Rafiq v Secretary for Internal Affairs and Chief Executive for Internal Affairs

[2022] NZHC 1520

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-00355

[2022] NZHC 1520

BETWEEN

RAZDAN RAFIQ

Plaintiff

AND

SECRETARY FOR INTERNAL AFFAIRS AND CHIEF EXECUTIVE FOR INTERNAL AFFAIRS

First Defendant

MINISTER OF INTERNAL AFFAIRS

Second Defendant

CIV 2022-404-00365

BETWEEN

RAZDAN RAFIQ
Plaintiff

AND

AUCKLAND INTERNATIONAL AIRPORT LIMITED

First Defendant

THE COMMISSIONER OF NEW ZEALAND POLICE

Second Defendant

Hearing:	On the papers
Judgment:	29 June 2022

JUDGMENT OF DUFFY J

This judgment was delivered by me on 29 June 2022 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

RAFIQ v SECRETARY FOR INTERNAL AFFAIRS & ORS [2022] NZHC 1520 [29 June 2022]

[1]                   Mr Rafiq was the subject of a civil restraint (vexatious litigant) order which expired on 28 February 2022. He now seeks to file two proceedings in this Court. The Registry has accepted his documents for filing and referred them to me for under r 5.35A for directions.

[2]                   The power of a Judge to make orders and give directions before service is contained in the High Court Rules 2016, r 5.35B. This rule provides:

(1)  This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(2)    The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—

(a)  the proceeding be struck out:

(b)  the proceeding be stayed until further order:

(c)  documents for service be kept by the court and not be served until the stay is lifted:

(d)  no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

(3)   Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4)  A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)  See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

[3]                   If I am satisfied the proceedings are an abuse of process, I may make an order or direction to dispose of the proceedings. This includes the jurisdiction to strike out Mr Rafiq’s proceedings under subr 2(a). He does not have a right to be heard, but he will have a right to appeal. I must advise him of this right as per subr (3).

[4]                   In Mathiesen v Fildes,1 Associate Judge Osborne applied a two-pronged test for strike-out under this rule:

(a)Whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)Whether right-thinking people would regard this Court as exercising very poor control of its processes if it were to allow the applicant’s document to be regarded as a proper document.

This test was followed by Whata J in Mathisen v Slevin2 and Cooke J in Moananui v Prime Minister.3

[5]The power to strike out has been exercised on numerous occasions, including:

(a)In Faloon v Planning Tribunal at Wellington,4 the Court of Appeal upheld Dobson J’s decision to strike out Mr Faloon’s proceedings under r 5.35B (and impose a limited civil restraint order under Senior Courts Act 2016, s 166). The Court of Appeal set out some basic rules to maintain order and held that the proceeding offended against the principle of finality and the rule in Henderson v Henderson5 (that claims should not be raised piecemeal).

(b)In Carter v Capital and Coast District Health Board,6 Churchman J struck out an application under s 84 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 for failing to comply with Part 18 of the Rules.

1      Mathiesen (Trustees of Sweet Pea Family Trust v Fildes [2017] NZHC 2258 at [7].

2      Mathiesen v Slevin [2018] NZHC 1032.

3      Moananui v Prime Minister [2021] NZHC 1156.

4      Faloon v Planning Tribunal at Wellington [2020] NZCA 170; leave to appeal dismissed Faloon v Planning Tribunal [2020] NZSC 124.

5      Henderson v Henderson (1843) 67 ER 313 (Ch).

6      Carter v Capital and Coast District Health Board [2017] NZHC 2398.

(c)In Niwa  v  Commissioner  of  Inland  Revenue,7  Ellis J  struck  out  Mr Niwa’s pleadings on the basis it was a “sovereign citizen” type claim that had no basis in law.

(d)In Smith v Māori Land Court,8 Churchman J struck out Mr Smith’s proceedings for improperly challenging earlier Court decisions.

(e)In Tomar v High Court in Auckland,9 Jagose J stated that an abuse is “improper use of [the court’s] machinery”; use of that process “for a purpose or in a way significantly different from its ordinary and proper use”. In this case a judicial review against the High Court was an abuse of process as appeal was the proper recourse.

[6]                   Here, proceeding Rafiq v Auckland International Airport Limited CIV-2022- 404-00365 is a claim purportedly brought under the New Zealand Bill of Rights Act 1990 (NZBORA) regarding Mr Rafiq being issued with a trespass notice in relation to him being in a carpark owned by Auckland International Airport Limited. He claims Auckland International Airport Ltd breached his rights by:

(a)trespassing him in breach of s 18 of NZBORA and detaining and questioning him in breach of 23 NZBORA;

(b)unreasonably holding a handgun and patrolling the car park to vex and harass him;

(c)breaching Civil Aviation Act 1990 by operating outside the airport and by forming Sky Gate Security Department.

[7]                   The claim also alleges the Commissioner of Police, through the conduct of police officers who attended the issue of the trespass notice, breached s 18 of NZBORA and further that New Zealand Police “failed to investigate” his concerns.

7      Niwa v Commissioner of Inland Revenue [2019] NZHC 853.

8      Smith v Māori Land Court [2022] NZHC 1028.

9      Tomar v High Court in Auckland [2021] NZHC 2134.

[8]                   I have carefully considered Mr Rafiq’s statement of claim. I am satisfied it discloses no reasonable cause of action against Auckland International Airport. Auckland International Airport is entitled to trespass persons from its carparks as they are its private property. It has no obligation under NZBORA in this regard. No cause of action arises from the security guards “holding a handgun” and/or “patrolling”. Mr Rafiq has no standing under the Civil Aviation Act 1990.

[9]                   There is nothing in the pleading that suggests a cause of action against the police properly arises. If Mr Rafiq desires to review police action this should be properly pleaded as a judicial review but in any event I see nothing that would support a judicial review claim. Mr Rafiq’s grievance appears to be more appropriately directed to the Independent Police Conduct Authority.

[10]               I am satisfied this proceeding is plainly an abuse of process. Similarly the interlocutory application for summary judgment on this claim is entirely vexatious and plainly an abuse of process.

[11]               I consider the two-pronged test in Mathiesen v Fildes is met. It would be manifestly unfair for the respondents to have to respond to such a meritless and vexatious case, and right-thinking people would regard this Court as exercising very poor control of its processes if it were to allow the applicants’ document to be regarded as a proper document for filing. Accordingly, this proceeding is struck out.

[12]               The second proceeding, Rafiq v Secretary for Internal Affairs CIV-2022-404- 00355 is a judicial review of a decision not to grant Mr Rafiq New Zealand citizenship and providing reasons for the refusal. Mr Rafiq seeks relief including an order for the certificate granting him New Zealand citizenship and $50 million exemplary damages.

[13]               This proceeding is poorly pleaded. However, at its core is a claim that the Secretary for Internal Affairs is acting unlawfully by refusing to grant Mr Rafiq  New Zealand citizenship based on, inter alia, this Court declaring Mr Rafiq to be a vexatious litigant.10 Mr Rafiq contends that the vexatious litigant order caused him to fail the good character test for New Zealand citizenship.

10     Attorney-General v Rafiq [2015] NZHC 1153.

[14]               In 2017 Mr Rafiq appealed out of time against the vexatious litigant order. In 2018 the Court of Appeal declined to extend time to appeal.11 However, in doing so the Court of Appeal observed that if the vexatious litigant order was prejudicing    Mr Rafiq’s application for citizenship he could seek leave to judicially review the New Zealand Government alleging that reliance on his vexatious status was not lawful.12 The Court of Appeal opined that it was difficult to see how proceedings responsibly brought would fail to obtain the necessary leave.

[15]               The vexatious order this Court made against Mr Rafiq has now expired. He does not require leave to bring judicial review proceedings. Those proceedings were referred to me pursuant to r 5.35A because of their form. They do not easily fit the description of “proceedings responsibly brought.” However, the essence of the complaint of unlawfulness on the part of the Secretary for Internal Affairs is readily discernible. I consider this proceeding is capable of going to hearing and it is not plainly an abuse of process. It should be accepted by the registry for filing on payment of the filing fee.

Order

[16]               Pursuant to r 5.35B(2)(a) High Court Rules, proceeding Rafiq v Auckland International Airport Limited CIV-2022-404-00365 is struck out.

[17]Mr Rafiq is informed he has a right to appeal against this decision.

[18]               Pursuant to r 5.35B(4) a copy of this decision is to be served upon the respondents in proceeding Rafiq v Auckland International Airport Limited CIV-2022- 404-00365 as soon as practicable.

[19]               Rafiq v Security for Internal Affairs CIV-2022-404-00355 is to be accepted for filing by the registry on payment of the filing fee and processed in the ordinary way.

Duffy J

11     Rafiq v Attorney-General [2018] NZCA 292.

12 At [19].