Attorney-General v Rafiq [2015] NZHC 579 (26 March 2015)

Last Updated: 16 April 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2711 [2015] NZHC 579

BETWEEN	ATTORNEY-GENERAL Applicant
AND	RAZDAN RAFIQ Respondent

Hearing:	26 March 2015
Appearances:	K Muller and T Westaway for Applicant Respondent in person
Judgment:	26 March 2015

_{ORAL JUDGMENT OF WYLIE J}

Solicitors: Crown Law, Wellington

Copy to: R Rafiq: [e-mail]

ATTORNEY-GENERAL v RAZDAN RAFIQ [2015] NZHC 579 [26 March 2015]

Introduction

[1] On 17 October 2014 the applicant – the Attorney-General – filed a statement of claim, seeking that Mr Rafiq should be declared a vexatious litigant under s 88B of the Judicature Act 1908. The statement of claim was served on Mr Rafiq on 12

November 2014, together with initial disclosure as required by r 8.4 of the High

Court Rules.

[2] Mr Rafiq has not as yet filed a statement of defence. He resists doing so until three interlocutory applications he has made are determined.

[3] The three interlocutory applications are as follows:

(a) An amended application dated 23 January 2015 seeking an order that all High Court Judges based in Auckland should recuse themselves from all stages of the proceeding.

(b) An application dated 17 November 2014 seeking proper service of the proceedings and the initial disclosure documents.

(c) An amended application dated 17 November 2014 seeking security for costs.

[4] Applications (b) and (c) are opposed by the Attorney-General. The Attorney- General takes no stance in regard to the first application.

[5] I deal with each application in turn.

Application for recusal

[6] Mr Rafiq asserts that there are reasons to believe that the Auckland High Court Judges collectively have acted unfairly in determining issues that form the basis of these proceedings. Those assertions are made in the application itself. He argues that most of the various judgments which have been given against him originate from the High Court, and that there will be a conflict of interest should any

Judge of the High Court of Auckland preside over any aspect of the present proceedings. He also asserted in the application that the Auckland High Court Judges have “been advancing [a] widespread abusive and humiliating campaign against [him] and [that] he does not wish to get subject to further abuse”.

[7] In the course of the hearing today Mr Rafiq sought to widen the application. He sought an order that all High Court Judges whether or not sitting in Auckland should recuse themselves in relation to these proceedings.

[8] The law in relation to judicial recusal is clearly articulated in a number of decisions.¹ Judges have an obligation to sit on any case allocated to them unless grounds for disqualification exist. A Judge is disqualified if a fair minded lay observer might reasonably apprehend that there is a real and not remote possibility that the Judge may not bring an impartial mind to the resolution of the question the Judge is required to decide. It is necessary first to identify what it is said might lead the Judge to decide a case other than on its legal and factual merits, and secondly, to articulate the logical connection between the matter and the feared deviation from

the course of deciding a case on its merits.

[9] Here Mr Rafiq asserts, in effect, pre-determination or bias. He refers to various comments which have been made by Judges sitting in the High Court in Auckland in the course of various proceedings in which he has been involved. Of itself, this does not suffice, and it does not require that all Judges in the Auckland High Court or indeed in New Zealand, recuse themselves from hearing this proceeding. The fact that a Judge, earlier in a case or in a previous case, has commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, does not, without more, found a sustainable objection to that Judge’s involvement in the proceeding. There cannot be presumptive bias where the rulings of a Judge, although consistently adverse to a party’s interests, have

_{nevertheless been consistently in accordance with the law. I agree with the}

¹ See, Saxmere Co Limited v New Zealand Wool Board Disestablishment Company Limited (2009) NZSC 79, [2010] NZLR 35; Locabail (UK) Limited v Bayfield Properties Limited [2001] 1 All ER 65 (CA); Pearce v Tower Insurance [2014] NZHC 2849; Vakauta v Kelly (1989) 167 CLR

568; Muir v Commissioner of Inland Revenue [2007] NZCA 334; [2007] 3 NZLR 495 (CA).

observations made by Cooper J in Russell v The Taxation Review Authority² that there is a duty on a Judge to decide cases in accordance with the law and that compliance with that duty cannot give rise to a reasonable apprehension of bias. As he noted the notional fair-minded lay observer must be assumed to know that much about the role of a Judge.

[10] Further the fact that some Judges in the Auckland common room have, in the exercise of their judicial responsibilities, made findings adverse to Mr Rafiq, cannot justify an application that all Auckland High Court Judges or all High Court Judges in New Zealand recuse themselves from hearing this proceeding. Judges are independent, the one of the other.

[11] I am the Judge allocated to deal with this proceeding. I have read the statement of claim. There is only one reference in it to a minute that I issued; that reference is in paragraph 61. In that minute I recorded that an earlier judgment given by Justice Venning remained in force. I directed the Registrar to return to Mr Rafiq an application which had been filed in breach of Justice Venning’s judgment, and I reiterated orders made by Justice Venning that the Registrar was not to accept any further documents from Mr Rafiq on the file, unless security was paid. There has been no firm opinion expressed by me adverse to Mr Rafiq or which could reasonably be taken as expressing a view on any issue in dispute in the present case.

[12] There is no basis on which I should recuse myself and I decline to do so. Mr

Rafiq’s application for recusal is dismissed.

Application seeking proper service of documents

[13] Mr Rafiq has not filed an affidavit in support of this application. Rather, in the application itself, he claims that the proceeding was served on him in a “torn, without lid box that appeared to come from the road side rubbish bin”, that none of the documents were bound or in a proper folder, and that the documents are difficult

_{to comprehend. He says that the process server threw the documents at his feet.}

² Russell v The Taxation Review Authority HC, Ak, CIV-2005-404-005203, 19 December 2008 at

[88] – [101]; upheld on appeal [2011] NZCA 158, [2011] NAZR 310.

[14] These various assertions are denied in affidavits filed on behalf of the Attorney-General. It is apparent from those affidavits that the initial disclosure bundle was prepared by a Ms Reddin, a legal assistant at the offices of Crown Law. She made copies of various documents which had been identified by counsel for the Attorney-General as being required to be provided by way of initial disclosure pursuant to r 8.4. The initial disclosure bundle was not bound in a folder when it was served on Mr Rafiq. Instead Ms Reddin has deposed that she tied the loose documents together with string and sent them, together with the notice of proceeding and statement of claim, to an investigator, who subsequently arranged for a process server to serve them on Mr Rafiq. The documents provided were ordered chronologically by filing date, from oldest to newest, with any appeals following thereafter. It is clear from affidavits filed by a Mr Rowe and a Mr Aylwin, that the documents were placed in a A4 photocopy box, in good condition, and that they were handed to Mr Rafiq after he identified himself. Service, it seems, was professional and non-threatening.

[15] Service is required to be effected in accordance with the High Court Rules. Documents can be served on a party by personal service in accordance with r 6.1. It is clear that this is what happened in the present case.

[16] Rule 8.4 is silent on how an initial disclosure bundle is to be prepared, and it does not deal with the format in which the initial disclosure bundle is to be served. The rule permits the initial disclosure bundle to be served either electronically or as a bundle of documents in hard copy form. There is no requirement for the initial disclosure bundle to be served in a bound format, or in a folder, or in any particular type of box, or even in a box at all.

[17] It is clear from the affidavits which have been filed that the Attorney-General has complied with all relevant rules. Again this application is dismissed.

Application for security for costs

[18] Mr Rafiq seeks orders that the Attorney-General provide security for costs in the sum of $40,000, and that he be given 40 working days from the date on which security for costs is given to file a statement of defence.

[19] Again, this application must fail.

[20] Section 18 the Crown Proceedings Act 1950 is clear. It provides as follows:

Appeals, stay of execution, and costs

Subject to the provisions of this Act, all enactments and rules of court relating to appeals and stay of execution shall, with any necessary modifications, apply to civil proceedings by or against the Crown under this Act as they apply to proceedings between subjects; and the costs of suit shall follow on either side as in ordinary cases between other suitors:

Provided that the Crown shall not be required under any rule of court or order to deposit or give security for the costs of any other party.

[21] Section 2(2) of the Act provides that in civil proceedings, any reference to the

Crown is to be construed as including a reference to the Attorney-General.

Further directions

[22] Mr Rafiq has already delayed significantly in filing his statement of defence.

[23] When I asked him in Court today how long it would take him to file a statement of defence, he asserted that he could not file a statement of defence until 1

July 2015.

[24] Rule 5.47(2) provides that, unless otherwise ordered by the Court, a statement of defence must be filed within 25 working days of the date on which the statement of claim and notice of proceeding are served on the defendant.

[25] It is now four and a half months since Mr Rafiq was served with the proceedings on 12 November 2014. The issues involved in the proceeding are

narrow. They concern matters directly within Mr Rafiq’s knowledge. There is no great complexity.

[26] I direct that Mr Rafiq is to file and serve a statement of defence on or before

5pm on Friday 24 April 2015. If he does not do so, then the matter may proceed by way of formal proof pursuant to r 15.9. I record that if no statement of defence is filed, and the Attorney-General seeks judgment by default, the proceeding will be listed for formal proof, and that no notice is required to be given to Mr Rafiq. After a proceeding is listed for a formal proof hearing no statement of defence may be filed without the leave of a Judge, and leave will be granted only where there will or may be a miscarriage of justice if judgment by default is entered.

Costs

[27] The Attorney-General is entitled to his costs on a 2B basis, in respect of both of the applications which were opposed. I certify for one counsel only. The Attorney-General is also entitled to his reasonable disbursements. In the event of a

_{dispute the same is to be referred to the Registrar.}

Wylie J