Rafiq v Meredith Connell [2015] NZCA 145 (4 May 2015)

Last Updated: 19 May 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA634/2014 [2015] NZCA 145
BETWEEN	RAZDAN RAFIQ Applicant
AND	MEREDITH CONNELL Respondent

Court:	Randerson, White and Miller JJ
Counsel:	Applicant in person B A Tompkins for Respondent
Judgment: (On the papers)	4 May 2015 at 11.30 am

JUDGMENT OF THE COURT

1. The application for special leave to appeal is dismissed.
2. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

[1] The applicant, Mr Rafiq, applies for special leave to appeal against a decision of Courtney J.^[1] The Judge declined Mr Rafiq’s application for review of a decision of Associate Judge Bell.^[2] The Associate Judge dealt with an application by the respondent, Meredith Connell, to strike out Mr Rafiq’s claim in defamation. The Associate Judge was satisfied that Meredith Connell had a complete defence to all aspects of the claim. He was also satisfied that the proceeding should be struck out as vexatious.
[2] Courtney J refused Mr Rafiq’s application for review of the Associate Judge’s strike out decision because no error was shown in the Judge’s reasoning or decision.
[3] Courtney J also refused Mr Rafiq leave to appeal her decision to this Court on the ground that it raised no issue of law or fact capable of serious argument.^[3]
[4] Mr Rafiq applies to this Court for special leave to appeal against both Courtney J’s refusal to review the decision granting the strike out and her decision refusing leave to appeal.
[5] This Court has no jurisdiction to hear an appeal against a decision refusing leave.^[4]
[6] The only issue therefore is whether special leave should be granted to appeal against Courtney J’s decision refusing the application for review of Associate Judge Bell’s decision.

Background

[7] Mr Rafiq in his statement of claim alleges that certain statements made by Meredith Connell in court during a prosecution against him and in the course of a civil proceeding brought by him against the Ministry of Business Innovation and Employment were defamatory. The statements related to the vexatious and abusive nature of proceedings brought by him.
[8] Mr Rafiq also claims that a similar statement published on a website was defamatory and an email sent by Meredith Connell to the police was defamatory.
[9] Associate Judge Bell struck out the claim because he found that for each alleged defamatory statement Meredith Connell had a defence:

• (a) In relation to the statements by Meredith Connell in court during the prosecution and in the course of the civil proceeding brought by Mr Rafiq against the Ministry of Business Innovation and Employment there was a defence of absolute privilege under s 14(1) of the Defamation Act 1992.^[5]
• (b) In relation to the statement published on the website there was no evidence to suggest that Meredith Connell published the statement and, in any event, a defence of qualified privilege was available.^[6]
• (c) In relation to the email sent by Meredith Connell to the police, Meredith Connell had a defence of qualified privilege.^[7]
• (d) In relation to the email sent by Meredith Connell to Mr Rafiq, defences of qualified privilege and honest opinion were available.^[8]

[10] In deciding to strike out the statement of claim Associate Judge applied the well-established principles relating to such strike out applications.^[9]
[11] In refusing Mr Rafiq’s application for review of the Associate Judge’s strike out decision, Courtney J was satisfied that no error was shown in the Judge’s reasoning or decision.
[12] In declining to grant leave to appeal against her decision, Courtney J concluded that the proposed appeal raised no issue of law or fact capable of serious argument.

The approach to be adopted

[13] The principles applicable to the present application (brought under s 26P(1AA) of the Judicature Act 1908) are those applied under s 67 of the Judicature Act.^[10] As this Court has explained:^[11]

... the proposed appeal must raise some question of law or fact capable of bona fide and serious argument. In addition, the case must involve some interest, public or private, which is of sufficient importance to outweigh the costs and delay of a further appeal.

[14] In Waller v Hider, the Court also noted that on a second appeal:^[12]

... this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a court.

Discussion

[15] We agree with Courtney J that leave to appeal should not be granted for the reasons the Judge gave. In addition, the proposed appeal does not raise any point capable of serious argument.
[16] There is no doubt that in terms of s 14 of the Defamation Act 1992 Meredith Connell has a complete defence of absolute privilege in respect of the statements made in court during a prosecution and in the course of the civil proceeding brought by Mr Rafiq against the Ministry of Business Innovation and Employment.
[17] It is settled law that the scope of absolute privilege is absolute and is not defeated by impropriety. It covers what is said or done in the course of a hearing, what is done from the inception of proceedings including all pleadings and

documents brought into existence for the purpose of the proceeding and the briefs of evidence and what is said during interviews of potential witnesses.^[13]

[18] The alleged defamatory statements were clearly said or written in the course of proceedings and therefore are protected by absolute privilege. There is no merit in this ground of appeal.
[19] Mr Rafiq has filed no evidence to provide any foundation to challenge the Associate Judge’s finding that Meredith Connell was not responsible for publication of the statement online.
[20] Even if Meredith Connell was responsible for the publication, it would have a defence of qualified privilege under s 16 of the Defamation Act 1992 and schd 1, pt 1, cl 6 which provides that the defence extends to:

The publication of a fair and accurate report of a proceeding of any court in New Zealand (whether those proceedings are preliminary, interlocutory, or final and whether in open court or not (or of the result of those proceedings).

[21] The statement published on line is a fair and accurate report of a decision given by Priestley J^[14] The alleged defamatory statement is:

... leave should not be granted due to (a) R’s terrible behaviour in conducting closely related litigation, (b) vexatious nature of proceeding, (c) extreme and extravagant language R had used and (d) fact that there was no evidence that defamatory statements had been published ... R claimed he did not want a ‘European’ Judge determining his claim because such Judges were racist.

[22] All of these statements appear in Priestley J’s decision.^[15] There is therefore a fair and accurate description. There is accordingly no merit in this ground of appeal.
[23] Meredith Connell forwarded emails to the police which were initially sent by Mr Rafiq on the grounds that they contained an element of harassment. Meredith Connell had an interest in alerting the police to the emails and the police had an interest in receiving the information. Meredith Connell was making the statement to the proper authority to obtain redress of a grievance. It was therefore appropriate for the Associate Judge to conclude the emails were protected by a qualified privilege.^[16]
[24] Meredith Connell had a genuine concern about Mr Rafiq’s behaviour and there is no suggestion the publication was motivated by ill-will so as to defeat the defence of qualified privilege.
[25] This ground is without merit.
[26] Finally, the Associate Judge did not err in considering Mr Rafiq’s history of vexatious litigation in conducting the claim against Meredith Connell. The Judge considered evidence from Mr Rafiq, the nature of the proceedings, the absence of any merit, and the grossly exaggerated quantum of damages sought in reaching the conclusion. The reference to other vexatious proceedings brought by Mr Rafiq is simply propensity evidence of his generally litigious nature admissible under s 40(2) of the Evidence Act 2006. It was permissible for the Judge to consider them.
[27] In summary Mr Rafiq’s defamation claim clearly lacks merit. No arguable question of law or fact is raised. His appeal is not of sufficient importance to outweigh the cost and delay it would generate.

Result

[28] For these reasons we do not consider the proposed appeal meets the test for granting leave for a second appeal. The application for special leave to appeal is dismissed.
[29] Costs should follow the event. Mr Rafiq must pay Meredith Connells costs for a standard application on a band A basis and usual disbursements.

Solicitors:
Gilbert Walker, Auckland for Respondent

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^[1] Rafiq v Meredith Connell [2014] NZHC 2549 (Second High Court decision).

^[2] Rafiq v Meredith Connell [2014] NZHC 1597 (First High Court decision).

^[3] Second High Court decision, above n 1, at [25].

^[4] Simes v Tennant [2005] NZCA 80; (2005) 17 PRNZ 684 (CA) at [39].

^[5] First High Court judgment at [18]–[20].

^[6] At [21]–[25].

^[7] At [26]–[35].

^[8] At [36]–[46].

^[9] At [9]–[12].

^[10] Talyancich v Index Developments [1992] 3 NZLR 28 (CA) at 36–37.

^[11] Sharma v Wati [2012] NZCA 195, (2012) 21 PRNZ 161 citing Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA) and Snee v Snee [1999] NZCA 252; (1999) 13 PRNZ 609 (CA).

^[12] At 413.

^[13] Teletax Consultants v Williams [1989] NZCA 23; [1989] 1 NZLR 698 (CA); Lincoln v Daniels [1962] 1 QB 237 (CA) at 256; Steven Todd (ed) The Law of Torts in New Zealand) 6 th ed, Thomson Reuters, Wellington, 2013 (at [16.10.03].

^[14] Rafiq and Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 1134.

^[15] At [6] and [22].

^[16] See Todd, above n 13, at [16.11.01(1)]; Alastair Mullis and Richard Parkes (eds) Gatley on Libel and Slander (12 th ed, Sweet & Maxwell, London, 2013) at [17.11]; Lloyd-Jones v Allen [2012] NSWCA 230 at [68].