Rafiq v Director of Civil Aviation Authority of New Zealand [2014] NZHC 2296 (22 September 2014)

Last Updated: 26 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002478 [2014] NZHC 2296

UNDER	the Defamation Act 1992
IN THE MATTER	of a claim
BETWEEN	RAZDAN RAFIQ Applicant
AND	THE DIRECTOR OF CIVIL AVIATION AUTHORITY OF NEW ZEALAND Respondent

Hearing:	(On the papers)
Judgment:	22 September 2014

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 22 September 2014 at 2.15 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Civil Aviation Authority of NZ, Auckland

Copy to: Applicant

RAFIQ v THE DIRECTOR OF CIVIL AVIATION AUTHORITY OF NEW ZEALAND [2014] NZHC 2296 [22

September 2014]

[1] This proceeding was referred to in the decision of this Court in [2014] NZHC

2291.

[2] As the Court said in that decision on a review of the Registrar’s decision:¹

In these proposed proceedings Mr Rafiq alleges defamatory statements on behalf of the Director of Civil Aviation. The claim is based on the internal records of the Authority concerning its dealings with Mr Rafiq and information it holds regarding him. He seeks compensatory, aggravated and exemplary damages totalling $100 million.

In a recent decision of 5 August 2014 the Court struck out proceedings Mr Rafiq had brought against a number of entities including the Director of Civil Aviation Authority.² The proceedings were struck out because of Mr Rafiq’s failure to comply with the directions of the Court. To the extent there was any force or merit in the claim proposed in the current proceedings, of which none is apparent, the present claim could have been included in that particular claim.

The current proceeding Mr Rafiq proposes to pursue against the Civil Aviation Authority is no more than an attempt to avoid the consequences of the striking out of the earlier proceedings. As such it is an abuse. The situation is similar to a previous case involving Mr Rafiq in Rafiq v Secretary for Department of Internal Affairs in New Zealand.³ In that case Asher J noted:

[28] It is clear that Mr Rafiq, having had his earlier proceedings struck out, has gone through the same set of documents and timeframe that led to the 1385 proceedings, found an email not previously referred to and used this as the basis of a new proceeding to maintain his campaign. The court processes were not designed for this purpose. To use them to harass and achieve a collateral gain in this way is an abuse of procedure.

The Court processes are not to be used in this way. Mr Rafiq is deliberately setting out to harass Meredith Connell and a number of government entities including the Civil Aviation Authority. The Court must not allow its processes to be abused in that way.

[3] For those reasons and the further following reasons identified in the review decision it is proper to strike out these proceeding in the inherent jurisdiction of the Court:

[11] ... [w]hile the documents may comply with the basic requirements

_{of the High Court Rules in relation to form the Court retains an inherent}

¹ _{Re Rafiq [2014] NZHC 2291, at [26]–[29].}

² Rafiq v The Secretary for the Department of Internal Affairs of New Zealand & Ors CIV-2014-

_{404-1385, minute dated 5 August 2014.}

³ Rafiq v Secretary for Department of Internal Affairs in New Zealand [2014] NZHC 2064.

jurisdiction pursuant to which it has a duty to strike out pleadings that are an abuse of process.

_{[12] As Lord Diplock said in Hunter v Chief Constable of the West}

Midlands Police [1981] UKHL 13; [1982] AC 529:⁴

My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; ... It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

[13] Lord Diplock’s comments were cited with approval by the Richardson J in the Court of Appeal in Reid v New Zealand Trotting Conference as follows:⁵

The abuse of process principle.

Misuse of the judicial process tends to produce unfairness and to undermine confidence in the administration of justice. In a number of cases in recent years this Court has had occasion to consider the inherent jurisdiction of the High Court, and on appeal this Court, to take such steps as are considered necessary in a particular case to protect the processes of the Court from abuse. (See particularly Moevao v Department of Labour [1980] 1 NZLR 464 and Taylor v Attorney-General [1975] 2 NZLR 675.) In exercising that jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. The public interest in the due administration of justice necessarily extends to ensuring that the Courts' processes are fairly used and that they do not lend themselves to oppression and injustice. The justification for the extreme step of staying a prosecution or striking out a statement of claim is that the Court is obliged to do so in order to prevent the abuse of its processes.

[14] The approach was confirmed by the Supreme Court in Chamberlains v Lai.⁶

[15] My review of the proceedings referred by the Registrar confirms that in substance and context they are properly categorised as an abuse of the process of the Court. Although on their face the proceedings comply with the literal application of procedural rules, it would be manifestly unfair to the proposed defendants and would otherwise bring the administration of justice into disrepute among right thinking people to allow the proceedings to proceed, even to the stage of service, so that the Court has a duty to act and to peremptorily strike them out in accordance with the above principles. I explain why.

⁴ Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529, [1981] 3 All ER 727 at

_729.

⁵ _{Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at 9.}

⁶ Chamberlains v Lai [2006] NZSC 70 at [63].

...

[30] Quite apart from the abuse apparent on the face of the current proceedings, Mr Rafiq has himself effectively confirmed his intention to file vexatious proceedings in an attempt to clog the workings of the Court and to harass the defendants to his proceedings. Previous judgments of the Court confirm that to be the position. Mr Rafiq’s comments to that effect have been referred to in other proceedings issued by him. In the decision of Rafiq v Secretary for Department of Internal Affairs in New Zealand Asher J referred to the following comments of Mr Rafiq:⁷

Further the applicant shall file multiple litigations against the respondent. The litigations shall also encompass [the Secretary for the Department of Internal Affairs in New Zealand]. The litigations shall also encompass the Internal Affairs Minister and the Prime Minister and appeals shall follow right to the Supreme Court. The process shall be repeated multiple times until and unless justice is secured. Those who shall resist any proceedings and/or stand in the path of the applicant shall face series of litigations.

And later:

If you resist these proceedings then I shall feed your department with multiple litigation including the Minister.

[31] In Rafiq v Meredith Connell Associate Judge Bell recorded an email Mr Rafiq had sent to Meredith Connell on 25 November 2013 in which he said:⁸

At the outset of next year, I am going to flood judicial review proceedings in all the High Court of New Zealand against the Court of Appeal, Supreme Court, Judicial Conduct Commissioner, Attorney-General, Justice Minister, Minister for Courts, each and every Judge in the High Court, Court of Appeal and Supreme Court ...

[32] The Judge went on to refer to an email of 20 May 2014 in which Mr Rafiq responded to statements by others that he was a “serial litigant” and a “painful plaintiff”. That email includes the following:

It is not my fault that I cannot control filing litigations. It has become my disease. The Ministry of Justice should get the blame. ... In this criminal proceeding process I was given a disease of litigation. Since then I could not stop myself from filing litigations and if someone Googles my name will see the evidence.

Without litigations I cannot survive. Since Ministry of Justice gave me this litigation disease everyone will face litigation who shall stand in my life.

With litigations I really want to secure my life as well. Let’s see?

In light of the above people should never complain that I am “serial litigant” or a “painful litigant”.

⁷ _{At [26].}

⁸ Rafiq v Meredith Connell [2014] NZHC 1597.

[33] For completeness I also note the following. There are no financial consequences to Mr Rafiq as a consequence of the above. He seeks a fee waiver in each case on the basis that he is in receipt of a sickness benefit.⁹

[34] The Court is well aware of Mr Rafiq’s right to justice under s 27, including in particular to bring proceedings against the Crown. The right to justice provided in s 27 is an important right, established through the course of history and enshrined as a fundamental part of our justice system. Any suggestion that it permits Mr Rafiq to act in the way he seeks to act is to trivialise the importance of the right.

[35] Further, the resources of this Court are limited. There are genuine litigants whose cases are delayed because of the time and resources applied to deal with these entirely unmeritorious proceedings of Mr Rafiq. Their rights of access to justice are affected if the Court is required to deal with defended strike out and summary judgment applications on Mr Rafiq’s files.

Result

_{[4] The proceedings are struck out.}

_{Venning J}

⁹ High Court Fees Regulations 2013: reg 19(a).