RAFIQ v THE COMMISSIONER OF NZ POLICE [2017] NZHC 2739

RAFIQ v THE COMMISSIONER OF NZ POLICE [2017] NZHC 2739 [8 November 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-002601[2017] NZHC 2739UNDER The New Zealand Bill of Rights Act 1990,Defamation Act 1992, Senior Courts Act2016BETWEEN RAZDAN RAFIQPlaintiffAND THE COMMISSIONER OF NEWZEALAND POLICEDefendantHearing: On the papersJudgment: 8 November 2017JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on Wednesday, 8 November 2017 at 4:45 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Mr Rafiq seeks leave to file a proceeding against the Commissioner of Police.In his draft statement of claim Mr Rafiq alleges the Commissioner has defamed himin various circumstances dating back to 2007 and seeks compensatory damages of $90million, aggravated damages of $70 million and exemplary damages of $70 million.[2] Because Mr Rafiq has been declared a vexatious litigant pursuant to s 88B ofthe Judicature Act 1908 (Judicature Act),1 he requires the leave of the court before hecan file any proceeding. The fact that s 88B of the Judicature Act has been repealedby the Senior Courts Act 2016 (Senior Courts Act) does not affect the validity ofactions taken under the section before it was repealed. S 17(1) of the InterpretationAct provides:17 Effect of repeal generally(1) The repeal of an enactment does not affect—(a) the validity, invalidity, effect, or consequences of anything doneor suffered:(c) an existing status or capacity:(e) the previous operation of the enactment or anything done orsuffered under it.[3] Accordingly, Mr Rafiq's status as a vexatious litigant stands.Legal test[4] Prior to its repeal, s 88B(2) of the Judicature Act provided that a court or judgeshall not grant leave to a person previously declared to be a vexatious litigant: unless the court or judge is satisfied that the proceeding is not an abuse ofthe process of the court and that there is prima facie ground for the proceeding.1 Attorney-General v Rafiq [2015] NZHC 1153[5] As Courtney J discussed in her judgment of 4 August 2017 declining an earlierapplication by Mr Rafiq for leave to file a different proceeding,2 it has been acceptedthat the definition of "prima facie case" in Spiller Butterworths New Zealand LawDictionary is apposite for assessing what constitutes "a prima facie ground" for thepurposes of s 88B(2) of the Judicature Act. That definition provides that a prima faciecase is:3A serious, as opposed to a speculative case.A litigating party is said to have a prima facie case where the evidence issufficiently strong for his or her opponent to be called to answer it.[6] For the sake of completeness, I note that s 88B of the Judicature Act has beenreplaced by ss 166-169 of the Senior Courts Act:(a) Section 166 provides that a judge of the High Court may make an orderof limited effect, extended effect or of general effect restricting a personfrom commencing or continuing a civil proceeding;(b) Section 167 provides that a judge may make an order under s166 wherethe judge considers the proceeding to be "totally without merit".4(c) Sections 168 and 169 enable a person subject to an order made unders166 to apply for leave to continue or commence a proceeding. Thesections do not prescribe a threshold that must be met when a personsubject to an order made under s 166 seeks leave to commence aproceeding.[7] While the Senior Courts Act does not provide any specific transitionalarrangements for a person in Mr Rafiq's situation who has been declared vexatiousunder the now repealed s 88B of the Judicature Act, it is appropriate to have regard tothese new provisions when considering Mr Rafiq's application for leave. In this2 Rafiq v Attorney-General & Ors [2017] NZHC 1852.3 Peter Spiller New Zealand Law Dictionary (8th ed, LexisNexis, Wellington, 2015) at 233.4 Section 167(1)-(3).regard, the commentary on s 166 of the Senior Courts Act in McGechan on Procedureis instructive:5Sections 166-169 replace s88B of the Judicature Act 1908 with a new regimethat provides for the High Court to be able to issue three progressively moreextensive orders restricting a person from continuing or commencing civilproceedings.The new regime responds to concerns about the increasing number ofvexatious litigants, who, the Minister of Justice said in her speech introducingthe Bill, "use up valuable court resources to pursue meritless proceedings timeand time again". The Ministry of Justice, in a briefing to the Justice andElectoral Committee, explained that s 88B targeted "only the most seriousvexatious litigants" so orders under it were rarely applied for or granted. The new regime I intended to provide greater flexibility for dealing with theseproblem litigants.Discussion[8] In his draft statement of claim, Mr Rafiq asserts that the Commissioner ofPolice has provided information to other Government departments about Mr Rafiq'shonesty, character and actions. Mr Rafiq alleges this information is false anddefamatory.[9] Mr Rafiq has not provided an affidavit in support of his draft statement of claimto substantiate what precisely that information was, how it was provided, why it wasfalse as Mr Rafiq alleges, and when Mr Rafiq became aware of the Commissioner'sactions in this regard. This last point is important because, on the face of the draftstatement of claim, all of the alleged instances of information being provided by theCommissioner took place between 2007 and 2011. The proceeding Mr Rafiq wishesto bring, therefore, may be outside the limitation periods for defamation actionsprovided in the Limitation Act 2010.6[10] As to the substance of Mr Rafiq's draft statement claim, Mr Rafiq seeks tobring into issue the accuracy of information that the Commissioner has provided tothe Department of Internal Affairs, the (now disestablished) Department of Labour,5 AC Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [SC166.01].6 Pursuant to ss 11 and 15 of the Limitation Act 2010, it is a defence to a money claim for defamationif the claim is filed at least two years after the date of the act or omission on which the claim isbased unless the claimant had "late knowledge" of the claim in terms of s 11 of the Limitation Act.The "late knowledge" period in the case of a claim for defamation is also two years.the Commissioner of Inland Revenue and the Privacy Commissioner. Without furtherinformation it is impossible to assess whether there is any merit to Mr Rafiq'sassertions that the Commissioner has defamed him when the Commissioner has been,it would seem, responding to legitimate inquiries by agencies carrying out theirauthorised functions and responsibilities.[11] Accordingly, Mr Rafiq has not satisfied me that he has "a prima facie" groundfor the proceeding in terms of s 88B(2) of the Judicature Act – that is, a serious asopposed to a speculative case. Moreover, given Mr Rafiq's history, the fanciful sumshe wishes to seek in damages and the fact he has chosen this route rather than forexample, making a complaint under the Independent Police Conduct Authority Act1988, all lead me to conclude that this application is not serious and would be an abuseof the process of the court in terms of s 88B(2) of the Judicature Act. In these respects,the claim is "totally without merit" in terms of s 167 of the Senior Courts Act.Decision[12] The application is dismissed._________________van Bohemen J