Rafiq v Chief Executive of the Ministry of Business, Innovation and Employment Immigration NZ & Department of Labour

[2013] NZHC 2731

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004475 [2013] NZHC 2731

UNDER  the Defamation Act 1992

IN THE MATTER             of an application for review of the registrar's decision

BETWEEN  RAZDAN RAFIQ Intending Plaintiff

ANDTHE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT- IMMIGRATION NZ & DEPARTMENT OF LABOUR

Intending Defendant

Hearing:                   (On the papers) Judgment:  18 October 2013

JUDGMENT OF VENNING J

This judgment was delivered by me on 18 October 2013 at 5.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Copy to:            The Plaintiff

The Ministry of Business, Innovation & Employment, Auckland

RAFIQ v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT-IMMIGRATION NZ & DEPARTMENT OF LABOUR [2013] NZHC 2731 [18 October 2013]

[1]      The  Registrar  has  referred  this  application  for  review  of  the  Registrar’s

decision to me as List Judge.

[2]      Mr Rafiq purported to file a statement of claim dated 16 September 2013 alleging defamation against the Chief Executive of the Ministry of Business, Innovation and Employment (the proposed proceedings).

[3]      In the proposed proceedings Mr Rafiq seeks a declaration and damages in the sum of $3 million.  He also intends to file an accompanying application for summary judgment of his claim.

[4]      Given there are existing proceedings before the Court in which Mr Rafiq sues the Chief Executive of the Ministry of Business Innovation and Employment in defamation  the  Registrar  was  not  prepared  to  accept  the  proposed  proceedings without referring them to a Judge.

[5]      I have reviewed the proposed proceedings and also the existing proceedings before this Court CIV-2013-404-000002 (the existing proceedings).

[6]      On  17  May 2013 Priestley J  made  an  order  in  the existing proceedings granting leave to  Mr Rafiq  to  bring his  substantive claim  out  of time but  also directing him to pay $6,368 to the Registrar of this Court within 20 working days (by

17 June) as security for the defendant’s costs.

[7]      Mr Rafiq failed to pay security.   On 12 August 2013 I directed that the existing proceedings be stayed pending payment of the security ordered by Priestley J.  In addition I directed the Registrar was not to accept any more documents from the plaintiff on the file until security was paid.   Leave was also reserved to the defendant to file an application to have the plaintiff’s proceedings dismissed for failure to pay security.

[8]      In the meantime Mr Rafiq had filed an appeal with the Court of Appeal from Priestley J’s decision.  He applied for fee waiver.  That was declined by the Registrar of that Court.  In a judgment delivered on 20 June 2013 Stevens J of the Court of

Appeal confirmed the Registrar’s decision to decline to waive the payment of the

filing fee.

[9]      The position at present therefore is that the existing order of Priestley J requiring security in the defamation proceedings and the order of this Court staying Mr Rafiq’s defamation proceedings remain in full force and effect.

[10]     I have reviewed the allegations in the proposed proceedings and compared them with the allegations in the existing proceedings.  While the allegations refer to different examples of alleged defamatory statements by the defendant they are based on Mr Rafiq’s review of his file with the intended defendant, and arise out of his dealing with the defendant, just as the allegations in the existing proceedings do.  To the extent there is any merit in the allegations in the proposed proceeding they could and should have been raised in the existing proceedings.

[11]     If two actions are commenced with the second asking for relief which could have been obtained in the first, the second is prima facie vexatious and an abuse of process.   It will be stayed or struck out.1    The proper action where the first set of proceedings are stayed, particularly for the reasons given in this case, is to apply to have the stay lifted.  In this case the stay could be lifted by payment of the security. Mr Rafiq could then file an amended statement of claim in the existing proceedings to include the further allegations.  It is apparent that Mr Rafiq proposes to pursue the proposed proceedings to avoid and overcome the previous order of this Court staying

the existing proceedings until he pays security for costs.  To allow that would be to allow an abuse of process.

[12]     For  those  reasons  I  confirm  the  Registrar’s  decision  not  to  accept  these

proceedings for filing. They are to be returned to Mr Rafiq.

Venning J

1      Otis Elevator Co Ltd v Linnel Builders Ltd (1991) 5 PRNZ 72 (HC);  Earl Poulett v Viscount Hill [1893] 1 Ch 277; Williams v Hunt [1905] 1 KB 512; and Buckland v Palmer [1984] 3 All ER 554.