Rafiq v Secretary for Internal Affairs

[2023] NZHC 23

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-0053

[2023] NZHC 23

UNDER

the Limitation Act 2010

IN THE MATTER

of an application for leave to commence defamation proceedings out of time

BETWEEN

RAZDAN RAFIQ

Plaintiff

AND

SECRETARY FOR INTERNAL AFFAIRS and CHIEF EXECUTIVE FOR

DEPARTMENT OF INTERNAL AFFAIRS

Defendant

Hearing:	On the papers
Date of judgment:	24 January 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 24 January 2023 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copy to:

R Rafiq, Auckland

RAFIQ v SECRETARY FOR INTERNAL AFFAIRS [2023] NZHC 23 [24 January 2023]

[1]                 Under r 5.35A(3)(a) of the High Court Rules 2016, the Registrar referred this proceeding to me as duty judge, for consideration if “plainly an abuse of the process of the court”.1 An ‘abuse of the process of the court’ is “improper use of [the court’s] machinery”;2 use of that process “for a purpose or in a way significantly different from its ordinary and proper use”.3

[2]                 Mr Rafiq’s 4 January 2023 application seeks leave belatedly to commence defamation proceedings to obtain retraction of and some $2,000,000 damages in relation to Internal Affairs’ correspondence dated 2016 and 2017. Time limitation is an available defence,4 not open to being avoided by a prefatory grant of leave. As improper use of the court’s machinery, for a significantly different purpose than intended, I am satisfied the proceeding is plainly an abuse of the process of the court.

[3]                 Under rr 5.35B(1(a) and 15.1, I order the proceeding struck out. Because my order is made without giving Mr Rafiq an opportunity to be heard, he has the right to appeal against my decision.5

—Jagose J

1      High Court Rules 2016, r 5.35B(1).

2      Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London 1996) at [10.15] as cited in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87].

3      Attorney-General v Barker [2000] 1 FLR 759 (QBD) at 764.

4      Limitation Act 2010, s 11.

5      High Court Rules, r 5.35B(3).