Rafiq v Whata
[2019] NZHC 1193
•29 May 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-000934
[2019] NZHC 1193
UNDER The Senior Courts Act 2016 IN THE MATTER
of an application for leave to commence proceedings
BETWEEN
RAZDAN RAFIQ
Plaintiff
AND
WHATA J
First Defendant
AUCKLAND HIGH COURT
Second DefendantMOTOR VEHICLE DISPUTES TRIBUNAL
Third Defendant
THE DEPARTMENT OF INTERNAL AFFAIRS OF NZ
Fourth DefendantNEW ZEALAND GOVERNMENT
Fifth Defendant
Hearing: On the papers Judgment:
29 May 2019
JUDGMENT OF VENNING J
Application for leave
This judgment was delivered by me on 29 May 2019 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Copy to: R Rafiq
RAFIQ v WHATA J [2019] NZHC 1193 [29 May 2019]
Introduction
[1] Razdan Rafiq is a vexatious litigant. On 27 May 2015 Wylie J made an order under s 88B of the Judicature Act 1908 (JA) that Mr Rafiq was not to institute civil proceedings in any court without leave. Mr Rafiq did not oppose the order. Indeed, he invited the Court to make it. Mr Rafiq wanted the order to be made so that he could immediately file an application for leave to commence proceedings.
[2] Mr Rafiq has been as good as his word. Since being declared a vexatious litigant he has made numerous applications to the Court for leave to commence proceedings. This year alone Mr Rafiq has already made 13 applications for leave. All have been dismissed as the proposed proceedings were frivolous and vexatious. This is his fourteenth application this year. It also is frivolous and vexatious.
[3] Mr Rafiq’s application does however provide an opportunity for the Court to deliver a judgment on the status of orders made under s 88B of the JA given the repeal of that Act and its replacement with the Senior Courts Act 2016 (SCA). The issue is whether orders made under s 88B of the JA unlimited as to time, will now be subject to the maximum period provided for under the relevant provisions of the SCA.
The statutory framework
[4]Section 88B of the JA provided:
88B Restriction on institution of vexatious actions
(1)If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave.
[5] Section 88B was broad in scope and left the terms of the order to the discretion of the Court.
[6] The relevant provisions under the SCA are ss 166–168. They are somewhat more nuanced:
166Judge may make order restricting commencement or continuation of proceeding
(1)A Judge of the High Court may make an order restricting a person from commencing or continuing a civil proceeding.
(2)The order may have—
(a)a limited effect (a limited order); or
(b)an extended effect (an extended order); or
(c)a general effect (a general order).
(3)A limited order restrains a party from commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal.
(4)An extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal.
(5)A general order restrains a party from commencing or continuing civil proceedings in a senior court, another court, or a tribunal.
(6)Nothing in this section limits the court’s inherent power to control its own proceedings.
167Grounds for making section 166 order
(1)A Judge may make a limited order under section 166 if, in civil proceedings about the same matter in any court or tribunal, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.
(2)A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(3)A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(4)In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.
(5)The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
(6)For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
168Terms of section 166 order
(1)An order made under section 166 may restrain a party from commencing or continuing any proceeding (whether generally or against any particular person or persons) of any type specified in the order without first obtaining the leave of the High Court.
(2)An order made under section 166, whether limited, extended, or general, has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period.
[7] An application for an order under s 88B could only be made by the Attorney- General. While only the Attorney-General may apply for a general order under the SCA a party to a proceeding may apply for a limited or extended order. Further, under the SCA provisions a Judge may make any order, including a general order on his or her own initiative.1
The transitional provision
[8] The issue arises from the wording of the transitional provisions in sch 5, cl 10(2) of the SCA which provides:
10 Proceedings, etc, continue under relevant Act
(2) All jurisdictions, offices, appointments, Orders in Council, orders, warrants, rules, regulations, seals, forms, books, records, instruments, and generally all acts of authority that originated under the relevant Act or another enactment continued or repealed by this Act, and that are subsisting or in force on the commencement of this clause, have full effect as if they had originated under the corresponding provisions of this Act and, where necessary, must be treated as having originated under this Act.
[9] Does the transitional provision apply and require orders under s 88B to be treated as having originated under the SCA and thus subject to the time limits in s 168 SCA?
1 Senior Courts Act 2016, s 169(3)
The competing contentions
[10] The first argument is that the transitional provisions of the SCA do not apply to orders made under s 88B of the JA. The orders continue in effect in accordance with the provisions of the Interpretation Act 1999 so that banning orders made under s 88B of the JA are unaffected by the transitional provisions of the SCA and will not expire.
[11] The contrary argument is that the transitional provisions of the SCA apply to orders made under s 88B of the JA so that they will now only have effect for a limited time in terms of those sections.
Section 88B orders continue in full force
[12] The argument that orders made under s 88B are not covered by the transitional provisions of the SCA proceeds on the basis that the s 88B provisions have no corresponding provisions under the SCA for the purposes of cl 10, sch 5. Sections 166–168 of the SCA provide for a scheme in which three tiers of orders can be made; limited, extended, and general. Each operates within a clearly defined scope. By contrast, orders under s 88B are general in scope. Their limit is prescribed by the Court in the exercise of its discretion.
[13] Next, an application under s 88B can only be made by the Attorney-General. Applications for a limited or extended order under s 166 may be made by a party to any proceeding. While only the Attorney-General may apply for a general order (similar to s 88B), a Judge of the High Court may make any one of the orders on his or her own initiative including a general order. The processes are quite different.
[14] Further, subjecting s 88B orders to the time limits imposed by s 168 when no such provision was included in the JA would be to modify the terms of an existing Court order, relying solely on Parliament’s implied meaning. If Parliament had intended a substantive modification of the terms of s 88B orders, it would have done so expressly and not have used an implication in a transitional provision. The wording in sch 5, cl 10 does not go as far as deeming orders made under s 88B to have been
made under s 166 and thus subject to s 168, which would have more clearly demonstrated such an intention.
[15] Next, there is no need to rely on cl 10(2) of sch 5 to preserve the efficacy of an order made under s 88B. Section 17(1) of the Interpretation Act 1999 provides for the order to continue in effect in accordance with its terms:
17 Effect of repeal generally
(1)The repeal of an enactment does not affect—
(a)the validity, invalidity, effect, or consequences of anything done or suffered:
(b)…
(c)an existing status or capacity:
(d)…
(e)the previous operation of the enactment or anything done or suffered under it.
[16] Given the provisions of the Interpretation Act it is arguably not “necessary”, in terms of cl 10(2) of sch 5, to treat the s 88B orders as having originated under the SCA.
The SCA applies to s 88B orders
[17] The contrary argument is that the transitional provisions in sch 5, cl 10(2) apply so that s 88B banning orders must now be treated as having originated under s 166 of the SCA with the effect that the time limit under s 168 applies.
[18] I note that is the approach that two Judges of this Court have already taken, albeit without referring to the contrary argument: Siemer v Ministry of Justice2 and an earlier case on one of Mr Rafiq’s applications in 2018: Rafiq v Auckland Transport.3 In the Siemer case Peters J accepted ss 166 to 169 were equivalent to what was s 88B.
[19] There would also be a degree of arbitrariness if banning orders made under s 88B JA were to continue in effect indefinitely while orders intended to have the same
2 Siemer v Ministry of Justice [2018] NZHC 646.
3 Rafiq v Auckland Transport [2018] NZHC 907
effect under the SCA are time limited. If the transitional provisions in sch 5, cl 10 SCA apply then that arbitrariness is removed.
[20] The purpose of the Judicature Modernisation Bill, from which the Senior Courts Bill was divided, was said to introduce the graduated system of orders to provide “more flexibility than the one currently available order”.4 While it could be said that Parliament did not turn its mind to the exact question of how s 88B banning orders were to be treated in light of the new provisions under the SCA, it would be more consistent with Parliament’s intent and the overall scheme of the statute to treat such orders as having been intended to conform to the time-limited nature of the s 166 scheme.
[21]As the Supreme Court has said in relation to statutory interpretation:5
The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5.
[22] The Law Commission recommended s 88B be replaced in its paper: Review of the Judicature Act 1908: Towards a New Courts Act. The Commission said:6
The Commission considers that New Zealand should introduce a graduated system of orders for restraining vexatious civil proceedings. In our view, the top tier of this system should incorporate the key features of section 88B and, on that basis, the existing provision should not be re-enacted in new courts legislation.
[23] The Commission also considered that a time limit for an order should be provided for, or at the very least the vexatious litigant should be able to apply to the Court for amendment or discharge of the order. The Commission noted that in the United Kingdom there were time limits to the operation of civil restraint orders. In the United Kingdom extended and general orders must not be made for more than two years at any one time. The Commission’s view supports the argument that ss 166–168 are intended to be corresponding provisions to s 88B.
4 Judicature Modernisation Bill 2013 (178–1) (explanatory note) at 2.
5 Commerce Commission v Fonterra Co-Operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22].
6 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R 126, 2012) at [16.10].
Discussion
[24] While both arguments have their merit, adopting a purposive interpretation, by way of a “cross-check”, to the provisions of the SCA supports the conclusion that the transitional provisions apply to s 88B orders, despite the infelicitous nature of aspects of the wording of the transitional provisions. It appears reasonably clear that Parliament’s intention was to replace the absolute scheme, which operated under the JA in relation to orders under s 88B, with a more flexible and adaptive scheme. The introduction of more limited, and conditional, orders can be understood as having been intended to incentivise vexatious litigants, during their stand down period, to reform their behaviour.
[25] While the terms of the orders under s 166 do not correspond exactly with s 88B the practical effect is the same.
[26] That leads to the conclusion that Parliament intended not only to confirm the validity of orders made under s 88B (which is otherwise addressed by the provisions of the Interpretation Act) but also intended to adopt a phased transition so that eventually all s 88B banning orders would run their course. Those subject to the orders would at that point be able to again have unrestricted access to the courts.
[27] The provisions of the New Zealand Bill of Rights Act 1990 (Bill of Rights) support the purposive approach. While the Court has confirmed that orders under s 88B are justified limitations on the right to justice and s 27(2) is not capable of overriding s 88B,7 an interpretation limiting the length of time a litigant is banned is more consistent with the right under s 27(2) of the Bill of Rights.
[28] For those reasons I conclude that the transitional provisions of the SCA apply to orders made under s 88B.
7 Attorney-General v Hill (1993) 7 PRNZ 20 (HC) at 22; and Brogden v Attorney-General [2001] NZAR 809 (CA).
If the SCA provisions apply, what is to be the term?
[29] That then leads to a related question. When are the unlimited banning orders made under s 88B to cease to have effect? Under s 168(2) of the SCA orders made under s 166 have effect for not in excess of three years unless a Judge making the order specifies a longer period (which may not be in excess of five years).
[30] For a Judge to impose the order for a period of more than three years under s 166, the Judge must be satisfied that exceptional circumstances mean that longer period is necessary. No such threshold test existed under s 88B. The provision was instead silent as to the question; allowing the Court to make orders of either definite or indefinite effect. There is an argument, therefore, that s 88B orders should now be held to be effect for only three years at the most, the longest period available under the default position in s 168(2), as no Judge considering an application position under s 88B would have turned their mind to the factors now mandated by s 168(2).
[31] However, if a Judge, considering an application by the Attorney-General under s 88B for a lifetime ban, was satisfied that an indefinite rather than definite order was warranted, it can be inferred the circumstances prompting the application were such that the exceptionality threshold now in place under s 168(2) could have been satisfied. It was open for the Court to make orders for less than a lifetime ban. It follows that an order made as a lifetime ban on the application of the Attorney-General under s 88B is most consistent with the exceptional circumstances requirement under s 168(2) which would justify a general order and the five year ban.
[32] While s 166 orders take effect and time begins to run from the date they are made, a different conclusion is obviously required in respect of the existing s 88B banning orders which are governed by the transitional scheme.
[33] Parliament could not sensibly have intended that s 88B banning orders made before the commencement of the corresponding provision of the SCA would be treated as having been made under a statute not yet in force. There is no support for such retrospectivity,8 nor is there any logical support for such a proposition.
8 Interpretation Act 1997, ss 4(1) and 7.
[34] The general intent of transitional provisions was described by the Court of Appeal in Hilder v Port Otago Ltd as evincing:9
the legislature’s desire to avoid the retrospective operation of legislation and ensure the activities of citizens are governed by the law which is current at the time. The interests of persons with existing rights, powers and privileges are thereby protected.
[35]In Sutcliffe v Tarr the Court of Appeal referred to its previous statement in
Hilder when dealing with issues arising from the transition between JA and the SCA.10
[36] Bearing in mind these statements, a more consistent and logical interpretation which accords with the usual presumption against retroactivity yet is also consistent with the purpose of sch 5, cl 10(2) is to treat time as running on the duration of s 88B orders under the SCA from the date on which the corresponding provision of the SCA commenced. That date was 1 March 2017.11 It is also consistent with the wording of the transitional provisions which treats the order as having “originated under this [SCA] Act”.
[37] It follows that the order against Mr Rafiq made under s 88B JA will, in accordance with sch 5, cl 10(2) of the SCA, cease to restrict the bringing of proceedings without leave on 28 February 2022.12
[38] Practically, once the order has lapsed and it is no longer necessary for a vexatious litigant to apply for leave if he or she files an apparently frivolous or vexatious proceeding the provisions of rr 5.35A et seq will apply. If the r 5.35A procedure is followed and the Court declares the proceeding vexatious, then that could be taken into account when considering whether to make another order under s 166. Alternatively, the Court might make an order on the basis of any frivolous or vexatious applications for leave made during the term of the order.13
9 Hilder v Port Otago Ltd [1996] 1 NZLR 289 (CA) at 295.
10 Sutcliffe v Tarr [2017] NZCA 360, [2018] 2 NZLR 92 at [31].
11 Senior Courts Act 2016, s 2(1).
12 Interpretation Act 1999, 35(1).
13 Senior Courts Act 2016, s 167(4) refers to applications.
Present application
[39] Mr Rafiq seeks leave to commence proceedings against a Judge of this Court, the Court itself, the Motor Vehicle Disputes Tribunal, The Department of Internal Affairs of New Zealand, and the New Zealand Government. The proposed statement of claim is abusive and a nonsense. It claims an entirely ridiculous sum of money by way of relief. It also trivialises the incident on 15 March 2019 in Christchurch.
[40]It is plainly frivolous and vexatious. Leave is declined.
[41] The Registrar is to refer the proposed statement of claim to the Police with particular reference to the proposed cause of action against the fifth defendant and the references and pictorial images referred to therein.
Venning J
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