Razdan Rafiq v Google New Zealand Limited

IN THE SUPREME COURT OF NEW ZEALAND

SC 72/2014
[2014] NZSC 159

BETWEEN	RAZDAN RAFIQ Applicant
AND	GOOGLE NEW ZEALAND LIMITED Respondent

Court:	McGrath, William Young and Glazebrook JJ
Counsel:	Applicant in person
Judgment:	6 November 2014

JUDGMENT OF THE COURT

The application for recall of the Court’s judgment is dismissed.

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REASONS

Mr Rafiq seeks recall of our judgment refusing leave to appeal[1] on the basis that the Court was wrong to award costs against him, in favour of Google, when it dismissed Mr Rafiq’s leave application.
[1]Rafiq v Google New Zealand Ltd [2014] NZSC 126.
The basis for the recall application is that the respondent did not seek costs. The only relief sought by the respondent was refusal of leave to appeal.
Rule 44 of the Supreme Court Rules 2004 gives the Court discretion to “make any order that seems just” in relation to the costs of an application for leave to appeal. The availability of the Court’s discretion does not depend on whether the respondent applies for an order as to costs. In awarding costs in this matter, the Court exercised this discretion in favour of the respondent. The present application does not set out any basis on which the Court can recall its judgment. The application for recall is dismissed.

CaseChat Overview and Summary

Razdan Rafiq applied to recall a Supreme Court judgment that dismissed his application for leave to appeal a previous decision. Google New Zealand Limited, the respondent, opposed the recall and argued that the applicant’s application was without merit. The application for recall was made on the basis that the Court had erred in awarding costs in favour of Google when it dismissed the applicant's leave application, despite the respondent not seeking costs.

The legal issue before the Court was whether the Court had the authority to award costs against the applicant in the absence of a request from the respondent. This involved an interpretation of Rule 44 of the Supreme Court Rules 2004, which grants the Court discretion to make any order that seems just in relation to the costs of an application for leave to appeal. The Court needed to determine if the exercise of this discretion depended on the respondent applying for an order as to costs.

The Court held that Rule 44 does not require the respondent to apply for an order as to costs before the Court can exercise its discretion to award costs. The Court exercised its discretion in favour of Google and awarded costs. The applicant's argument that the Court’s discretion was not available in the absence of a request for costs was rejected. The Court found no basis for recalling its judgment and dismissed the application for recall.

The final orders of the Court were that the application for recall of the judgment was dismissed and that the applicant was to pay the respondent’s costs of the recall application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established