Rafiq v Meredith Connell [2014] NZHC 2549 (17 October 2014)

Last Updated: 3 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000816 [2014] NZHC 2549

BETWEEN	RAZDAN RAFIQ Plaintiff
AND	MEREDITH CONNELL Defendant

Hearing:	13 October 2014
Appearances:	Plaintiff in person B A Tompkins for Defendant
Judgment:	17 October 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 17 October 2014 at 10.00 am

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date............................}

RAFIQ v MEREDITH CONNELL [2014] NZHC 2549 [17 October 2014]

Introduction

[1] Razdan Rafiq has applied to review Associate Judge Bell’s decision striking out his claim in defamation against a law firm, Meredith Connell.¹ The fully reasoned decision followed a defended hearing at which Mr Rafiq appeared in person and made submissions. The judgment was delivered orally on the day of the hearing but its length and detail indicate a significant amount of thought and preparation by the Associate Judge prior to the hearing. This review is conducted in accordance with the approach in Austin, Nichols & Co Inc v Stichting Lodestar;² it is for Mr Rafiq to persuade me that the decision was wrong. Only then will he be entitled to a fresh assessment of the issues.

[2] The third amended statement of claim alleged that Meredith Connell (1) made defamatory statements during the course of civil litigation in which Mr Rafiq was the plaintiff and Meredith Connell acted for the defendant,³ (2) made defamatory statements during criminal proceedings in which Mr Rafiq was the defendant and Meredith Connell the prosecutor, (3) published a defamatory report about a judgment of this Court on a website, (4) published defamatory comments about Mr Rafiq in an email to the Police and (5) published a defamatory comment about Mr Rafiq in an email circulated internally within Meredith Connell.

[3] Associate Judge Bell held that the statements in the first two categories were absolutely privileged, having been made in the context of legal proceedings. In relation to the publication on the website he held that, not only was there no basis for asserting that Meredith Connell was the publisher of the report, the report was protected by qualified privilege and Mr Rafiq had not shown any basis on which that defence could be defeated. Similarly, the communication to the police was protected by qualified privilege and there was no basis on which this defence could be rebutted. The internal communication of Meredith Connell was amenable to the

_{defences of honest opinion and qualified privilege.}

¹ _{Rafiq v Meredith Connell HC Auckland [2014] NZHC 1597.}

² _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, (2007) 18 PRNZ 768 (SC).}

³ Rafiq v Chief Executive of the Ministry of Business Innovation & Employment [2013] NZHC

1134.

The statements in issue

Statements made in the course of the civil proceedings between Mr Rafiq and the

Chief Executive of Business Innovation and Employment

[4] Meredith Connell acted for the Ministry in defamation proceedings brought by Mr Rafiq against the Ministry of Business Innovation and Employment in respect of the New Zealand Immigration Service. When Mr Rafiq applied for leave to bring the defamation proceeding out of time, the Ministry opposed the application. Meredith Connell filed written submissions in court and communicated to the Ministry about the application.

[5] Associate Judge Bell considered that both types of statements were privileged. The former was subject to the absolute privilege under s 14(1) of the Defamation Act 1992, which protects anything said, written or done in judicial proceedings. That was plainly right.

[6] The latter statements the Associate Judge held to be protected by the absolute privilege under s 14(2) of the Defamation Act 1992 which applies to communications between clients and their legal advisors for the purposes of seeking and providing legal advice. That, too, was plainly right. The suggestion in Mr Rafiq’s notice of appeal that the communications between Meredith Connell and the Ministry did not amount to legal advice for the purposes of s 14 is unsustainable. The circumstances in which the statements came into existence were described in an affidavit by a partner of Meredith Connell, Mr Fotherby. He confirmed that his communications were of the kind that were usual between lawyer and client in the conduct of litigation and were limited to that function.

[7] The Associate Judge rejected Mr Rafiq’s argument that this privilege could be defeated by allegations of improper use or knowing abuse of the occasion to make the statements. Mr Rafiq submitted that the Associate Judge was wrong to do so. But there was no error in the Associate Judge’s statement of the law or application of it in this regard. In my discussion with him Mr Rafiq appeared to acknowledge this, saying that he had brought the application solely as a means of making his way to the Supreme Court in order to argue that the absolute privilege conferred by s 14 was subject to limitations.

Statements made during the course of criminal proceedings

[8] This cause of action related to statements made by Meredith Connell personnel in court during the conduct of a prosecution.⁴ Associate Judge Bell held, correctly, that statements made by a lawyer in court were absolutely privileged under s 14(1) of the Defamation Act.

Report of Priestley J’s decision

[9] Priestley J granted Mr Rafiq leave to bring the defamation proceedings against the Ministry.⁵ A summary of Priestley J’s decision appeared on the website lawfuel.co.nz. Mr Rafiq alleged that Meredith Connell was responsible for this publication and that it was defamatory.

[10] Meredith Connell denied any association with the website. A partner of the firm provided an affidavit to that effect. Mr Rafiq offered no evidence to support his allegation, either at first instance or on this review. Although a strike-out application proceeds on the basis that pleaded facts are assumed to be true and that a pleading will be struck out only in the clearest of cases that does not mean that a cause of action that depends on a speculative or completely untenable factual allegation could not be struck out. In Pharmacy Care Systems Ltd v Attorney-General the Court of

Appeal observed that:⁶

The Judge recorded that the rules about strike out were not in issue: that strike out occurs only in the clearest of cases and that it is unusual for Courts to determine questions of fact on a strike-out application, although as the authorities make clear, a Court should have its feet firmly on the ground and not be afraid to take hard decisions even about disputed facts where there is a clear inevitability about the outcome.

[11] In the circumstances of this case the Associate Judge was right to conclude that there was no prospect of success. As a result, there is no need to consider the

_{Associate Judge’s finding on qualified privilege.}

⁴ _{Police v Rafiq (aka Khan) DC Auckland CRI-2011-004-14731, 3 September 2012.}

⁵ Rafiq v Chief Executive of the Ministry of Business Innovation & Employment [2013] NZHC

_1134.

⁶ Pharmacy Care Systems Ltd v Attorney-General [2001] NZCA 351; (2001) 15 PRNZ 465 at

[13].

Email from Meredith Connell’s IT manager to the Police

[12] This pleading relates to an email sent by Meredith Connell’s IT manager to the Police attaching some 43 emails from Mr Rafiq to Meredith Connell referring to “communications we have intercepted from Razdan Rafiq”. The email itself was innocuous but the forwarded emails were rightly described by the Associate Judge as being likely to give rise to concern and having an element of harassment about them.

[13] The Associate Judge considered that Meredith Connell was entitled to pass on the emails and express its concern about Mr Rafiq’s behaviour and that there was reciprocity of interest between it and the Police in these communications so that the email was sent on an occasion of qualified privilege. This was not an error. These were emails sent by Mr Rafiq himself. Given the content of them Meredith Connell was entirely justified in forwarding them on to the Police. There can be no complaint about the covering email.

[14] Associate Judge Bell did not accept Meredith Connell’s submission that publication of the forwarded emails was protected by the absolute privilege under s 14 because the covering email fell short of a complaint of criminal conduct. It is true that the covering email did not make a specific complaint of criminal conduct, though, given the context, it is difficult to see what else it would be. Regardless, a complaint of criminal conduct is covered by qualified privilege rather than absolute. The circumstances in which Meredith Connell had received and forwarded the emails certainly meant that it did so on an occasion of qualified privilege. This defence could, of course, be defeated by proof of ill-will or improper advantage having been taken of the privileged occasion.

[15] The threshold for ill-will is very high. Mr Rafiq would have to satisfy the Court that Meredith Connell was predominantly motivated by ill-will, or otherwise took improper advantage of the privilege. There could be no tenable factual basis, in light of the content of the emails, for arguing that the primary reason for sending the emails to the Police was ill-will and not genuine concern about Mr Rafiq’s behaviour. Therefore, I am satisfied the Associate Judge was correct to hold that Mr Rafiq had not shown any basis that an argument of ill-will or improper advantage could succeed.

[16] The only error that Mr Rafiq appeared to assert in relation to this aspect of the decision was that:

The Court failed to take account of right and/or invasion to privacy. Other confidential and private emails were referred to the NZ Police for “criminal assessment liabilities” and invasion into the applicant’s “right to privacy”.

[17] Mr Rafiq’s characterisation of the “unreasonable interception” of the emails as a breach of his rights under s 14 of the New Zealand Bill of Rights Act 1990 and a breach of his right to privacy appears not to have been argued before the Associate Judge. It has no merit; these were emails that Mr Rafiq himself published by sending them to Meredith Connell. The firm was entitled to forward them to the police. No breach of NZBORA rights arises and there was no error by the Associate Judge in not considering this possibility.

Meredith Connell’s email dated 20 March 2013

[18] On 20 March 2013 Mr Rafiq sent an email to Ms Longdill, then an associate at Meredith Connell (now a partner). It was unrelated to any legal matter and could fairly be described as bizarre. Mr Flanagan, a partner of Meredith Connell, responded on Ms Longdill’s behalf:

I am in receipt of your email below to Ms Longdill. I am her supervising partner at Meredith Connell. The email below is plainly inappropriate. Any future emails of this nature will be forwarded to the police.

[19] There was some dispute over the extent of publication; Mr Rafiq asserted that it was forwarded to an unspecified number of people inside Meredith Connell. Meredith Connell maintained that only two people received it, these being Mr Moore (the then Crown Solicitor) and Ms Longdill herself. The emails produced in evidence support Meredith Connell’s account, with Ms Longdill circulating a copy of Mr Rafiq’s email to a number of staff but Mr Flanaghan’s email shown as being circulated only to Mr Moore and Ms Longdill.

[20] The Associate Judge considered that no criticism could be made of Ms Longdill for passing the matter to her supervising partner, nor of Meredith Connell for responding in the manner it did. The Associate Judge considered that, although the email was capable of a defamatory meaning, the defence of honest

opinion available under ss 9 and 10 of the Defamation Act would apply. Further, circulation of the email at least to Mr Moore and Ms Longdill was protected by qualified privilege and in the circumstances there was no tenable prospect of that defence being defeated.

[21] Mr Rafiq submitted that:

Any common law immunity or privileges cannot subsist to the other allegations framed by the respondent in its various submissions since they were abusive and insulting.

The respondent failed to justify the emails that were referred to the New Zealand Police for criminal conduct. In any event, the emails largely related to the applicant’s defamation proceedings and thus cannot be linked to some criminal activities. Further it is not the job of a law firm to intercede into personal affairs of the applicant.

[22] These submissions do not show any error by the Associate Judge.

Result

[23] Mr Rafiq has not shown any error in the Associate Judge’s reasoning or

decision. The application for review is dismissed.

[24] Meredith Connell seeks costs on the same terms as were allowed by Associate Judge Bell in the strike-out, namely on a 2B basis with a 50% uplift. Mr Rafiq did not address me on costs. His application for review was completely lacking in merit. The Judge correctly applied well established principles. I consider costs on a 2B basis with a 50% uplift to be appropriate and make that award in Meredith Connell’s favour.

[25] Mr Rafiq also filed an application for leave to appeal my decision, in the event that it was unfavourable to him. My determination of the review application is final unless I give leave or, if I refuse leave the Court of Appeal gives special leave to appeal it.⁷ The principles to be applied in considering whether a matter justifies a second appeal are well established. The proposed appeal does not raise any question

_{of law or fact that is capable of serious argument. There is no interest involved that}

⁷ Judicature Act 1908 s 26P(1(AA).

justifies the cost of a second appeal. The resources of the Court of Appeal ought not be wasted on matters that lack merit or have no particular interest beyond the immediate parties. I have already indicated that Mr Rafiq’s application for review had no merit. He did not raise any arguments that could possibly justify a second

_{appeal. The application for leave is refused.}

P Courtney J