RAFIQ v THE COMMISSIONER OF THE NEW ZEALAND POLICE [2014] NZHC 2837

RAFIQ v THE COMMISSIONER OF THE NEW ZEALAND POLICE [2014] NZHC 2837 [14 November 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2014-404-001837[2014] NZHC 2837UNDER the Defamation Act 1992BETWEEN RAZDAN RAFIQApplicantAND THE COMMISSIONER OF THE NEWZEALAND POLICERespondentHearing: 15 October 2014Appearances: R Rafiq (Applicant) in personN Whittington for RespondentJudgment: 14 November 2014(RESERVED) JUDGMENT OF ANDREWS J[Application for leave to commence defamation proceeding out of time]This judgment is delivered by me on 14 November 2014 at 12.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarIntroduction[1] On 22 July 2014, Mr Rafiq filed an application for leave to commence a defamation proceeding against the Commissioner of Police out of time. A draft statement of claim was filed with the application.[2] The application was served on the Commissioner's solicitors on 25 August2014. On 5 September 2014 they applied on behalf of the Commissioner for anorder striking out Mr Rafiq's statement of claim.[3] In a Minute dated 10 September 2014, Venning J recorded that he had raised with counsel the status of the application to strike out, given that leave had not been granted for the proceeding to be commenced. His Honour directed that a notice of opposition was to be filed on behalf of the Commissioner by 17 September 2014. A notice of opposition was filed on 17 September 2014.[4] I share the concern of Venning J as to the Court's jurisdiction to strike out apleading, in respect of which leave has not been given for it to be filed. I have concluded that it is appropriate to consider Mr Rafiq's application for leave, ratherthan the application to strike out.Mr Rafiq's claim[5] In his draft statement of claim, Mr Rafiq alleges that on 10 March 2008 a Police Officer sent an email to an employee of the Department of Internal Affairs, as follows:1Re: RAFIQ Ray Razdan: UpdateThanks for that Bruce. I will be forwarding this on to our investigations unit for looking at. He is a very dodgy man and differnatly needs to be looked at by our end as well.[6] Mr Rafiq alleged that the statements in the email are factually untrue andprima facie defamatory of him. He further alleged that the email is "ongoing" (as it1 Mr Rafiq alleges that the word "differnatly" is intended to be "difficulty". In the context of the email, it may have been intended to be "definitely".remains on the Police electronic database), and that it has caused him emotional distress. Mr Rafiq claimed relief by way of:a. A declaration that the defendant is liable to the plaintiff in defamation.b. Compensatory damages in the sum of $50m.c. Aggravated damages in the sum of $30m.d. Exemplary damages in the sum of $20m.(emphasis as in original)[7] Mr Rafiq filed an amended draft statement of claim on 10 October 2014. The amended draft claim contains the same allegations concerning the email of 10 March 2008. He further alleges that the Department of Internal Affairs has refused to retract the 10 March 2008 email from its system, and that a Police legal adviser had made further defamatory statements in a brief of evidence dated 10 February 2012, prepared for proceedings before the Human Rights Review Tribunal. The amended draft claim contains an amended prayer for relief, in that the amounts claimed as aggravated and exemplary damages are $20 million and $10 million respectively.Relevant statutory provisions[8] Because the proceeding Mr Rafiq seeks to commence is based on a statement alleged to have been made before 1 January 2011, it is governed by the Limitation Act 1950, notwithstanding the repeal of that Act by the Limitation Act 2010.2[9] Section 4(6A) and (6B) of the Limitation Act 1950 provides:4 Limitation of actions in contract and tort, and certain other actions(6A) Subject to subsection (6B) of this section, a defamation action shall not be brought after the expiration of two years from the date on which the cause of action accrued.(6B) Notwithstanding anything in subsection (6A) of this section, any person may apply to the Court, after notice to the intended defendant, for leave to bring a defamation action at2 See Limitation Act 2010, section 59, and Limitation Act 1950, section 2A.any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law (other than the provisions of subsection (6A) of this section), or by any other reasonable cause.[10] A cause of action in defamation accrues when the alleged defamatory statement was published. In the present case, that was on the day on which the email was sent. Accordingly, a defamation proceeding based on a statement made on 10 March 2008 could be commenced without leave at any time before 10 March 2010.[11] Subsection (6B) provides that "any person may apply for leave to bring adefamation proceeding at any time within 6 years from the date on which the cause of action accrued". Mr Rafiq could have applied for leave to bring a defamationproceeding based on the 10 March 2008 email at any time before 10 March 2014. Subsection (6B) does not provide for an application for leave to be made after the period of six years. The application must be made within six years of the date of publication.[12] As Mr Rafiq did not apply for leave to commence a defamation proceeding until 22 July 2014, more than four months outside the period within which he could do so, I doubt that this Court has jurisdiction to entertain an application for leave to commence a proceeding based on the 10 March 2008 email. However, as this point was not raised at the hearing of Mr Rafiq's application for leave, and in light of the reference in Mr Rafiq's amended draft statement of claim to statements in the brief of evidence of 10 February 2012, it is appropriate to consider the application on its merits.Submissions[13] Mr Rafiq submitted that he did not become aware of the 10 March 2008 email until 14 July 2014, when it was disclosed to him in a letter from the Department of Internal Affairs, having not been disclosed in response to earlier requests by Mr Rafiq for disclosure of information held about him. Regarding thelegal advisor's brief of evidence, Mr Rafiq submitted that while he had been awareof it since February 2012, he had been occupied with criminal proceedings, and defamation and judicial review proceedings and subsequent appeals to the Court of Appeal and the Supreme Court.[14] Mr Rafiq further submitted that a notice of opposition to his application for leave, filed on behalf of the Commissioner on 17 September 2014, was out of time and should not be read.[15] Finally, Mr Rafiq submitted that:3The [Commissioner] has a long history of making unfounded damaging and defamatory statements and getting subject to multiple litigations. In perusalof Court's record, it reveals almost six litigations were advanced to date andfuture proceedings are forecast.[16] In his oral submissions, Mr Rafiq submitted that he had issued six proceedings against the Commissioner, and expected to issue more if more material was disclosed to him as a result of his applications to the Privacy Commissioner. Hesaid that it was "time the Commissioner was stopped".[17] On behalf of the Commissioner, Mr Whittington accepted that the notice of opposition had been filed more than ten working days after the application for leave was served, but submitted that it had been filed within the extended time directed by Venning J. He submitted that the Commissioner's application to strike out had beenfiled out of an abundance of caution, following a judgment of Asher J striking out a proceeding in respect of which Mr Rafiq had applied for leave to bring the proceeding out of time.4[18] Mr Whittington further submitted that the grounds on which theCommissioner had applied to strike out Mr Rafiq's draft statement of claim entirelyoverlapped the grounds on which the Commissioner opposed the application for leave. He submitted that leave should not be granted, because Mr Rafiq had already unsuccessfully pursued similar defamation claims against the Commissioner, and the3 Amended interlocutory application on notice for leave to commence defamation proceedings out of time, dated 8 October 2014 at 2.5.4 Rafiq v Secretary for the Department of Internal Affairs of New Zealand [2014] NZHC 2064.proceeding for which Mr Rafiq now seeks leave is frivolous and vexatious, and an abuse of process.Preliminary point: the Commissioner's notice of opposition[19] I do not accept Mr Rafiq's submission that the Commissioner's notice ofopposition should not be read. As Mr Whittington submitted, time was extended for the Commissioner to file a notice of opposition by Venning J in his Minute of 10 September 2014. His Honour directed that a notice of opposition was to be filed by 17 September 2014, and it was filed on that date.Should Mr Rafiq be given leave to commence a proceeding?[20] In Wilson & Horton v Lee, the Court of Appeal summarised the test for determining applications for leave to commence defamation proceedings out of time as follows:5The 2-year limitation period stated in s 4(6A) of the Limitation Act is"subject to subsection (6B)". Under that subsection the Court may grantleave to the intended plaintiff to bring a defamation action within the 2 to 6 year period: if it considers that the delay in bringing the action was occasioned by mistake of fact; or mistake of any matter of law (other than the provisions of subs (6A)— the provision fixing the 2-year limitation period), or any other reasonable cause; and If it thinks it just to do so.The leave can be subject to such conditions (if any) as the Court thinks it just to impose.[21] In the present case, submissions focused on whether it would be just to grant leave. In Hodge v Television New Zealand, the following factors were said to be relevant to the determination whether it was just to grant leave:65 Wilson & Horton v Lee (1997) 11 PRNZ 550 (CA) at 553. (In this case, the application for leave was made seven months after the expiry of the two-year period.)6 Hodge v Television New Zealand (1996) 10 PRNZ 263 (HC) at 269-270. (In this case, the application for leave was made 18 months after the expiry of the two-year period.)(a) whether notice of the intended prosecution had been given;(b) whether the intended defendant was prejudiced as a result of the delay;(c) the merits of the claim; and(d) overall consideration of the justice of the case.[22] Mr Rafiq has issued what can only be described as an extraordinary number of proceedings against various government agencies, including the Commissioner.In a judgment delivered on 22 September 2014 (on Mr Rafiq's application for review of a Registrar's decision to refer proceedings to a Judge before accepting them for filing), Venning J listed 24 proceedings issued by Mr Rafiq in this Court since the beginning of 2013.7 In five of those proceedings (which include the proceedingwhich is the subject of Mr Rafiq's application for leave) the Commissioner is thesole defendant, and in one the Commissioner is the fourth defendant.[23] Mr Rafiq submitted that the previous proceedings are irrelevant, and that the only matters that can be relevant to his application for leave are those which relate directly to the particular subject matter of the proceeding for which leave is sought.I do not accept that Mr Rafiq's previous litigation history is not relevant toconsidering this application for leave.[24] Mr Rafiq has properly been described as using the Court processes for an improper purpose. In his judgment striking out a proceeding issued by Mr Rafiq against Meredith Connell (which firm acted for various government agencies inproceedings involving Mr Rafiq) Associate Judge Bell referred to Mr Rafiq's "litigious nature":8[52] That also appears from the wide range of proceedings that he hasstarted. In this proceeding Meredith Connell has put in evidence copies of decisions of the higher courts in which Mr Rafiq has been a party. They are considerable. I have listed them at the end of this judgment. By and large they show a consistent lack of success by Mr Rafiq, an inability to appreciate7 Application by Razdan Rafiq [2014] NZHC 2291.8 Rafiq v Meredith Connell [2014] NZHC 1597, at [52].that his proceedings are ill-founded and hopeless, and a tendency never totake "no" for an answer. I regard the present proceeding as typical of other proceedings by Mr Rafiq that are pointless and hopeless.[25] In Rafiq v Secretary for the Department for Internal Affairs of New Zealand, Asher J set out statements made by Mr Rafiq in his application for leave to commence a proceeding and said:9[27] These statements explicitly show an intention on Mr Rafiq's part tolitigate against the Secretary and other government entities, not because he wishes to have a cause of action determined, but because he wishes to harass those persons. This becomes all the more clear when it is considered against the background of the 25 decisions in relation to hopeless proceedings issued since 2012. Mr Rafiq has confirmed that he is presently a bankrupt. He is in my assessment issuing proceedings because they will vex and inconvenience various government persons. He also referred in his oral submissions to a motive to through these proceedings ultimately obtain a reversal of a Supreme Court judgment with which he disagrees.[28] It is clear that Mr Rafiq, having had his earlier proceedings struck out, has gone through the same set of documents and timeframe that led to [an earlier proceeding against the Secretary for the Department of Internal Affairs], found an email not previously referred to and used this as the basis of a new proceeding to maintain his campaign. The Court processes were not designed for this purpose. To use them to harass and achieve a collateral gain in this way is an abuse of procedure.[26] In Application by Razdan Rafiq, Venning J said:10[30] Quite apart from the abuse apparent on the face of the current proceedings, Mr Rafiq has himself effectively confirmed his intention to file vexatious proceedings in an attempt to clog the workings of the Court, and to harass the defendants to his proceedings. Previous judgments of the Courtconfirm that to be the position. Mr Rafiq's comments to that effect have been referred to in other proceedings issued by him. [27] His Honour went on to say:11[34] The Court is well aware of Mr Rafiq's right to justice under s 27 [of the (New Zealand Bill of Rights Act 1990), including in particular to bring proceedings against the Crown. The right to justice provided in s 27 is an important right, established through the course of history and enshrined as a fundamental part of our justice system. Any suggestion that it permits Mr Rafiq to act in the way he seeks to act is to trivialise the importance of the right.9 Rafiq v Secretary for the Department for Internal Affairs of New Zealand, above n 4 at [27] and [28].10 Application by Razdan Rafiq, above n 7 at [30].11 At [34] and [35].[35] Further, the resources of this Court are limited. There are genuine litigants whose cases are delayed because of the time and resources applied to deal with these entirely unmeritorious proceedings of Mr Rafiq. Their rights of access to justice are affected if the Court is required to deal with defended strike out and summary judgment applications on Mr Rafiq's files.[28] The comments I have set out above are equally applicable to the proceeding which Mr Rafiq now seeks leave to bring. In his application for leave, and in his oral submissions, Mr Rafiq clearly stated his intention to continue to issue proceedings against the Commissioner. The conclusion that his intention is to continue to harass the Commissioner by issuing proceedings is inescapable.[29] I am not satisfied that it would be just for leave to be given for Mr Rafiq to bring a defamation proceeding against the Commissioner in respect of either the 10 March 2008 email, or the 10 February 2012 brief of evidence.[30] With respect to the 10 March 2008 email, Mr Rafiq did not apply for leave within the period of six years. Further, it is relevant to note that Mr Rafiq was refused leave in a judgment delivered by Courtney J to bring a proceeding against the Commissioner, based on a statement alleged to have been made to theDepartment of Internal Affairs in 2008, that Mr Rafiq was "a habitual liar" and hadcommitted the offence of obtaining by deception.12 The statement in the 10 March 2008 that is alleged to be defamatory, that Mr Rafiq is "a very dodgy man" is to similar effect. Like Courtney J, I am not satisfied that justice requires that Mr Rafiq be given leave to file a defamation proceeding based on the statement, well out of time.[31] Nor am I satisfied that justice requires leave to be given for Mr Rafiq to bring a proceeding based on the brief of evidence. That brief of evidence was presented in evidence to the Human Rights Review Tribunal at its hearing on 11 and 12 April 2012. Paragraphs 17 and 17.1 to 17.3 (set out in Mr Rafiq's amended draft statement of claim) are set out in the Tribunal's decision.13 Plainly, the statements made in the brief of evidence are covered by the absolute privilege that attaches to statements made in evidence in Court proceedings. That privilege is not lost if the brief of12 Rafiq v Commissioner of New Zealand Police [2014] NZHC 814.13 Rafiq v Commissioner of Police [2012] NZHRRT 13 at [23].evidence remains on Police files. Further, Mr Rafiq knew about the brief of evidence at the time, but took no steps. There is no basis on which he could be granted leave to commence a proceeding now.Conclusion[32] I am not satisfied that Mr Rafiq should be given leave to commence this proceeding. To the contrary, I have concluded that the intended proceeding is vexatious, and an abuse of process of the Court, such that leave should be denied.[33] Mr Rafiq's application for leave to commence a proceeding is dismissed.________________________Andrews J