Adamson v Judicial Conduct Commissioner
[2023] NZHC 3888
•22 December 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-151
[2023] NZHC 3888
UNDER the Judicial Review Procedure Act 2016, the Fair Trading Act 1986, the New Zealand Bill of Rights Act 1990 and the Privacy Act 2020 IN THE MATTER
of a decision of the Judicial Conduct Commissioner dated 30 March 2023
BETWEEN
IAN ADAMSON
Applicant
AND
THE JUDICIAL CONDUCT COMMISSIONER
Respondent
Hearing: 30 November 2023 Appearances:
Applicant in person
K I Murray as counsel assisting
N M H Whittington for the RespondentJudgment:
22 December 2023
JUDGMENT OF CHURCHMAN J
This judgment was delivered by me on 22 December 2023 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Parties:
The Plaintiff
Mr NMH Whittington, Barrister, Wellington Mr K I Murray, Barrister, Wellington
ADAMSON v THE JUDICIAL CONDUCT COMMISSIONER [2023] NZHC 3888 [22 December 2023]
Background
[1] The applicant is a litigant in person. He has been extensively involved in proceedings in the Family Court in relation to his granddaughter. He is unhappy with various decisions made by the Family Court Judge who has presided over the Family Court litigation (the Family Court Judge).
[2] Mr Adamson has tried many different ways to challenge the decisions of the Family Court Judge and the actions of the various lawyers involved for other parties in the proceedings.
[3] In a comprehensive decision dated 24 September 2021,1 Cooke J dismissed an appeal from an early decision of the Family Court Judge. Included among the grounds advanced by the applicant in that appeal was that the Family Court Judge had pre-determined the outcome of the Family Court proceedings.
[4] The Family Court proceedings remain on foot and are, as yet, not finally resolved. The applicant has attempted to judicially review decisions of the Family Court Judge. He has been told by several High Court Judges, about the inappropriateness of pursuing judicial review proceedings when the Family Court hearing to which the proceedings relate is still underway and has not yet been concluded.2 The judicial review proceedings have been stayed pending resolution of the Family Court proceedings.
[5] In addition to challenging the decisions of the Family Court Judge by appeal and judicial review, Mr Adamson has also commenced various proceedings against a number of other parties involved in the court case. He has attempted to bring a private prosecution against the other party to the Family Court proceedings alleging the commission of criminal offending. The District Court refused to grant leave for that proceeding to be commenced.3
1 Adamson and Jones v Chief Executive of Oranga Tamariki [2021] NZHC 2530.
2 [Adamson] v Family Court HC Wellington CIV-2023-485-102, 5 April 2023 (minute of Palmer J); [Adamson] v Family Court HC Wellington CIV-2023-485-102, 18 April 2023 (minute of Edwards J); [Adamson] v Family Court HC Wellington CIV-2023-485-102, 23 May 2023 (minute of Radich J); [Adamson] v Family Court HC Wellington CIV-2023-485-102 and CIV-2023-485- 362, 26 July 2023 (minute of Churchman J).
3 [Adamson] v Rush [2023] NZDC 7333.
[6] He has attempted to sue the lawyer appointed as counsel for child in proceedings where he initially sought to have her struck off the roll of barristers and solicitors and have her charged with criminal offences. This proceeding was struck out.4 He has attempted to sue a former Deputy Registrar in the Lower Hutt District Court asserting she had perverted the course of justice. This was also struck out.5 Mr Adamson has complained to the Judicial Conduct Commissioner about the Family Court Judge and then attempted to judicially review the Judicial Conduct Commissioner’s decision dismissing his complaint. It is these judicial review proceedings that this decision is relates to.
The decisions challenged
[7] The original statement of claim filed on 28 February 2023 was difficult to understand. It had been drafted by Mr Adamson himself. It has clearly not had the benefit on any legal input. It sought to review a decision of the Judicial Conduct Commissioner dated 1 February 2023. In that decision the Judicial Conduct Commissioner dismissed the complaint on the basis that Mr Adamson was improperly inviting the Judicial Conduct Commissioner to rule on the legality or correctness of any instruction, direction, order, judgment or other decision given or made by a Judge in relation to any legal proceedings and that this was prohibited in terms of s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the Act).
[8] On 2 June 2023 Mr Adamson filed an amended statement of claim. In addition to the challenge to the February decision, the amended statement of claim also sought to judicially review a decision of the Judicial Conduct Commissioner dated 30 March 2023. The second decision related to a further complaint about the Family Court Judge that Mr Adamson had lodged on 9 March 2023.
[9] In the March decision the Judicial Conduct Commissioner had explained to Mr Adamson that the matters he wished to challenge should proceed through the court by way of appeal or judicial review and not through the office of the Judicial Conduct Commissioner because of the provisions in s 8(2) of the Act.
4 [Adamson] v Baker [2023] NZHC 3809.
5 [Adamson] v The Attorney-General on behalf of the Ministry of Justice [2023] NZHC 3809.
[10] Counsel for the Judicial Conduct Commissioner filed a notice indicating that the Commissioner abided the decision of the Court. By minute of 29 June 2023, Cull J directed that an amicus curiae be appointed to assist the Court. Mr Murray was duly appointed.
The hearing
[11] Mr Adamson filed written submissions and spoke to them as did Mr Murray. Mr Whittington appeared for the Judicial Conduct Commissioner but did not play an active part in the hearing. Mr Adamson filed an affidavit in support dated 27 November 2023. In addition to providing, as annexures to the affidavit, documents relevant to the two decisions of the Judicial Conduct Commissioner sought to be judicially reviewed, also annexed to the affidavit were copies of letters from the Judicial Conduct Commissioner to Mr Adamson dated 24 November 2021 and 25 March 2022 where the Judicial Conduct Commissioner had dismissed other complaints lodged by Mr Adamson in respect of Justice Cooke (in relation to matters to do with the Family Court appeal heard by Justice Cooke) and the Family Court Judge about events occurring sometime before the events that gave rise to the two complaints in 2023.
[12] The affidavit also referred to copies of audio recordings that had been made of the Family Court hearings that were the subject of Mr Adamson’ complaints. The Judicial Conduct Commissioner had listened to those recordings prior to issuing the decision dismissing Mr Adamson’ complaints.
Legal issues
[13] The Judicial Conduct Commissioner dismissed Mr Adamson’s complaints replying on sections 8(2), 16(1)(a) and 16(1)(f) of the Act. Section 8(2) relevantly prohibits the Commissioner from challenging or calling into question the legality or correctness of any judgment or other decision given or made by a Judge in relation to any legal proceeding. Section 16(1)(a) obliges the Commissioner to dismiss a complaint that is not within his jurisdiction and s 16(1)(f) obliges the Commissioner to dismiss a complaint about a judicial decision that is or was subject to a right of
appeal or a right to apply for judicial review. Whether the complaint properly fell within the ambit of these sections was contested by Mr Adamson.
[14] There are some difficulties with aspects of Mr Adamson written submissions. At [16] he said:
…[he] reiterates that s 8(2) is not what [he] was or is calling into question, rather [he] is calling into question the conduct within the court dates above on which were presided over by [the Family Court Judge] and subsequently Cooke J.
[15] The two decisions of the Judicial Conduct Commissioner in question in these proceedings did not involve any complaint about the conduct of Cooke J. The relevant decisions of the Judicial Conduct Commissioner which related to Cooke J were dated 24 November 2021 and 26 March 2022. This is long before the decision of the Family Court Judge to which these judicial review proceedings relate.
[16] The matters in issue before the Court are determined by the contents of Mr Adamson’s amended statement of claim. He cannot go beyond those terms and, in submissions provided on the day of the hearing, seek to extend the scope of the judicial review to other decisions by the Commissioner not the subject of the statement of claim.
[17] As presented to the Court in his written and oral arguments, Mr Adamson’s case focused on the manner of the Family Court Judge’s conduct, specifically, his tone and demeanour. Mr Adamson’s argument was that this was something different to the types of challenge prohibited by s 8(2) of the Act.
[18] In his written submissions Mr Adamson referred to the Court of Appeal decision in Lagolago v Judicial Conduct Commissioner for the proposition that s 8(2) of the Act does not preclude the Judicial Conduct Commissioner from considering an allegation of judicial misconduct distinct from the legality or correctness of any instruction, direction, order, judgment or other decision given or made by a Judge in relation to any legal proceedings.6 The Court of Appeal decision he referred to is actually a decision on costs and not relevant to the legal issues in this case. The more
6 Lagolago v Judicial Conduct Commissioner [2023] NZCA 423.
relevant decision is the decision of the High Court in an earlier case in the same series:
Lagolago v Judicial Conduct Commissioner.7
[19] In that case, Edwards J had followed the decision of Cooke J in Rabson v Judicial Conduct Commissioner.8 In that case Cooke J had said:9
I see some merit in Mr Rabson’s argument. For myself, I do not read s 8(2) of the JCC Act as excluding the jurisdiction of the Commissioner simply because the alleged judicial misconduct may have manifested itself in the result of the underlying litigation. It seems to me that s 8(2) does no more than reiterate that it is not the function of the Commissioner to in any way seek to alter the litigation result itself, or call it into question. The consequences of any judicial misconduct for the result of litigation is a matter entirely for the Courts.
[20]However, Edwards J went on to say:10
But the nature and context of the Commissioner’s consideration of a complaint is important. If consideration of the misconduct in the underlying litigation requires the Commissioner to challenge or call into question the legality or correctness of a judicial act, then the Commissioner is precluded from considering the complaint. That is the effect of s 8(2). If the misconduct in the underlying litigation gives rise to appeal or review rights, then the Commissioner is also precluded from considering it. That is the effect of s 16(1)(f). So, while the JCC Act does not provide a blanket prohibition on the consideration of misconduct that has manifested itself in the underlying litigation, it does circumscribe the Commissioner’s power to do so.
[21] Mr Adamson made it clear that the essence of his complaints about the Family Court Judge related to not the substance of what the Judge had said in court but to the tone and manner in which it was said. He used various adjectives to describe the alleged tone, including that it involved “a sarcastic, intimidating and threatening manner”, that the Judge “spoke with uncontrollable anger and extremely critical tone” and that the Judge used an “uncontrollable critical tone”.
[22] The two hearings that were the subject of the complaints about the Judge were recorded. Those recordings are central to ascertaining whether the claims as to the “tone” used by the Judge were as portrayed by Mr Adamson.
7 Lagolago v Judicial Conduct Commissioner [2020] NZHC 3413.
8 Rabson v Judicial Conduct Commissioner [2019] NZHC 2279.
9 At [18].
10 At [44].
[23] The issue is whether allegations that the Judge spoke in an angry, threatening or intimidating manner are of a different nature to the allegations such as bias or lack of impartiality that were also relied upon by Mr Adamson and, instead, are similar in nature to the duty to disclose dealt with by Edwards J in Lagolago.
[24] Subsequent to the conclusion of the hearing, Mr Murray drew the Court’s and the parties’ attention to the very recent decision of Ellis J in W v W.11 That was not a judicial review case but an appeal from a decision of a Family Court Judge. At [65] and [66] Ellis J held that the nature and tone of a judge’s comments during the course of a hearing could render a trial unfair. On the facts of that case, she found that the challenged comments of the judge and the tone they were delivered in were unfair and that justified the granting of the appeal.
[25] Applying that reasoning to the present case, Mr Adamson could have advanced his concerns about the tone of the Family Court Judge’s comments as a ground of appeal. Section 16(1)(f) would then apply and the Commissioner would not have jurisdiction to consider the matter further. While that finding disposes of this judicial review proceeding, I will also consider what actually happened.
[26] The Commissioner clearly considered Mr Adamson complaints about the tone in which the Family Court Judge spoke at the hearings and actually expresses a conclusion as to whether or not that claim had been made out. At [8] of the decision conveyed in the letter of 30 March 2023 the Commissioner says:
In my examination of these latest complaints, I have not overlooked the possibility that there could be exceptions to the strict applications of ss 8(2), 16(1)(a) and 16(1)(f). For that reason I have taken care to listen to audio recordings of the hearings on 14 December 2022 and 8 March 2023. That exercise has not satisfied me that there has been misconduct by the Judge. A good example is your assertion of uncontrollable anger and extremely critical tone on 14 December 2022. That is not what I heard. The Judge, in a calm voice, said:
“I don’t care if you say that is the law. I disagree with you and I am the Judge.”
11 W v W [2023] NZHC 3491.
[27] In [9], [10] and [11] the Commissioner went on to explain in further detail why Mr Adamson’s complaints about the tone the Judge used were not established concluding:
But, the important point is that the Judge spoke calmly and in a way which I felt to be a plea to the parties to approach matters in a more balanced way.
[28] The Commissioner has clearly examined exactly the matter which Mr Adamson says his complaint about the Judge is based on, namely whether the Judge spoke in an inappropriate or angry tone and found, as a matter of fact, that this was not established. So, irrespective of whether the judge had jurisdiction to consider the complaint, he has actually done so and expressed his reasons for taking no further action.
[29] Mr Adamson submitted that he experienced the Judge’s tone and language as being intimidating, threatening and bullying. However, as Mr Murray pointed out in his submissions, the test is not a subjective one but is objective.
[30] It is no part of this Court’s function in judicial review proceedings to substitute its own view for what the outcome of the complaints should be, and I do not do so. However, as Mr Adamson effectively argued that the conclusions reached by the Commissioner after listening to the recordings were irrational, I listened to the recordings of the hearings to see if they disclosed any basis for an argument of irrationality. Having done that, I do not accept that there was anything irrational about the conclusion reached by the Commissioner that there was no basis for the assertion that the Judge spoke inappropriately.
[31] In terms of s 15 of the Act, the Commissioner clearly conducted a preliminary examination of the complaints and formed an opinion as to whether there were any grounds for exercising his power under s 15A to take no further action in respect of the complaints.
[32] In terms of s 15A(1), there was therefore a reasonable basis for the exercise of the discretion to “… take no further action in respect of a complaint if satisfied that further consideration of the complaint would, in all the circumstances, be unjustified”.
[33] The assessment that the judicial conduct complained about was not sufficiently serious to warrant taking further action was clearly within the scope of the Commissioner’s discretion in terms of ss 15 and 15A of the Act.
Outcome
[34] Accordingly, no grounds for judicial review have been made out and the application for review is dismissed.
Costs
[35] I reserve the question of costs. If they cannot be resolved between the parties, any application for costs is to be filed and served no later than 30 January 2024 with Mr Adamson having 10 working days to file any reply. Costs will then be dealt with on the papers.
Churchman J
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