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Rafiq v Whata

Rafiq v Whata

Case [2019] NZHC 1193 29 May 2019

Civil Litigation & Procedure

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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 Defendant

MOTOR VEHICLE DISPUTES TRIBUNAL

Third Defendant

THE DEPARTMENT OF INTERNAL AFFAIRS OF NZ
Fourth Defendant

NEW 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rafiq v Whata

Details

AGLC: Rafiq v Whata [2019] NZHC 1193
Case: [2019] NZHC 1193
Decision Date: 29 May 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Razdan Rafiq, a vexatious litigant, sought leave to commence proceedings against several defendants, including a judge, the Court, a tribunal, and government entities. The application arose from a declared vexatious litigant's attempt to circumvent a prior order restricting him from instituting civil proceedings without leave. The court had to decide whether orders made under the repealed Judicature Act 1908, which imposed no time limits, would now be subject to the maximum periods provided under the Senior Courts Act 2016. The court concluded that the transitional provisions of the Senior Courts Act applied to orders made under the Judicature Act, meaning that the orders would now be subject to the time limits specified in the Senior Courts Act. Consequently, the order against Mr Rafiq would cease to restrict the bringing of proceedings without leave on 28 February 2022. The application for leave to commence proceedings was dismissed as frivolous and vexatious.

Final orders:
1. The application for leave to commence proceedings is dismissed.
2. 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.

Orders