Rafiq v District Court at Manukau [2018] NZHC 2 (12 January 2018)

Last Updated: 12 January 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000042 [2018] NZHC 2

UNDER	the New Zealand Bill of Rights Act 1990 and Judicature Act 1908
IN THE MATTER OF	Criminal Procedure Act 2011. In the matter of a claim.
BETWEEN	RAZDAN RAFIQ Plaintiff
AND	DISTRICT COURT AT MANUKAU Defendant

Hearing:	On the papers
Judgment:	12 January 2018

_{JUDGMENT OF HINTON J}

This judgment was delivered by Justice Hinton on 12 January 2018 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

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

RAFIQ v DISTRICT COURT AT MANUKAU [2018] NZHC 2 [12 January 2018]

Introduction

[1] In May 2015 Mr Razdan Rafiq was declared a vexatious litigant under s 88B

of the Judicature Act 1908.¹

[2] As a declared vexatious litigant, Mr Rafiq requires leave to commence proceedings.

[3] Mr Rafiq has applied for leave to commence proceedings against the District Court at Manukau. He seeks a declaration that the District Court breached his rights under the New Zealand Bill of Rights Act 1990, along with damages of $50 million.

The Claim

[4] The draft statement of claim filed with the application seeking leave, asserts that on 27 September 2017 Mr Rafiq filed a notice of appeal in the Manukau District Court against a decision of a Justice of the Peace. The decision related to four charges, two each for failing to affix a current licence and having no evidence of a vehicle inspection.

[5] Mr Rafiq alleges the Registrar of the District Court failed to file the notice of appeal. The draft claim states he filed, “at the same time”, an application to review the Registrar’s failure to do so. Presumably Mr Rafiq filed the review application after he determined the notice of appeal had not been filed, but dates are not specified.

[6] Mr Rafiq claims the District Court failed to process both applications, for which the declaration and exemplary damages are sought.

Discussion

[7] Mr Rafiq must satisfy the Court that there is a “prima facie ground for the proceeding” and that the claim is not an abuse of the process of the Court.² A “prima

_{facie case” is a “serious, as opposed to a speculative case”.}³

¹ Attorney-General v Rafiq [2015] NZHC 1153.

² Judicature Act 1908, s 88B(2); since repealed by the Senior Courts Act 2016, however the threshold to grant leave under the Judicature Act has continued to be applied after its repeal – see Rafiq v Commissioner of New Zealand Police [2017] NZHC 2739.

³ Rafiq v Attorney-General [2017] NZHC 1852 at [4].

[8] The High Court has on several occasions refused leave for Mr Rafiq to file applications. It is sufficient to refer to two occasions.

[9] In August 2017, Courtney J refused leave to claim against six public-body defendants. Several aspects of the claim were similar to the present application and damages in excess of $65 million were sought. The first cause of action related to a claim that Mr Rafiq had not been provided a fixture date to appeal a decision of a Justice of the Peace, to the High Court. This decision also related to traffic offences. Courtney J noted that Mr Rafiq had an automatic right to appeal to the District Court, but did not have an automatic right of second appeal to the High Court. In any event it was doubtful the pleading could be made out.⁴ The Judge also considered that the lack of particulars or evidence in the form of an affidavit in support meant the other causes of action failed to reach the requisite threshold.⁵

[10] Some months later, in November 2017, van Bohemen J refused leave for Mr Rafiq to claim against the Commissioner of the New Zealand Police.⁶ This was another multi-million dollar damages claim, for $230 million, based in defamation. It was declined for an absence of particulars and evidence, which made it impossible to assess whether there was any merit to the claim.⁷

[11] The deficiencies in those cases are also present in Mr Rafiq’s current application. Though he has filed an affidavit in support, it contains no information that cannot be found in the statement of claim. He has reproduced a copy of the notice of appeal he alleges he filed in the District Court (though not in the form of a standalone document). No information is provided about the nature of the charges Mr Rafiq wishes to appeal. Nor has he provided evidence of the application to review the Registrar’s alleged failure. As with the application before Courtney J, it is unclear whether Mr Rafiq was seeking to appeal the decision of the Justice of the Peace, to the District Court or the High Court. For these reasons, there is insufficient information for me to be satisfied that Mr Rafiq has a prima facie case. In addition, the claim,

_{especially for exemplary damages (of $50 million or any sum) for alleged failure by a}

⁴ At [8].

⁵ At [10].

⁶ Rafiq v Commissioner of New Zealand Police [2017] NZHC 2739.

⁷ At [10].

Court Registrar to file a document, self-evidently cannot fall into the category of “a serious case” and, in any event, is an abuse of the Court process.

Decision

_{[12] The application is refused.}

Hinton J