RAFIQ v THE DIRECTOR OF CIVIL AVIATION AUTHORITY OF NEW ZEALAND [2015] NZHC 3049

RAFIQ v THE DIRECTOR OF CIVIL AVIATION AUTHORITY OF NEW ZEALAND [2015] NZHC 3049 [3 December 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-000015[2015] NZHC 3049BETWEEN RAZDAN RAFIQApplicantAND THE DIRECTOR OF CIVIL AVIATIONAUTHORITY OF NEW ZEALANDRespondentCIV-2015-404-002709BETWEEN RAZDAN RAFIQApplicantAND IMMIGRATION NEW ZEALANDRespondentCIV-2015-404-002710BETWEEN RAZDAN RAFIQApplicantAND THE DIRECTOR OF THE CIVILAVAIATION AUTHORITY OF NEWZEALANDRespondentCIV-2015-404-002766BETWEEN RAZDAN RAFIQApplicantAND ATTORNEY-GENERAL OF NEWZEALANDRespondentCIV-2015-404-002767BETWEEN RAZDAN RAFIQApplicantAND THE DIRECTOR OF THE CIVILAVAIATION AUTHORITY OF NEWZEALANDRespondentCIV-2015-404-002832BETWEEN RAZDAN RAFIQApplicantAND THE SECRETARY FOR THEDEPARTMENT OF INTERNALAFFAIRS OF NEW ZEALANDRespondentHearing: (On the papers)Judgment: 3 December 2015JUDGMENT OF PALMER JSummary[1] Mr Razdan Rafiq has, with his consent, been declared a vexatious litigant under s 88B of the Judicature Act 1908 (the Act). He has sought leave to file 30 civil proceedings against various parties on various grounds. Under s 88B(2) I decline leave in relation to all of the proposed proceedings as I am not satisfied that any is not an abuse of process of the Court and I am not satisfied that there is a prima facie ground for any of them.Background[2] On 27 May 2015 Wylie J made an order under s 88B(1) of the Act that no civil proceeding shall, without leave of the High Court, be instituted by Mr Rafiq inany Court. Mr Rafiq had formally withdrawn his statement of defence to the application for this order, had accepted the allegations, and had requested that Wylie J make the order declaring him to be a vexatious litigant under s 88B.[3] Accordingly, under s 88B(2) of the Act, leave may only be granted by the Court to Mr Rafiq to institute civil proceedings if the Court thinks fit and leave"shall not be granted unless the Court or Judge is satisfied that the proceeding is notan abuse of the process of the Court and that there is prima facie ground for theproceeding".Applications for leave[4] Mr Rafiq has filed in the Court applications for leave to commence proceedings in relation to a number of proposed defendants on a number of proposed grounds. The applications, with accompanying draft Statements of Claim, were filed on the following dates in 2015: 6 November; 9 November; 11 November; 23 November; 27 November (12 applications); and 2 December (14 applications).[5] The format of each application is the same, submitting that the proceedings are not vexatious, have prima facie merit, that there will be substantial miscarriage of justice if leave is declined, there will be no prejudice to the respondent if the order is granted and leave is in the interest of justice.[6] I am aware that there is a risk that the filing of so many claims by a litigant who has been declared vexatious may lead a court to presume that all proposed claims by the applicant are unmeritorious. To guard against this risk I have carefully reviewed each one on its merits.[7] I am not satisfied that any of the proposed proceedings is not an abuse of process of the Court and I am not satisfied that there is a prima facie ground for any of the proposed proceedings. Indeed, the volume of unmeritorious applications itself is an abuse of the process of the Court. In relation to the lack of a prima facie ground for the proposed proceedings:(a) Except for one, all of the proposed defamation proceedings (the proceedings numbers ending in 15, 2709, 2710, 2767, 2832 and those filed on 2 December) concern statements made to those who have a right or need to know the information communicated, so the claims would undoubtedly be defeated by the defence of qualified privilege even if honest opinion was not made out. Other defences may also be available in some proposed proceedings, such as absolute privilege in relation to statements made in Court.(b) The other defamation proceeding (one of those proposed against APN NZ Ltd under application ending 2832) complains that the applicant was defamed as being a vexatious litigant (as do some of the other proposed proceedings). The applicant's agreement that he be sodeclared by the High Court means that the defence of truth or honest opinion would inevitably succeed.(c) Other proceedings (that ending in 2766 and that against the Dave Oceanic Hostel Ltd filed on 2 December 2015) disclose no cause of action that is actionable at law in the High Court (though the applicant may be able to complain to the Tenancy Tribunal or Privacy Commissioner) and another (against the Commissioner of Police, filed under application ending 2832) is not accompanied by a draft Statement of Claim so its nature cannot be determined.................Palmer J