Rafiq v Yahoo! New Zealand Limited

[2015] NZHC 97

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1893 [2015] NZHC 97

BETWEEN	RAZDAN RAFIQ Plaintiff
AND	YAHOO! NEW ZEALAND LIMITED Defendant

Hearing:	On the papers
Counsel:	Plaintiff in person W Akel and B Thomson for the Defendant
Judgment:	9 February 2015

JUDGMENT OF ELLIS J

This judgment was delivered by me on 9 February 2015 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:

W Akel, Simpson Grierson, Auckland

B Thomson, Simpson Grierson, Auckland

RAFIQ v YAHOO! NEW ZEALAND LIMITED [2015] NZHC 97 [9 February 2015]

[1]      Further to the decisions  in this matter dated 25 November 2014  and  12

December 2014, Mr Rafiq has filed applications seeking:

(a)       an extension of time to pay the security for costs ordered by Associate

Judge Christiansen and confirmed by Toogood J on those days;

(b)an order that Associate Judge Christiansen recuse himself in relation to these proceedings.

[2]      The applications are opposed.  They were referred to me as duty Judge this week for decision on the papers.

[3]      Both applications are declined.

[4]     As far as the extension of time is concerned, neither Associate Judge Christiansen’s judgment nor Toogood J’s judgment make it clear what the consequence of failure to pay security in time will be.  It is, perhaps, implicit that the proceeding is stayed if timely payment is not made but I am unsure about that.  In any event, such a stay is not irreversible; payment of the security ordered would ordinarily reactivate the proceedings, even if made late.   Unless and until an application to dismiss the proceeding is made by the defendant for non-compliance I do not regard Mr Rafiq as being unduly prejudiced.  The matters referred to in the documents filed by the defendant (namely the absence of grounds given for the extension of time sought, Mr Rafiq’s history in relation to security issues and prejudice to the defendant) all support the same conclusion.

[5]      As far as recusal is concerned it is not open to me to make an order recusing another Judge of this court.  Any issue in that respect is a matter for Associate Judge Christiansen in the event he is subsequently required again to deal with these proceedings. Any future refusal by him to do so could, I suppose, be the subject of a

further application for review or appeal.  And in any event, Toogood J’s judgment

makes it clear that the bases upon which recusal is sought have no merit.

Rebecca Ellis J