RAFIQ v THE SECRETARY FOR THE DEPARTMENT OF INTERNAL AFFAIRS OF NEW ZEALAND [2014] NZHC 2064

RAFIQ v THE SECRETARY FOR THE DEPARTMENT OF INTERNAL AFFAIRS OF NEW ZEALAND [2014] NZHC 2064 [29 August 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-001988[2014] NZHC 2064UNDER the Defamation Act 1992BETWEEN RAZDAN RAFIQPlaintiffAND THE SECRETARY FOR THEDEPARTMENT OF INTERNALAFFAIRS OF NEW ZEALANDDefendantHearing: 25 August 2014Counsel: Plaintiff in personAR Longdill and O Klaassen for DefendantJudgment: 29 August 2014JUDGMENT OF ASHER JThis judgment was delivered by me on Friday, 29 August 2014 at 11ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Meredith Connell, Auckland.Copy to:Plaintiff.Introduction[1] In this proceeding the plaintiff, Razdan Rafiq, applies to bring defamationproceedings out of time. The defendant, the Secretary for the Department of InternalAffairs of New Zealand, applies to strike out the proceeding. The matter hasproceeded today after the Duty Judge list with the agreement of both parties.[2] The proceedings relate to statements in a communication made within theDepartment of Labour on 10 March 2008, over six years ago. Mr Rafiq claims thathe only became aware of the information which is the basis for the claim on 14 July2014.[3] Mr Rafiq has not been declared a vexatious litigant. However, he wasdescribed as having issued a vexatious proceeding by Associate Judge Bell in Rafiq vMeredith Connell.1 In that judgment Associate Judge Bell set out 25 decisions thathave been delivered in proceedings filed by Mr Rafiq since 1 November 2012,largely against Government institutions or personnel. These proceedings haveincluded Court of Appeal and Supreme Court appeals.[4] In an earlier proceeding Rafiq v The Secretary for the Department of InternalAffairs of New Zealand (the 1385 proceeding),2 Mr Rafiq brought a claim indefamation against the present defendant. He stated that a large number of internalemails and memoranda issued in 2008 and 2009, copies of which he had obtained,defamed him. Mr Rafiq was claiming damages of $1 million and exemplarydamages of $1 million. He also had other claims against other Government entitiesand persons.[5] The 1385 proceedings referred to documents which had originated fromdepartmental personnel, including one listed at exhibit C which contained thefollowing information:This client has been using a fictional "twin brother" called MohammedRazdan KHAN to attempt to avoid various criminal charges made against1 Rafiq v Meredith Connell [2014] NZHC 1597 at [47] and [53].2 Rafiq v The Secretary for the Department of Internal Affairs of New Zealand HC Auckland CIV- 2014-404-1385.him. When caught, his MO has been to claim, later, that his "twin brother"had done it and was giving his details to the police instead of his own. Hispolice record includes three separate driving offences and disorderlybehaviour. He has admitted to the police that he did not hold a drivinglicence despite driving to his flying school for the last year and a half.[6] In the present proceeding the alleged defamatory statement is pleaded asfollows:We plan to interview RAFIQ at the Auckland Office concerning hisundeclared names changes and ask him to provide an explanation concerninghis 'evil twin brother'.I wonder whether he has racked up any unpaid loans or finance. We have found that people who have multiple name changes tend to do this.Strike out[7] Rule 15.1(1) of the High Court Rules provides:15.1 Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.[8] The key issue that arises in this application is whether Mr Rafiq's proceedingis an abuse of the process of the Court. In this regard it was stated by Richardson Jin Moevao v Department of Labour in relation to the Court's inherent jurisdiction tostay or dismiss a procedure for the abuse of the process of the Court:3The concern is with conduct on the part of a litigant in relation to the casewhich unchecked would strike at the public confidence in the Court's processes and so diminish the Court's ability to fulfil its function as a Court of law. As it was put by Frankfurter J in Sherman v United States 356 US 369, 380 (1958):Public confidence in the fair and honourable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.3 Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.[9] In my assessment the issue of abuse of procedure arises in two respects, of re-litigating the same issue and improper or collateral purpose.Abuse of procedure – re-litigating the same issue[10] The 1385 proceeding was specifically directed to material that circulated inthe Department of Labour concerning Mr Rafiq in 2008 and 2009, as well as othermaterial relating to the Inland Revenue Department in 2011. The claim wasexpressed to be a defamation claim.[11] The particular communication that is the subject of these proceedings was notspecified in the 1385 proceedings. However, the statement quoted at [6] aboveconcerned similar issues and was sent on 3 March 2008. The statement the subjectof these proceedings was sent on 10 March 2008.[12] There is a difference in the statements. One refers to Mr Rafiq using a fictional twin brother and the other to seeking an explanation concerning his "eviltwin brother". The 10 March 2008 email also refers to the issue of whether Mr Rafiqhas "racked up any unpaid loans or finance". This question is not asked in the3 March 2008 communication.[13] There is no suggestion that Mr Rafiq did not have a copy of the 10 March 2008 email when he issued the present proceedings on 11 August 2014. The 1385proceedings were issued on 10 June 2014.[14] The 1385 proceedings were struck out on 5 August 2014, and theseproceedings filed six days later. Venning J struck the 1385 proceeding out becauseMr Rafiq had blatantly failed to comply with orders of the Court with full knowledgeof the consequences. Venning J had stated:4The unless order was plain in its terms. In the circumstances the unlessorder took effect. It remains in effect. The current proceedings are stuckout. The Registry is not to accept any documents of a similar nature fromMr Rafiq relating to the purported claim raised in these proceedings.4 Rafiq v The Secretary for the Department of Internal Affairs of New Zealand HC Auckland CIV- 2014-404-1385, 5 August 2014 (Minute) at [9].[15] Mr Rafiq proceeded to file a claim of a similar nature. That has happened,and I do not consider it fruitful to examine why or how, although I note that theclaim does not appear to have been referred to Venning J. If Mr Rafiq had wished toclaim in relation to the email of 10 March 2008, he should have made that complaintwhen he filed the 1385 proceeding. He could be reasonably expected to put forwardhis whole case in the 1385 proceedings. He cannot now, having been struck out inthe original proceedings, produce another document arising from the same context,and make another attempt to litigate what is in essence the same issue.[16] In this respect what is known in the United Kingdom as Henderson vHenderson abuse of process arises. In Henderson v Henderson Sir James WigramVC stated:5[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open thesame subject of litigation in respect of matter which might have beenbrought forward as part of the subject in contest, but which was not broughtforward, only because they have, from negligence, inadvertence, or evenaccident, omitted part of their case. The plea of res judicata applies, exceptin special cases, not only to points upon which the court was actuallyrequired by the parties to form an opinion and pronounce a judgment, but toevery point which properly belonged to the subject of litigation, and whichthe parties, exercising reasonable diligence, might have brought forward atthe time.(emphasis added)[17] The rule in Henderson v Henderson was explained in this way by the English Court of Appeal in Barrow v Bankside Agency Ltd:6The rule in Henderson v Henderson 3 Hare 100 is very well known. Itrequires the parties, when a matter becomes the subject of litigation betweenthem in a court of competent jurisdiction, to bring their whole case beforethe Court so that all aspects of it may be finally decided (subject, of course,to any appeal) once and for all. In the absence of special circumstances, theparties cannot return to the Court to advance arguments, claims or defenceswhich they could have put forward for decision on the first occasion butfailed to raise. The rule is not based on the doctrine of res judicata in anarrow sense, nor even on any strict doctrine of issue or cause of actionestoppel. It is a rule of public policy based on the desirability, in the generalinterest as well as that of the parties themselves, that litigation should not5 Henderson v Henderson (1843) 3 Hare 100, 67 ER 319 (Ch) at 115, 319.6 Barrow v Bankside Agency Ltd [1996] 1 WLR 257 (CA).drag on for ever and that a defendant should not be oppressed by successivesuits when one would do. That is the abuse at which the rule is directed.[18] What was stated in Henderson v Henderson is now seen as different from res judicata or issue estoppel. As was stated by Lord Bingham in Johnson v Gore Wood & Co:7It may very well be that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram VC made which was addressed to res judicata. But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppeland issue estoppel, has much in common with them. The underlying publicinterest is the same: that there should be finality in litigation and that a partyshould not be twice vexed in the same matter. This public interest isreinforced by the current emphasis on efficiency and economy in the conductof litigation, in the interests of the parties and the public as a whole. Thebringing of a claim or the raising of a defence in later proceedings may,without more, amount to abuse if the Court is satisfied (the onus being on theparty alleging abuse) that the claim or defence should have been raised in theearlier proceedings if it was to be raised at all.[19] Lord Bingham made it clear that what is involved is a broad merits based judgment which takes into account the public and private interests involved, and thefacts of the case. The crucial question is whether the party is misusing or abusingthe process of the Court by seeking to raise an issue that could have been raisedbefore. Henderson v Henderson is still relied on by New Zealand Courts.8[20] This approach is adopted in Australia. As Murphy J put it in Port ofMelbourne Authority v Anshun Pty Ltd:9The issue now sought to be raised was plainly open to be agitated in the previous litigation. The judgment in that case is inconsistent with a judgment now sought by the plaintiff.[21] While the alleged defamatory statements in the two proceedings do notexactly correspond, they arise out of the same period of time and dealings with thedefendant. The present claim should have been raised in the 1385 proceedings.Mr Rafiq returns to Court to advance arguments that he could have put forward for7 Johnson v Gore Wood & Co [2001] 1 All ER 481 at 498–499.8 Beattie v Premier Events Group Ltd [2014] NZCA 184 at [43]; Contact Energy Ltd v Attorney- General [2009] NZCA 351 at [85]–[87]; Commissioner of Inland Revenue v Bhanabhai [2007] NZLR 478 (CA) at [58]–[60]; Lai v Chamberlains [2007] 2 NZLR 7 (SC) at [59].9 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 605.decision in the 1385 proceedings, but failed to raise. A party cannot bring a caserelating to a certain party, certain sequences of conduct, and a certain timeframe, andthen when it fails bring another case raising another similar complaint relating to thesame party, the same sequence and the same timeframe. Parties must bring theirwhole case to the Court so there can be finality of litigation.[22] I am satisfied that Mr Rafiq is deliberately misusing the process of the Court by raising an issue that he could have raised before in the 1385 proceeding. Thisview is reinforced by other indicia as to his motives, to which I will now refer.Abuse of procedure – improper / collateral purpose[23] It was stated in the High Court of Australia in Williams v Spautz:10 court proceedings may not be used or threatened for the purpose ofobtaining for the person so using or threatening them some collateraladvantage to himself, and not for the purpose for which such restrainingorders are properly designed and exist; and a party so using or threateningproceedings will be liable to be held guilty of abusing the process of thecourt and therefore disqualified from invoking the powers of the court byproceedings he has abused.[24] Proceedings brought with an improper motive which seek a collateraladvantage beyond that which could legitimately be expected from a court proceedingmay be an abuse of process.11 Nevertheless I accept that a stay will not be granted todebar a litigant from pursuing a genuine cause of action that it seeks to havedetermined where there is also an ulterior purpose as a desired by-product. Theulterior purpose must dominate to a degree where the proper conduct of the litigationis subsumed. The onus is on the party seeking to show that the proceeding isbrought from improper purpose.[25] In this case there is the clearest possible evidence of Mr Rafiq's improperpurpose, being the statements that he has made in his application for leave. In theapplication for leave he stated after having set out his grounds:10 Williams v Spautz (1992) 174 CLR 509.11 Goldsmith v Sperrings Ltd [1977] [1977] 1 WLR 478 (CA); Wallersteiner v Moir [1974] 1 WLR 991 (CA).Further the applicant shall file multiple litigations against the respondent.The litigations shall also encompass the Internal Affairs Minister and thePrime Minister and appeal shall follow right to the Supreme Court. Theprocess shall be repeated multiple times until and unless justice is secured.Those who shall resist any proceedings and or stand in the path of theapplicant shall face series of litigations.[26] Mr Rafiq had also, in the copies of the documents that he served (which werea very faded photocopy that could not be easily read, and missing variousattachments), stated:If you resist these proceedings then I shall feed your department withmultiple litigation including the Minister.[27] These statements explicitly show an intention on Mr Rafiq's part to litigateagainst the Secretary and other government entities, not because he wishes to have acause of action determined, but because he wishes to harass those persons. Thisbecomes all the more clear when it is considered against the background of the 25decisions in relation to hopeless proceedings issued since 2012. Mr Rafiq hasconfirmed that he is presently a bankrupt. He is in my assessment issuingproceedings because they will vex and inconvenience various government persons.He also referred in his oral submissions to a motive to through these proceedingsultimately 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, hasgone through the same set of documents and timeframe that led to the 1385proceedings, found an email not previously referred to and used this as the basis of anew proceeding to maintain his campaign. The court processes were not designedfor this purpose. To use them to harass and achieve a collateral gain in this way is anabuse of procedure.Conclusion[29] I conclude that this proceeding is an attempt to re-litigate complaints thathave already been determined in the 1385 proceedings. They are not brought todetermine a civil claim, but to vex and harass. They are an abuse of procedure.Result[30] The proceeding is struck out...Asher J