Rafiq v Secretary for the Department of Internal Affairs of New Zealand

IN THE COURT OF APPEAL OF NEW ZEALAND

CA445/2014
[2014] NZCA 518

BETWEEN	RAZDAN RAFIQ Appellant
AND	THE SECRETARY FOR THE DEPARTMENT OF INTERNAL AFFAIRS OF NEW ZEALAND First Respondent
AND	THE DIRECTOR OF THE CIVIL AVIATION AUTHORITY OF NEW ZEALAND Second Respondent
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Third Respondent
AND	THE COMMISSIONER OF NEW ZEALAND POLICE Fourth Respondent
AND	THE ATTORNEY-GENERAL OF NEW ZEALAND Fifth Respondent

Counsel:

Appellant in person
A R Longdill and O Klaassen for Respondents

Judgment:

(On the papers)

29 October 2014 at 10 am

JUDGMENT OF HARRISON J
(Review of Registrar’s Decision and Stay Application)

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
BThe application for stay is dismissed.
BThe appellant is to pay the sum of $5,880.00 by way of security for costs on or before 10 November 2014.

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REASONS

On 13 August 2014 the appellant, Razdan Rafiq, pre-emptively applied to review a decision made by the Registrar on 6 October, declining his application to dispense with security for costs on this appeal against strike-out in Rafiq v Secretary for Department of Internal Affairs of New Zealand.[1] She directed the security be set at $5,880.00 and be paid on or before 3 November 2014.
[1]Rafiq v Secretary for Department of Internal Affairs of New Zealand HC Auckland CIV-2014-404-1385, 5 August 2014 (Minute of Venning J).
Mr Rafiq has no right to apply for a review of the Registrar’s decision before that decision has been made, but to avoid further inconvenience to the Registry from the inevitability of a fresh challenge to the decision on the same grounds as now advanced I am prepared to consider the documents filed by Mr Rafiq as an application to review the decision subsequently made.
The Registrar properly considered that security for costs should not be dispensed with if a reasonable and solvent litigant would not proceed with the appeal, having regard to the benefits of bringing the appeal weighed against the costs. She was entitled to consider the sheer volume of unmeritorious proceedings brought by Mr Rafiq as well as an email sent by him and recorded by another Judge presiding over other litigation brought by him, that Mr Rafiq’s efforts are an abuse of procedure brought to vex and harass the various respondents. The Registrar properly concluded it would not be right to require the various respondents in this appeal to defend the judgment under challenge without the usual protection as to costs provided by security.[2]
[2]Reekie v Attorney-General [2014] NZSC 63 at [31].
She could have added that there are no exceptional circumstances justifying dispensation in this case. Impecuniosity does not suffice. Furthermore, this appeal does not raise an issue of public importance or significance.
Mr Rafiq also made a pre-emptive application for a stay of the substantive appeal in this Court pending his appeal from the present review decision to the Supreme Court. It is neither practical nor appropriate that three Judges of this Court consider the stay application and so I consider it alone.[3] These well-settled factors are decisive against granting the stay:[4] (a) the appeal will not be rendered nugatory by the lack of a stay; (b) Mr Rafiq’s appeal does not appear to be in good faith; (c) the questions involved are not novel or important; (d) there is not any public interest in the proceeding; and (e) the appeal has no apparent merit.
[3]Pursuant to rr 7(1) and 12 of the Court of Appeal (Civil) Rules 2005.
[4]Recently summarised in Yan v Mainzeal Property and Construction Ltd (in rec and liq) [2014] NZCA 86 at [25].
Mr Rafiq’s applications to review the Registrar’s decision and for a stay are dismissed. Mr Rafiq must pay the sum of $5,880.00 by way of security for costs on or before 10 November 2014.

Solicitors:
Meredith Connell, Auckland for Respondent

In the Court of Appeal of New Zealand, the case of Rafiq v Secretary for the Department of Internal Affairs of New Zealand was heard and decided. The appellant, Razdan Rafiq, challenged a decision made by the Registrar regarding the amount of security for costs required to proceed with an appeal against a strike-out order. The respondents included the Secretary for the Department of Internal Affairs of New Zealand and several other government officials and entities.

The legal issues before the court were twofold: whether the Registrar’s decision to require security for costs was correct, and whether a stay of the substantive appeal should be granted pending the appeal of the Registrar’s decision. The court had to consider whether the appellant had a valid reason to avoid paying security for costs, and whether the appeal had any merit or public importance.

The Court of Appeal dismissed both the application to review the Registrar’s decision and the application for a stay. The court found that the Registrar had properly exercised her discretion in requiring security for costs, considering the appellant's history of bringing unmeritorious claims. The court also determined that the appeal did not meet the criteria for a stay, as it lacked good faith, did not involve novel or significant questions, and had no apparent merit. The appellant was ordered to pay the specified amount of security for costs within the given timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established