RAZDAN RAFIQ AND NEW ZEALAND CUSTOMS SERVICE

[2024] NZHC 3473

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002908

[2024] NZHC 3473

BETWEEN

RAZDAN RAFIQ

Plaintiff

AND

NEW ZEALAND CUSTOMS SERVICE

Defendant

CIV-2023-404-003024

BETWEEN

RAZDAN RAFIQ
Applicant

AND

NEW ZEALAND CUSTOMS SERVICE

Respondent

Hearing:

18 September 2024

Appearances:

Razdan Rafiq in person

S J Smith and J B Y Cheng for New Zealand Customs Service

Judgment:

20 November 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 20 November 2024 at 11.30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington

RAFIQ v NEW ZEALAND CUSTOMS SERVICE [2024] NZHC 3473 [20 November 2024]

Introduction

[1]    Mr Rafiq has commenced two proceedings against the New Zealand Customs Service (NZCS). The first is CIV-2023-404-002908 (the 2908 proceeding). The statement of claim, in respect of which there is an application for summary judgment, refers to information (the information) about Mr Rafiq held by NZCS and makes allegations of unlawfulness and breach of rights. Mr Rafiq seeks (among other remedies):

(i)$50,000,000 in general and/or compensatory damages for “an interference with his privacy affairs”, and

(ii)$40,000,000 for “significant injury to the feelings, stress, distress, anguish and aggrieved the plaintiff [sic]”, and

(iii)$30,000,000 in exemplary and/or punitive damages because of “flagrant disregards to his rights”.

[2]    The second is CIV-2023-404-003024 (the 3024 proceeding). The statement of claim, which is styled as an application for judicial review, refers to the information and repeats as a cause of action an allegation in the 2908 proceeding that the information was “unlawfully recorded” and held in breach of the Privacy Act 1993.

$50,000,000 is sought in general and/or compensatory damages for the “significant length of time” the information was recorded.

[3]    Sums of $40,000,000 and $30,000,000 are sought on the same grounds as in the 2908 proceeding.

[4]    NZCS applied (relevantly) for the proceedings to be struck out and for an order pursuant to s 166(2)(a) of the Senior Courts Act 2016 (the Act) restraining Mr Rafiq from taking further civil action against NZCS in respect of the information.

The law

[5]The law is set out succinctly in the NZCS submissions:

20.Rule 15.1 of the High Court Rules 2016 (HCRs) contains two broad grounds on which strike out may be sought. Firstly, the Court may strike out all or part of a claim if it discloses no reasonably arguable cause of action.1 The Court’s approach to striking out such claims is well established:2

20.1Pleaded facts, whether admitted or not, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.

20.2To be struck out, the proceeding must be clearly untenable, or in other words, the Court must be certain it cannot succeed.

20.3The jurisdiction is to be exercised sparingly, and only in clear cases, reflecting the Court’s reluctance to terminate a claim or defence short of trial.

20.4The fact that an application raises difficult questions of law or requires extensive argument does not exclude the jurisdiction.

20.5The Court should be slow to strike out a claim in a developing area of the law.

21.The second broad ground for strike out is abuse of the Court’s processes, under one of the grounds in rr 15.1(1)(b)-(d) of the HCRs.3 Forms of impropriety can include:

21.1Prolix, unintelligible or scandalous pleadings,4 which will cause prejudice to a defendant not able to sensibly respond.5

21.2Collateral challenge to concluded proceedings, including bringing proceedings that are “dressed in different garb but hav[e] the same effect”.6

22.As with the first ground for strike out, this power will be sparingly exercised; if defective pleadings can be cured, an amended statement of claim is the preferred approach.7

23.The principles for strike-out in relation to judicial review proceedings are no different than those that apply to other civil proceedings.8

1      High Court Rules 2016, r 15.1(1)(a).

2      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [31]–[33].

3      This ground was summarised by the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].

4 At [89].

5      As in Rafiq v Auckland District Court [2013] NZHC 2640 at [21].

6      Dotcom v District Court at North Shore [2017] NZHC 3158 at [25], citing Rabson v Judicial Conduct Commissioner [2016] NZHC 2539; Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586; and Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL).

7      Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 3, at [89].

8      Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63 per Gault J.

Background

[6]    I adopt the description of the factual background contained in the NZCS submissions:

Customs records information about Mr Rafiq

6.These proceedings arise from information received and recorded by Customs in 2008 and 2011, and later disclosed to Mr Rafiq in 2017.

7.On 4 February 2008, Customs received an unsolicited letter that was reported to contain allegations that Mr Rafiq (inter alia) has extremist religious and political affiliations, would soon graduate from the ‘Ardmore Pilot training college’ with a commercial pilot’s license, and had once threatened to fly a fully loaded airliner into the Sky Tower. An internal report summarising the letter was recorded in Customs’ internal information system called ‘CusMod’ (the 2008 Report).

8.On 21 May 2011, a further internal report was recorded in CusMod which noted (in summary and inter alia) that a Customs’ official had come across a listing for a car while browsing TradeMe in their personal capacity and noted that the seller’s profile – which the official assumed belonged to Mr Rafiq – contained a lengthy narrative which noted a general interest in aviation (the 2011 Report).

Customs discloses Mr Rafiq’s personal information to him

9.On 8 December 2017, Mr Rafiq emailed Customs and requested – under the Privacy Act 1993 (PA 1993) – all information Customs held regarding himself.

10.On 19 December 2017, Customs responded to Mr Rafiq’s request by sending a letter (Disclosure Letter) that disclosed (by attachment) Mr Rafiq’s personal information held by Customs, which included the 2008 and 2011 Reports (the 2017 Disclosure).

11.The 2017 Disclosure contained several redactions made pursuant to ss 27(1)(c) (information likely to prejudice the maintenance of the law) and s 29(1)(a) (information relating to another individual) of the PA 1993. This was notified to Mr Rafiq in the Disclosure Letter and the relevant ground for withholding information was noted in a ‘Privacy Act’ column beside the redactions in the 2017 Disclosure.

12.The Disclosure Letter advised Mr Rafiq of his right to request that information be corrected if it was inaccurate, not current, incomplete or misleading. Mr Rafiq did not make a request to have his information corrected. Mr Rafiq was also advised of his right to complain to the Privacy Commissioner under s 67 of the PA 1993 to seek a review of Customs’ decision to withhold information. It appears he has not taken up this opportunity.

(footnotes omitted)

Discussion

[7]    First, a note of caution. I must take care not to make assumptions based on Mr Rafiq’s history with the Courts.

[8]    Mr Rafiq is a self-represented litigant who is well known to the Courts for taking vexatious proceedings. On 27 May 2015, he was declared a vexatious litigant and ordered not to commence proceedings without leave.9 Mr Rafiq’s status as a vexatious litigant ended on 28 February 2022.

[9]    Mr Rafiq has twice attempted previously to sue NZCS in relation to the information.

[10]   In 2018 Mr Rafiq applied for leave to commence defamation proceedings against NZCS. Justice Lang dismissed the application, noting:10

The latest proceeding is clearly an attempt by Mr Rafiq to engage in the same type of litigation that led to him being declared a vexatious litigant.

[11]   On 4 April 2022, Mr Rafiq applied for leave to sue NZCS for defamation out of time. Justice Woolford dismissed the application as being an abuse of process.11

[12]   The right to access the courts to seek justice is a cornerstone of our constitutional system. Mr Rafiq is self-represented. The fact that he has repeatedly abused his right to seek access to justice in the past does not mean that he is abusing it now. I will consider his pleadings and submissions with an open mind.

[13]   Mr Rafiq does not help his case by seeking absurdly large sums of money. Nor does he appear to know that damages are not generally awarded in judicial review proceedings.12 But the major issue is whether he has identified and pleaded a viable cause of action.

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

10     Rafiq v New Zealand Customs Service [2018] NZHC 283 at [3].

11     Rafiq v New Zealand Customs Service [2022] NZHC 1756.

12     See Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, 2021) at 1262, citing Morrison v Upper Hutt City Council [1998] 2 NZLR 331 (CA) at 333.

[14]   NZCS does not dispute that it holds the information. Indeed, it told Mr Rafiq it holds the information when Mr Rafiq inquired.

[15]NZCS submits, and I accept:

44.Customs has enforcement functions and responsibilities under the CEA to detect and seize prohibited imports and exports, including those related to terrorism.13 Customs also has powers under s 47A of the Terrorism Suppression Act 2002 to seize and detain goods and cash suspected to be terrorist property.

45.It was not unreasonable or unlawful for Customs [to] have made the 2008 and 2011 Reports to have a record of information it received or obtained in relation to potential border offending to inform its risk assessments. Further, there is no prospect of any alleged CEA breach giving rise to the level of damages sought by Mr Rafiq.

[16]   So, in short, the NZCS has recorded information it has received in respect of Mr Rafiq. It has not unlawfully recorded the information. Mr Rafiq has been invited to add to the record with any corrections he might wish to make; he has not done so.

[17]   Mr Rafiq’s statements of claim are largely unintelligible outside of his pleadings of the background facts. The statements of claim are largely duplicative.

[18]   Mr Rafiq does plead matters which have the clothing of identifiable causes of action. For example, in the 2908 proceeding:

12.The defendant breached his right of freedom of speech under s14 of the NZ Bill of Rights Act 1990 by accusing him of those choice of words to support the information of the third party such as airplane hijacking and fly into sky tower (paragraph 3 refers).

13.The plaintiff cannot apply any statement of correction to that information since it is inappropriate. There is a right to delete such untrue and adverse information where a statement of the correction is inappropriate.

14.The defendant breaches his statutory right of obtaining full personal information pursuant to information privacy principle 6.

15.The plaintiff cannot apply any statement of correction to that information that is being withheld and therefore, breaches his right under the principle 7 of the Privacy Act 1993.

13 Sections 54(1)(aa), 56(1)(b), 209, 255(1)(a)(v), and 226 of the Customs and Excise Act 1996, replaced by ss 95, 176(1)(d)(ix), 178, and 388 Customs and Excise Act 2018. Also see s 3(3)(d) of the Films, Videos, and Publications Classification Act 1993.

16.That recording and withholding of information is unreasonable, without any legal basis, lack statutory rights, jurisdiction and therefore, unlawful and prejudicing the plaintiff.

17.The defendant breaches his statutory right to be free from those and obtaining full personal information.

18.Those recorded and withheld information were still active in the computer database and physical files of the defendant.

19.The defendant shared those information with other government departments and agencies via data and or information matching systems.

20.The conduct of the defendant was unreasonable and contrary to its internal polices and or procedures and or functioning of the department and applicable provisions of the Privacy Act 1993, Customs and Excise Act 2018 and rights under s14 of the NZ Bill of Rights Act 1990.

[19]I note also that one form of relief claimed is:

24.2A declaration that the defendant breached the applicable provisions of the Privacy Act 1993, Customs and Excise Act 2018 and rights under s14 of the NZ Bill of Rights Act 1990 …

[20]   There are also allegations that NZCS has harmed Mr Rafiq, including by causing the denial of his citizenship, because it shared the information with other government entities.

[21]   However, the jumble of allegations and statements does not create recognisable causes of action. To the extent they might begin to do so, there is a hopeless lack of coherence and particulars.

[22]   In short, the pleadings, when considered against the legal principles set out at [5], do not disclose a reasonably arguable cause of action. To allow Mr Rafiq to carry on with his proceedings would be an abuse of the Court’s process. It is not a matter of Mr Rafiq being permitted to re-plead to cure apparent deficits. The proceedings are clearly untenable.

[23]I will strike out the proceedings.

[24]   I now turn to whether I should make an order pursuant to s 166(2)(a) of the Act.

[25]   Section 166 empowers a Judge to make an order restricting a person from commencing or continuing a civil proceeding. The power exists to protect court processes, and blameless parties, from people who, for whatever reason, are motivated to bring multiple unfounded proceedings.

[26]   Here, NZCS seeks a limited order14 restricting Mr Rafiq from commencing or continuing civil proceedings in relation to the information, against the NZCS, in any court, or tribunal for a period of not less than three years.

[27]   Mr Rafiq, not unnaturally, opposes the application. He gives a number of grounds, including that he has no intention “at present time to refile those matters again in an attempt to get extra justice”, and that he has a right to justice which should not be limited.

[28]   I am satisfied that Mr Rafiq has now brought four civil proceedings against NZCS about the information.15 All are or were totally without merit.16 I have little doubt that if I do not make an order Mr Rafiq will file further proceedings as soon as he can find another pretext.

[29]   I will make a limited order under s 166. I will make the term of it the maximum I can (three years) in the absence of exceptional circumstances. Sadly, Mr Rafiq’s willingness to bring repeated proceedings without merit are exceptional only for the sums of money he claims. NZCS is not a vulnerable party and neither is the subject matter of Mr Rafiq’s proceedings exceptional. I will not be at all surprised if, in three years, Mr Rafiq brings further proceedings.

[30]   I will exempt from my s 166 order any appeal Mr Rafiq may wish to bring against this Judgment.17

14     Senior Courts Act 2016, s 166(2)(a).

15     I refer to the two defamation proceedings described at [10] and [11], and the two proceedings the subject of this Judgment.

16     Senior Courts Act, s 167(1).

17     Section 169(8) of the Act gives Mr Rafiq a right of appeal, in any event.

Decision

[31]   The application by NZCS to strike out the 2908 proceeding and the 3024 proceeding is granted. I strike out those two proceedings.

[32]I make an order under s 166 of the Act as follows:

(a)Mr Rafiq is restrained from commencing or continuing any proceeding against NZCS relating or pertaining directly or indirectly to the information in any court or tribunal without first obtaining the leave of this Court.

(b)The period of restraint is three years, commencing 22 November 2024.

(c)The restraint does not apply to any appeal Mr Rafiq may bring against any of the orders made in this Judgment.

[33]   NZCS is entitled to costs. If it seeks them, it must file a memorandum no later than 13 December 2024. Mr Rafiq’s memorandum (if any) is to be filed no later than 17 January 2025.

Brewer J