RAFIQ v THE COMMISSIONER OF THE NEW ZEALAND POLICE [2014] NZHC 2074

RAFIQ v THE COMMISSIONER OF THE NEW ZEALAND POLICE [2014] NZHC 2074 [29 August 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-2407[2014] NZHC 2074UNDER THE section 23(5) of the New Zealand Bill ofRights Act 1990BETWEEN RAZDAN RAFIQPlaintiffAND THE COMMISSIONER OF THE NEWZEALAND POLICEDefendantHearing: 18 August 2014Appearances: R Rafiq in personZ Hamil for the defendantJudgment: 29 August 2014JUDGMENT OF THOMAS JThis judgment was delivered by me on 29 August 2014 at 4.00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Solicitors:Crown Law, Wellington.[1] The Commissioner of New Zealand Police seeks security for costs against Mr Rafiq.[2] Mr Rafiq as plaintiff has commenced proceedings against the Commissioner seeking a declaration pursuant to the New Zealand Bill of Rights Act 1990 together with an order for exemplary damages in the sum of $6 million.[3] The statement of claim is the sixth statement of claim in these proceedings which were commenced in May 2013 by way of an application for judicial review. At that stage there were two other defendants and the allegations were wide ranging in nature. Most of the pleading was struck out by Venning J on 28 November 2013.1Mr Rafiq was, however, granted leave to file an amended statement of claim limited to an assault allegation, the subject of the current proceeding, which has now been categorised as an ordinary defended proceeding.[4] Mr Rafiq claims that on 17 April 2012, while in the rear seat of a Police vehicle, he was assaulted by a detective who grabbed his shirt so tightly that Mr Rafiq was unable to breathe and simultaneously punched Mr Rafiq repetitively in the face while Mr Rafiq was handcuffed.[5] The Commissioner denies the allegations.Issues[6] Rule 5.45 of the High Court Rules provides that, if a Judge thinks it is just in all the circumstances, an order for the giving of security for costs can be made if there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.[7] The issues that arise are:[8] Is there reason to believe Mr Rafiq will be unable to pay theCommissioner's costs if Mr Rafiq is unsuccessful in his proceeding?1 Rafiq v Chief Executive Ministry of Business, Innovation and Employment [2013] NZHC 3138.[9] How should the discretion under r 5.45(2) be exercised?[10] What amount of security for costs should be fixed?[11] Should a stay be ordered?Is there reason to believe Mr Rafiq will be unable to pay the Commissioner'scosts if Mr Rafiq is unsuccessful in his proceeding?[12] Mr Rafiq was adjudicated bankrupt on 1 August 2013.[13] Mr Rafiq has been involved in numerous court proceedings. This Court, on several occasions, has recorded that he is impecunious.2[14] Mr Rafiq acknowledged his financial difficulties. He told the Court that, if unsuccessful in the proceedings, costs would be paid but only if so ordered by the Supreme Court. He then said that he was not sure how he would pay any such costs.[15] The issue is Mr Rafiq's inability to pay costs rather than his obviousunwillingness to pay. I am satisfied, however, that Mr Rafiq will be unable to paythe Commissioner's costs if he is unsuccessful in his proceeding.How should this discretion under r 5.45(2) be exercised?[16] The discretion under r 5.45(2) to order the giving of security for costs can be exercised if the Judge thinks it is just in all the circumstances.[17] The guidance of the Supreme Court in AS McLachlan Limited v MEL Network Limited is that the discretion is not to be fettered by constructing"principles" from the facts of previous cases.3 The Court said:4The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect2 Rafiq v Meredith Connell [2014] NZHC 1597 at [58] and Rafiq v Google New Zealand Limited[2014] NZHC 551 at [12].3 AS McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at 751.4 At 752.should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not lightly to be denied.Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over-complicated and unnecessarily protracted.[18] Ms Hamill for the Commissioner submitted that an analysis of the claim shows that it has very little prospect of success at trial. Furthermore, Mr Rafiq is or has been involved in some 25 sets of proceedings over the last two years.5 In MsHamill's submission, this serves to illustrate that the issue of costs is not operating as a discipline. On the contrary, Mr Rafiq continues to litigate irresponsibly, she says. Because he is bankrupt, costs previously awarded against him have not been pursued.[19] In the case of Rafiq v Meredith Connell, Associate Judge Bell described MrRafiq's claim as vexatious and an abuse of process.6 Associate Judge Bell madereference to Mr Rafiq having described himself as a "serial" and "painful" litigant.7[20] While Mr Rafiq tried to make light of that description of himself, saying it was made in a private email when he was joking, he then told the Court that he intends to become a vexatious litigant. Indeed, he threatened extensive litigation against a wide range of individuals within the justice system.[21] Mr Rafiq complained about the delay in the Commissioner making this application, noting that the proceedings were commenced in May 2013. I amsatisfied with the Commissioner's response to this point, that is, that it was necessary first to deal with the Commissioner's application to strike out the claim and the subsequent appeals.[22] Mr Rafiq did, however, emphasise that he considered his case to be a strong one, reiterating the allegation that he had been assaulted by the Police.5 Rafiq v Meredith Connell, above n 2, Shedule.6 At [48].7 At [51].[23] This brings me to the real issue. In the circumstances of this case does the importance of access to justice outweigh the issues raised by the Commissioner?[24] Mr Rafiq says that the Commissioner is using the application for costs as a mechanism designed to avoid scrutiny of police behaviour. He says the Commissioner has a history of denying claims he has brought and of giving false evidence.[25] I have carefully considered the competing allegations in relation to MrRafiq's claim, noting Mr Rafiq's submission that his evidence has not been testedunder oath and that the Court cannot assess the merits of his claim.[26] The issues with Mr Rafiq's case are as follows:The Detective accused of the assault has provided affidavit evidence in these proceedings denying any such assault.8The Detective deposes that Mr Rafiq was thoroughly advised of his rights throughout the process and did not request a lawyer as he wanted to represent himself. Had Mr Rafiq been assaulted as he claims, it is surprising that hewould not avail himself of a lawyer's services immediately after such anassault when given the opportunity.Mr Rafiq alleges the assault took place when he was being driven to the Manukau Police Station. On arrival at the Police Station he was delivered into the care of the custody staff. There is no evidence that Mr Rafiq raised any concerns about the assault with them.Mr Rafiq did not commence these proceedings until May 2013, more than a year after the alleged incident.Mr Rafiq's behaviour on arrest resulted in him being charged with andconvicted of using offensive language. Mr Rafiq appealed against that8 Affidavit of Tobias Jonathon Stallworthy on behalf of the second defendant in opposition to theplaintiff's application for summary judgment dated 3 July 2013.decision. Rodney Hansen J dismissed the appeal, noting that, while Mr Rafiq alleged the Police had been violent, he did not put the allegation to the Detective in cross-examination.9 The Judge concluded there was no basis forquestioning the lower Court's decision to prefer the Detective's evidence.The summary of facts for the offensive language charge reveals there wereindependent witnesses to Mr Rafiq's arrest. To date, there has been noreference to any witnesses who could support Mr Rafiq's version of events.Mr Rafiq has been engaged in two other proceedings involving claims by him about Police Officers either arresting, investigating or prosecuting him.10He has also sued the Auckland District Court including making allegations against a Judge, Registry Staff and a Police Prosecutor.11Mr Rafiq appears to have attempted to use these proceedings as leverage when he suggested he would discontinue the claim if the Crown did not pursue his retrial on a harassment charge. That behaviour causes me to question the veracity of his claim.[27] In light of those considerations, I am satisfied that the prospect of success of the claim is slim. It is just in all the circumstances to order security for costs.What amount of security for costs should be fixed?[28] The Commissioner estimates that, if the claim is successfully defended, his scale costs on a 2B basis would be approximately $28,000. The Commissioner considers that the provision of roughly one third of scale costs or $10,000 is reasonable in the circumstances.[29] The Commissioner points out that the schedule does not include the costsassociated with the previous steps in the proceedings, including Mr Rafiq'sunsuccessful attempt to pursue the interlocutory appeal to the Supreme Court.9 Khan (aka Rafiq) v Police [2013] NZHC 169.10 Rafiq v Commissioner of New Zealand Police [2014] NZHC 814 and Rafiq v Commissioner of New Zealand Police [2014] NZHC 813.11 Rafiq v Auckland District Court [2013] NZHC 2640.[30] The claim involves a factual finding as to whether the alleged assault occurred. To that extent it will be a relatively straight forward proceeding. If the Judge is satisfied that the assault took place, then an assessment of damages is required. The Commissioner's application is on the basis of costs on a 2B basis.That may be a little generous in the circumstances.[31] I am also mindful that, whilst the prospects of success might be slim, the Court must consider what it thinks fit in all the circumstances.[32] I do not propose to set security for costs at an unachievable level. In my assessment an order in the amount of $5,000 is appropriate. That is not so high as tobe prohibitive. However, in light of Mr Rafiq's history with the courts, it is in myassessment a reasonable sum.Should a stay be ordered?[33] The usual course is for a stay to be granted pending the order for security being met. There is no reason to depart from this practice.[34] The proceeding will be stayed until the security ordered is given.Decision[35] I make an order for security for costs in the sum of $5,000.[36] The proceeding is stayed until Mr Rafiq pays the sum into Court._______________________Thomas J