Razdan Rafiq v Chief Executive - [2014] NZSC 72

IN THE SUPREME COURT OF NEW ZEALAND

SC 19/2014
[2014] NZSC 72

BETWEEN

RAZDAN RAFIQ
Applicant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
First Respondent

THE COMMISSIONER OF THE NEW ZEALAND POLICE
Second Respondent

SC 40/2014
BETWEEN	RAZDAN RAFIQ Applicant
AND	THE PRIVACY COMMISSIONER Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	Applicant in person S M Kinsler for Respondents in SC 19/2014 K E Evans for Respondent in SC 40/2014
Judgment:	16 June 2014

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

____________________________________________________________________

REASONS

In these two applications, the applicant, Mr Rafiq, seeks leave to appeal against two decisions of Harrison J upholding decisions by the Registrar of the Court of Appeal requiring Mr Rafiq to pay security for costs on two appeals.[1]
[1]Rafiq v Chief Executive of the Ministry of Business Innovation and Employment [2014] NZCA 4 and Rafiq v The Privacy Commissioner [2014] NZCA 137.
The background to the two appeals is as follows:
(a)As to the appeal involving the Chief Executive of the Ministry of Business, Innovation and Employment, Mr Rafiq was convicted in the District Court of two charges under the Postal Services Act 1998 and one charge under the Harassment Act 1997.[2] On appeal to the High Court, his conviction under the Harassment Act was quashed but his appeal in respect of the Postal Act charges was dismissed.[3] Mr Rafiq then issued a proceeding styled as an application for judicial review against the Chief Executive and the Commissioner of Police, which put in issue actions taken by the police in the course of dealing with the offences. Both the Chief Executive and the Commissioner applied to strike the proceeding out. Venning J granted the Chief Executive’s application, on the basis that the Chief Executive was not mentioned in the body of the statement of claim filed by Mr Rafiq, nor was any relief sought against him.[4] Venning J also struck out the claims against the Commissioner but gave Mr Rafiq leave to file, by a specified date, an amended statement of claim restricted to an alleged assault when he was arrested by the police. Mr Rafiq did file a further statement of claim, to which the Commissioner has filed a statement of defence, but also filed an appeal against Venning J’s decision, which gave rise to one of Harrison J’s decisions.
(b)The appeal in relation to the Privacy Commissioner concerns an unsuccessful application by Mr Rafiq to commence proceedings against the Commissioner out of time. Mr Rafiq wishes to sue the Commissioner in defamation on the basis of a letter written by a staff member at the conclusion of the investigation of a complaint to the Commissioner by Mr Rafiq. Mr Rafiq sought leave to issue proceedings out of time under s 4(B) of the Limitation Act 1950. In declining leave, Lang J noted that Mr Rafiq had not explained his delay in issuing proceedings but declined leave because he considered…

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.

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Details

Case: [2014] NZSC 72
Decision Date: 16 June 2014

CaseChat Overview and Summary

In these two cases, Razdan Rafiq sought leave to appeal against two decisions made by Justice Harrison in the Court of Appeal. These decisions concerned orders for security for costs on two appeals. The first appeal involved a judicial review application against the Chief Executive of the Ministry of Business, Innovation and Employment and the Commissioner of Police. The second appeal involved an unsuccessful application by Mr Rafiq to commence proceedings against the Privacy Commissioner out of time in a defamation case.

The legal issues the court was required to decide were whether the proposed appeals raised issues of general or public importance and whether there was a possible substantial miscarriage of justice. The court considered the principles applicable to dispensing with security for costs in the Court of Appeal as addressed in the case of Reekie v Attorney-General.

The court found that neither of the proposed appeals raised any issue of general or public importance. Further, the court found that there was no appearance of a substantial miscarriage of justice. Therefore, the court declined to grant leave to appeal and made no order for costs.

The final orders in these cases were that the applications for leave to appeal were dismissed.

Orders