA518/2024, CA556/2024, CA597/2024 and CA624/2024 Goddard J directed the respondents were not to be served and were not required to participate in the appeal, so they have not incurred any costs.
As set out above at [18], r 44A allows this Court to consider whether to strike out proceedings. The criteria set in r 44A(1)(c) appear to be met in respect of CA518/2024, CA556/2024, CA597/2024 and CA624/2024.[25] Accordingly, this Court will consider under r 44A whether to strike out these appeals for abuse of process. In accordance with r 44A(2), Mr Rafiq will be given an opportunity to make submissions before this Court makes a decision on whether or not to strike out the proceedings.
Result
[25]As the extension of time has been declined, the proceeding in CA527/2024 is at an end and cannot be struck out.
The applications for a stay in CA518/2024, CA556/2024, CA597/2024 and CA624/2024 are declined.
The application for a stay in CA527/2024 is declined for want of jurisdiction. The application for an extension of time in CA527/2024 is declined.
Mr Rafiq is to file submissions addressing whether this Court should strike out CA518/2024, CA556/2024, CA597/2024 and CA624/2024 by 2 July 2025.
Mr Rafiq must pay the second respondent in CA527/2024 costs for a standard application on a band A basis, together with usual disbursements.
Solicitors:
Frank Porter Co, Auckland for Second Respondent in CA527/2024
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