Attorney-General v Rabson
[2021] NZHC 2607
•30 September 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-696
[2021] NZHC 2607
UNDER Section 166 of the Senior Courts Act 2016 IN THE MATTER OF
An application for a general order that
Malcolm Edward Rabson be restrained from commencing or continuing any civil proceedings
BETWEEN
HER MAJESTY’S ATTORNEY GENERAL FOR NEW ZEALAND
Applicant
AND
MALCOLM EDWARD RABSON
Respondent
Hearing: 28 September 2020
Supplementary memoranda or submissions by the Applicant,
9 October 2020, 11 December 2020, 29 April 2021, 26 May 2021
and 24 June 2021Supplementary memoranda or submissions by the Respondent, 29 September 2020, 12 October 2020, 31 May 2021 and 30 June
2021.
Appearances:
R S May and K L Kensington for Applicant M E Rabson (self-represented)
Judgment:
30 September 2021
JUDGMENT OF GWYN J
Solicitors:
Luke Cunningham Clere, Wellington
Copy to:
M E Rabson, Paraparaumu
ATTORNEY-GENERAL v RABSON [2021] NZHC 2607 [30 September 2021]
TABLE OF CONTENTS
Introduction [1]
Legal framework [3]
At least two proceedings totally without merit [8]
Submissions [11]
Discussion [17]
The BORA declarations proceeding (Rabson v Attorney-General, CIV-2014-485- 10918, [2013] NZHC 1018) [20]
The High Court decision [20]
My assessment [30]
The Transparency International proceeding (Rabson v Transparency International (New Zealand) Inc, CIV 2014-485-10920, [2015] NZHC 334) [31]
The High Court decision [31]
Subsequent appeals [35]
My assessment [39]
The leave applications proceeding (Rabson v Registrar of Supreme Court, CIV- 2015-485-60, [2015] NZHC 709) [42]
The High Court decision [42]
Subsequent appeals [52]
My assessment [53]
The Erceg proceeding (Re Rabson, SC 13/2016, [2017] NZSC 19) [54] Justice Arnold’s decision [54]
Subsequent appeals [55]
My assessment [58]
The Cabinet proceeding (Rabson v Attorney-General, CIV-2017-485-16, [2017]NZHC 2099) [61]
The High Court decision [61]
My assessment [69]
The 2017 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV-2017-485-133, [2017] NZHC 1249) [70]
The High Court decision [70]
Subsequent appeals [82]
My assessment [85]
The 2018 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV-2018-485-618, [2018] NZHC 2053) [87]
The High Court decision [87]
Subsequent appeals [91]
My assessment [92]
The 2019 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV-2018-485-919, [2019] NZHC 2279) [93]
The High Court decision [93]
Subsequent appeals [100]
My assessment [102]
The HRRT proceeding (Rabson v Solicitor-General, HRRT08/18, [2018] NZHRRT 37) [103]
The Human Rights Review Tribunal decision [103]
My assessment [108]
Appropriate exercise of discretion [111]
Submissions [112]
Discussion [115]
Terms of the order [121]
Is a general order appropriate? [122]
Submissions [123]
Discussion [126]
When should the order expire? [138]
Result [145]
Introduction
[1] The Attorney-General applies for a general order under s 166 of the Senior Courts Act 2016 restraining the respondent, Mr Rabson, from commencing or continuing civil proceedings in any court or tribunal for five years.
[2] The Attorney-General submits that since 2013, Mr Rabson has initiated or attempted to initiate at least 16 distinct proceedings. Within those proceedings, Mr Rabson filed at least 13 appeals to the Court of Appeal and 19 applications for leave to appeal to the Supreme Court. He sought at least 14 recalls of Court of Appeal and Supreme Court judgments. The Attorney-General submits that all of these proceedings have been totally without merit.
Legal framework
[3] Under s 166 of the Senior Courts Act, a judge may make an order restricting a person from commencing or continuing a civil proceeding. There are three types of orders:
(a)a limited order, which restrains a party from commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal;
(b)an extended order, which restrains a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal; or
(c)a general order, which restrains a party from commencing or continuing any civil proceeding in a senior court, another court or a tribunal.
[4] Section 167 sets out the grounds for making a s 166 order, the primary requirement being that the party has brought at least two proceedings that were totally without merit:
167 Grounds for making section 166 order
(1)A Judge may make a limited order under section 166 if, in civil proceedings about the same matter in any court or tribunal, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.
(2)A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(3)A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(4)In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.
(5)The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
(6)For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
[5] An order made under s 166 has effect for up to three years, but the Judge may specify a longer period up to five years if satisfied that there are exceptional circumstances justifying the longer period.1
[6] The Court should be slow to make an order under s 166, as it amounts to a breach of a person’s right of access to justice, as protected by the New Zealand Bill of Rights Act 1990 (BORA).2 However, that caution must also be balanced against the stress and expense that opponents of meritless litigation face, and the limited resources available within the judicial system. The Court should therefore exercise its discretion to make an order under s 166 in an appropriate case.3
[7]There is a two-stage test when considering whether to make a s 166 order:4
(a)First, I must decide whether there are at least two proceedings that are or were totally without merit.
1 Senior Courts Act 2016, s 168(2).
2 Auckland Council v Mawhinney [2019] NZHC 299 at [54]
3 At [55].
4 At [115]; affirmed in Mawhinney v Auckland Council [2021] NZCA 144 at [67].
(b)Second, if so, I make a discretionary judgement on whether an order is appropriate.
At least two proceedings totally without merit
[8] The phrase “totally without merit” is not defined in the Senior Courts Act, but the Court of Appeal considered the test in Mawhinney v Auckland Council.5 The Court held that a proceeding is totally without merit if it is bound to fail.6 Contrary to previous High Court decisions, the Court held that assessment is to be made without reference to other factors identified in the report of the Ministry of Justice on the Judicature Modernisation Bill when introducing s 166,7 or to features that indicated a claim was vexatious under the predecessor to s 166 (s 88B of the Judicature Act 1908);8 a proceeding is “either bound to fail or it is not.”9
[9] The Court also held that the word “totally” is apt to convey both a qualitative and a quantitative dimension.10 For a proceeding to meet the s 167 threshold, all causes of action pleaded must have been bound to fail.11
[10] The Court of Appeal held that s 167 makes clear that it is the Judge determining whether to make an order under s 166 who is required to consider whether the proceedings are totally without merit.12 Although that Judge will likely carefully review the reasoning in the judgments given in the relevant proceedings, the question whether in any particular proceeding the threshold is established is for the consideration of the Judge contemplating making the s 166 order.
Submissions
[11]The Attorney-General’s application relies on the following 16 proceedings:
5 Mawhinney v Auckland Council, above n 4.
6 At [58].
7 At [58]; Judicature Modernisation Bill: Report of the Ministry of Justice to the Justice and Electoral Committee (April 2014) [Ministry of Justice Report] at [292]–[293].
8 At [68]; Attorney-General v Heenan [2009] NZAR 763 (HC) at [138]; adopted in Auckland Council v Mawhinney, above n 2, at [53].
9 At [58].
10 At [60].
11 At [60].
12 At [66].
(a)Rabson v Attorney-General, CIV-2013-485-167, [2013] NZHC 1018 (the BORA declarations proceeding);
(b)Rabson v Registrar of Supreme Court, CIV-2014-485-10918, [2014] NZCA 481;
(c)Rabson v Transparency International (New Zealand) Inc, CIV 2014- 485-10920, [2015] NZHC 334 (the Transparency International proceeding);
(d)Rabson v Registrar of Supreme Court, CIV-2014-485-11155, [2015] NZHC 403;
(e)Rabson v Judicial Conduct Commissioner, CIV-2014-485-11404, [2015] NZHC 714;
(f)Rabson v Registrar of Supreme Court, CIV-2015-485-60, [2015] NZHC 709 (the leave applications proceeding);
(g)Rabson v Attorney-General, CIV-2016-485-149, [2016] NZHC 2876;
(h)Rabson v Judicial Conduct Commissioner, CIV-2016-485-238, [2016] NZHC 2539;
(i)Rabson v Judicial Conduct Commissioner, CIV-2016-485-781, [2016] NZHC 2713;
(j)Rabson v Judicial Conduct Commissioner, CIV-2016-485-905, [2017] NZHC 540;
(k)Re Rabson, SC 13/2016, [2017] NZSC 19 (the Erceg proceeding);
(l)Rabson v Attorney-General, CIV-2017-485-16, [2017] NZHC 2099 (the Cabinet proceeding);
(m)Rabson v Judicial Conduct Commissioner, CIV-2017-485-133, [2017] NZHC 1249 (the 2017 Commissioner proceeding);
(n)Rabson v Judicial Conduct Commissioner, CIV-2018-485-618, [2018] NZHC 2053 (the 2018 Commissioner proceeding);
(o)Rabson v Judicial Conduct Commissioner, CIV-2018-485-919, [2019] NZHC 2279 (the 2019 Commissioner proceeding); and
(p)Rabson v Solicitor-General, HRRT08/18, [2018] NZHRRT 37 (the HRRT proceeding).
[12] The written and oral submissions on behalf of the Attorney-General analysed each of the proceedings in some detail, noting that in many of them Mr Rabson’s conduct was described by the presiding judge(s) as being frivolous, vexatious, an abuse of process, or otherwise without merit. The Attorney-General submitted all 16 proceedings were bound to fail from the outset, and were totally without merit.
[13] Mr Rabson opposes the application. He refers to relationship property proceedings between him and his previous partner, which were heard in the High Court in 2010,13 and were subsequently the subject of two hearings in the Court of Appeal.14 I refer to those as the relationship property proceedings. Mr Rabson says that all the proceedings commenced by him since the relationship property proceedings arise from those judgments and were fully justified and with merit.
[14] In particular, Mr Rabson says that difficulties arose following the 2011 appointment by court order of Mr Wayne Chapman as a trustee to carry out the orders contained in the two Court of Appeal judgments made in the relationship property proceedings. Mr Rabson says that Mr Chapman (now deceased) negligently failed to follow the orders of the Court. Mr Rabson says his subsequent proceedings have been directed at, or ancillary to, recovering the more than $1.3 million he was awarded in the relationship property proceedings. The issues arising from the relationship
13 G v R [Lottery Winnings] [2010] NZFLR 1001.
14 R v G; G v R [Lottery Winnings] [2011] NZCA 459; Mer v LG [2011] NZCA 669.
property proceedings are outlined in Collins J’s judgment in the BORA declarations proceeding, which is discussed at [21] below.15
[15] Mr Rabson’s overall submission, as I understand it, is that in considering whether two or more of his proceedings lack merit, the Court should have regard only to the relationship property proceedings as, in his words, “all the other proceedings stem from these judgments.”
[16] Mr May, counsel for the Attorney-General, emphasised to the Court that the relationship property proceedings are not relied on by the Attorney-General in seeking the s 166 order.
Discussion
[17] As noted above, the determination of whether the threshold test, “totally without merit”, is satisfied is the task of the Judge hearing the s 166 application.16 It is not appropriate for the Court to simply adopt the assessments of the judges in the candidate proceedings.17
[18] Accordingly, I have considered nine of the candidate proceedings, which span the period from 2013 to 2020, a number of courts or tribunals, and a range of different defendants. Those candidate proceedings are:
(a)the BORA declarations proceeding (Rabson v Attorney-General, CIV- 2013-485-167, [2013] NZHC 1018);
(b)the Transparency International proceeding (Rabson v Transparency International (New Zealand) Inc, CIV 2014-485-10920, [2015] NZHC 334);
(c)the leave applications proceeding (Rabson v Registrar of Supreme Court, CIV-2015-485-60, [2015] NZHC 709);
15 Rabson v Attorney-General [2013] NZHC 1018.
16 Mawhinney v Auckland Council, above n 4, at [66].
17 At [72].
(d)the Erceg proceeding (Re Rabson, SC 13/2016, [2017] NZSC 19);
(e)the Cabinet proceeding (Rabson v Attorney-General, CIV-2017-485- 16, [2017] NZHC 2099);
(f)the 2017 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV-2017-485-133, [2017] NZHC 1249);
(g)the 2018 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV-2018-485-618, [2018] NZHC 2053);
(h)the 2019 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV-2018-485-919, [2019] NZHC 2279); and
(i)the HRRT proceeding (Rabson v Solicitor-General, HRRT08/18, [2018] NZHRRT 37).
[19] I have set out below a full analysis of these nine proceedings, and I consider they were all totally without merit. I have also considered the other seven proceedings submitted by the Attorney-General. Although I have not found it necessary to include a detailed analysis of those seven proceedings in order to reach a conclusion on the application, I am satisfied that they too would reach the “totally without merit” threshold and that they demonstrate the indicia of vexatious litigation, relevant to the exercise of my discretion at the second stage.
The BORA declarations proceeding (Rabson v Attorney-General, CIV-2014-485- 10918, [2013] NZHC 1018)
The High Court decision
[20] Mr Rabson sought declarations in the High Court that Court of Appeal and Supreme Court judges had violated his rights under s 27(1) of BORA through their decisions issued in relationship property proceedings involving him.18 The Attorney-General applied to strike out the proceeding.
18 Rabson v Attorney-General [2013] NZHC 1018.
[21] Justice Collins set out the background to the proceeding in the following terms:19
[2] The genesis of Mr Rabson’s current proceeding is a dispute he has with his former partner, Ms Gallagher.
[3]In his statement of claim Mr Rabson explains:
(1)On 16 April 2006 he and Ms Gallagher separated.
(2)Family Court and High Court proceedings emanated from the division of their relationship property.
(3)Almost all of the relationship property was held by a family trust.
(4)Under the Property (Relationships) Act 1976 Mr Rabson and Ms Gallagher were entitled to equal shares of their relationship property.
(5)The High Court accepted that Ms Gallagher’s share of the relationship property was approximately $1,491,000. The Court of Appeal adjusted the value of Ms Gallagher’s share down to $1,239,081.
(6)The Court of Appeal confirmed the Court’s appointed trustee’s powers to sell three properties and pay $1,239,081 to Ms Gallagher. One of those three properties is the home in Paraparaumu where Mr Rabson lived.
[4] In his statement of claim Mr Rabson explains his concern that the Court of Appeal’s judgment set the sum which Ms Gallagher was to receive without regard to the prices which the properties in question were able to be sold for by the Court appointed trustee. He is also concerned that the Court of Appeal’s judgment does not take account of the expenses associated with the sale of the properties, including the real estate agent’s commissions and the fees charged by the Court appointed trustee. Thus, Mr Rabson pleads the Court of Appeal’s judgment left it to him to solely bear the costs of selling the properties and suffering losses which occurred when two of the three properties were sold for approximately 40 per cent less than the figures used by the Court of Appeal when directing that $1,239,081 plus interest be paid to Ms Gallagher.
[5] On 26 January 2012 Mr Rabson applied for leave to appeal the Court of Appeal’s judgment to the Supreme Court. On 16 April 2012 the Supreme Court declined Mr Rabson’s application for leave to appeal. In doing so the Supreme Court said:
The applicant has now applied for leave to appeal to this Court. His primary proposed ground is that the order and directions of the Court of Appeal unduly favour Ms Gallagher by giving her a priority right to payment notwithstanding that the eventual
19 Rabson v Attorney-General, above n 18 (footnotes omitted).
sale prices of all the properties are not yet known and those which have already been sold have realised less than was estimated. The payments ordered to be made to Ms Gallagher are, however, on account of her overall entitlement and leave has been granted to any party to apply to the Court of Appeal for clarification of any matter related to its orders. Mr Rabson would therefore be able to seek from the Court of Appeal an adjustment of its orders if there were to be a change of circumstances for which he bore no responsibility and, as a consequence, the orders would lead to an overpayment of Ms Gallagher. We should add that it is not at this stage apparent that this may occur. There is substance in the submissions of counsel for the first respondent that Mr Rabson may have misunderstood the determinations of the Courts below.
[6] On 18 July 2012 Mr Rabson sought leave from the Court of Appeal to address the issues identified by the Supreme Court when it denied Mr Rabson leave to appeal to that Court.
[7] On 1 August 2012 the Court of Appeal declined Mr Rabson’s application for an adjustment of its orders.
[8] In his statement of claim in the proceeding before me Mr Rabson explains that by 28 June 2012 he had accepted the terms of the Court of Appeal judgment, which provided him with the right to purchase the Paraparaumu property from the Court appointed trustee.
[9] Thereafter a dispute arose between Mr Rabson and the Court appointed trustee. The Court appointed trustee applied to the High Court to have Mr Rabson vacate the property.
[10] On 10 December 2012 the High Court granted the trustee’s application and gave Mr Rabson eight days to vacate the Paraparaumu home.
[11] Mr Rabson filed an appeal and an application for a stay with the Court of Appeal. The application for a stay was declined by the Court of Appeal on 21 December 2012.
[22]In the proceeding before Collins J, Mr Rabson sought:20
(1)A declaration that the Court of Appeal Judges violated [his] s 27(1) guarantee under the Property (Relationships) Act 1976 by forcing him to solely bear the substantial costs of selling the relationship property and refusing to correct this in equity when [he] exercised leave provided by the Court of Appeal to seek correction.
(2)A declaration that the Court of Appeal Judges violated [his] s 27(1) guarantee by forcing him to solely bear the financial risk of the Court appointed trustee underselling the property and then refusing to consider the evidence this was so when denying [his] stay application.
20 At [12].
(3)A declaration that the Court of Appeal Judges violated [his] s 27(1) guarantee by forcing him to solely bear the substantial costs of the Court appointed trustee and then refusing to correct this in equity despite [his] formal application of requesting correction.
(4)A declaration that the Supreme Court violated the Bill of Rights Act protections claimed to exist in Attorney-General v Chapman by failing to address the wholesale legal breaches of [his] rights by the Court of Appeal identified in his 26 January 2012 application for leave to the Supreme Court.
[23] Justice Collins heard the strike-out application on the assumption that the matters pleaded in the statement of claim were correct, referring to Couch v Attorney-General,21 and Attorney-General v Prince.22
[24]Justice Collins found the application for strike-out raised two questions:
[1]… Should Mr Rabson’s proceeding be struck out because:
(1)he seeks to have the High Court declare that certain decisions of the Court of Appeal and the Supreme Court breach his rights to justice affirmed by s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA)? and/or
(2)his proceeding is an impermissible collateral attack on judgments issued by the Court of Appeal and the Supreme Court and/or an attempt to re-litigate those decisions?
[25] As to the first question, Collins J noted that while the High Court is a Court of inherent jurisdiction, there are important limits to its jurisdiction.23 One of those limits is that the High Court is bound by decisions of the Court of Appeal and Supreme Court. The High Court cannot review decisions of the Court of Appeal or Supreme Court even when it is asked to exercise its inherent jurisdiction. As Mr Rabson was asking the High Court to review and rule on the validity of decisions made by the Court of Appeal and Supreme Court, Collins J found that the High Court did not have jurisdiction to consider the proceeding and it must be struck out on jurisdictional grounds.24
21 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
22 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
23 Rabson v Attorney-General, above n 18, at [14].
24 At [15].
[26] As to the second question, Mr Rabson argued that his proceeding was not an attack on decisions of the Court of Appeal or Supreme Court because, in the proceeding before Collins J, he was seeking declarations about whether his rights under s 27(1) of BORA had been breached.
[27] Justice Collins found that it was clear that if the High Court were to hear and determine the proceeding it would inevitably involve itself in an assessment of the merits of the judgments and decisions which Mr Rabson disputed and the results could impugn those decisions:25
In those circumstances I am bound to conclude that where a decision has been made by a Court of competent jurisdiction, it is an abuse of process to commence a further proceeding which collaterally attacks the existing judgment or decision.
[28] The Judge found that, alternatively, Mr Rabson’s proceeding constituted an attempt to relitigate the judgments of the Court of Appeal and Supreme Court and therefore breached the doctrine of res judicata.26
[29]The proceeding was struck out accordingly.
My assessment
[30] It is clear from Collins J’s analysis of the relevant authorities and consideration of the particulars of the proceeding before him that the proceeding in its entirety was totally without merit.
The Transparency International proceeding (Rabson v Transparency International (New Zealand) Inc, CIV 2014-485-10920, [2015] NZHC 334)
The High Court decision
[31] Mr Rabson, together with Mr Richard Creser, sought judicial review of a decision made by the Ethics Committee of Transparency International (New Zealand) Inc (Transparency International).27 Transparency International applied for strike-out.
25 At [17], citing Hunter v Chief Constable [1982] AC 529 and Daniels v Thompson [1998] 3 NZLR 22 (CA).
26 At [18].
27 Rabson v Transparency International (New Zealand) Inc [2015] NZHC 334.
[32] The Transparency International decision related to an enquiry made by Mr Vince Siemer, raising issues about government funding and control of Transparency International and alleged conflicts of interests of its Executive Director. The decision of the Ethics Committee rejected Mr Siemer’s complaint that any breach of ethics or conflict of interest had occurred. The statement of claim in the judicial review proceedings alleged that the initial enquiry made by Mr Siemer was made on behalf of Mr Rabson and Mr Creser, who were said to be members of Transparency International. The statement of claim raised two causes of action:
(a)the Ethics Committee had breached natural justice in the process it adopted in dismissing the complaint; and
(b)the Ethics Committee’s approach involved predetermination and was procedurally improper.
[33] Justice Mallon canvassed Transparency International’s rules in some detail, noting membership criteria, provisions for annual and general meetings, election of members of the Board and the manner in which the Board conducts and manages Transparency International’s affairs. She also noted that the Rules provide that no pecuniary profit may be made by any member of Transparency International (subject to a number of exceptions).
[34] Justice Mallon struck out the claim on the basis that there was no reasonably arguable cause of action, because Transparency International’s handling of Mr Siemer’s complaint was not amenable to judicial review:28
[21] Any decision of a public nature is potentially susceptible to review including those of a private organisation. TINZ has stated public objectives, it is registered as a charity and it is said to receive some Government funding. The claim as pleaded is that the concerns that were raised were dismissed without a fair process. The concerns of Mr Rabson and Mr Creser, as raised through Mr Siemer, are at least partly about TINZ’s public objectives (that Government funding is contrary to them). That, however, is insufficient to render TINZ’s process and dismissal of the concerns amenable to judicial review. The Courts have been hesitant to permit challenges by way of judicial review of decisions of an incorporated society, which typically concern private rather than public matters and where other avenues of redress are available.
28 Rabson v Transparency International (New Zealand) Inc, above n 27 (footnotes omitted).
[22] The claim pleads that Mr Siemer’s initial enquiry was made on behalf of Mr Creser and Mr Rabson. That, however, was not disclosed in Mr Siemer’s email to TI. Mr Siemer was corresponding as editor in respect of a story he intended to publish. How TINZ chose to respond to that enquiry and the process it adopted in doing so is not amenable to review. It is not a decision of a public nature even though the subject of Mr Siemer’s enquiries concerned public interest matters. That is so even if Mr Siemer’s enquiries were made on behalf of Mr Rabson and Mr Creser, as members of TINZ, as pleaded. The enquiry was nevertheless one made by an editor about issues of concerns to those members. How TINZ chose to respond to Mr Siemer’s enquiry was a private internal management matter governed and resolved by TINZ’s rules. On this basis I am satisfied that the proceeding has no prospect of success.
Subsequent appeals
[35] Mr Rabson and Mr Creser filed an appeal to the Court of Appeal and an application for leave to appeal to the Supreme Court. The Supreme Court application was declined.29
[36] The Deputy Registrar of the Court of Appeal declined an application by Mr Rabson and Mr Creser to dispense with security for costs in the Court of Appeal, and Randerson J dismissed an application for review of the Deputy Registrar’s decision.30 The Supreme Court dismissed an application for leave to appeal against Randerson J’s decision,31 as well as an application for recall of that judgment.32
[37] Mr Rabson then sought an extension of time in the Court of Appeal for filing the case on appeal and applying for a hearing date. Justice Wild declined to consider that application as security for costs had not been paid.33 An application for leave to appeal Wild J’s judgment to the Supreme Court was declined,34 as was an application for recall of that judgment.35
[38] The Court of Appeal ultimately struck out the appeal on the basis that security for costs had not been paid.36 An application for leave to appeal to the Supreme Court
29 Rabson v Transparency International (New Zealand) Inc [2015] NZSC 56.
30 Rabson v Transparency International (New Zealand) Inc [2015] NZCA 188.
31 Rabson v Transparency International (New Zealand) Inc [2015] NZSC 111.
32 Rabson v Transparency International (New Zealand) Inc [2015] NZSC 121.
33 Rabson and Creser v Transparency International New Zealand Inc CA156/2015, 4 August 2015 (Minute and Directions of Wild J).
34 Rabson v Transparency International (New Zealand) Inc [2015] NZSC 145.
35 Rabson v Transparency International (New Zealand) Inc [2015] NZSC 153.
36 Rabson v Transparency International (New Zealand) Inc [2015] NZCA 543.
against the strike-out decision was declined.37 Applications for recall of both the Court of Appeal and Supreme Court judgments were declined.38
My assessment
[39] Justice Mallon noted that any decision of a public nature is potentially susceptible to review, including those of a private organisation, and noted Transparency International’s stated public objectives, the fact that it is registered as a charity and that it is said to receive some government funding. However, Mallon J then went on to assess relevant principles and authorities and found that that in itself was insufficient to render Transparency International’s process and dismissal of the concerns amenable to judicial review, citing R v Leonard Cheshire Foundation (a charity) & Anor.39
[40] Justice Mallon was exercising the strike-out jurisdiction and considered and appropriately applied the test in Couch v Attorney-General.40
[41] In my assessment, the arguments advanced by Mr Rabson were bound to fail, and the proceeding was totally without merit.
The leave applications proceeding (Rabson v Registrar of Supreme Court, CIV-2015- 485-60, [2015] NZHC 709)
The High Court decision
[42] Mr Rabson applied for judicial review of a decision of the Registrar of the Supreme Court not to provide copies of applications for leave filed in the Supreme Court.41 The Registrar applied to strike out the proceeding.
[43]The background to the proceeding is described in the judgment of Collins J:
[2] On 21 January 2015 Mr Rabson, who describes himself as a “New Zealand citizen researching the workings of the New Zealand Supreme
37 Rabson v Transparency International (New Zealand) Inc [2016] NZSC 9.
38 Rabson v Transparency International (New Zealand) Inc [2016] NZCA 26; and Rabson v Transparency International (New Zealand) Inc [2016] NZSC 22.
39 R v Leonard Cheshire Foundation (a charity) [2002] EWCA Civ 366 at [35(i)].
40 Couch v Attorney-General, above n 21.
41 Rabson v Registrar of Supreme Court [2015] NZHC 709.
Court”, sent an email to the Registrar of the Supreme Court (the Registrar). In his email Mr Rabson asked:
Could you advise me by return email how I can most expeditiously obtain copies of the actual applications (not mine) for leave which were filed in the Supreme Court last year (calendar 2014)?
[3]On 21 January 2015 the Registrar responded to Mr Rabson saying:
There are no regulations which permit a search of this courts files. This is unlike the other Higher Courts which have a specific enabling regulation – see Court of Appeal (Access to Court Documents) Rules 2009, by way of example.
Because of this I am unable to make available copies of applications for leave to appeal.
You will find a list of all applications accepted for filing and a brief summary of the applications for leave on the courts website.
see: summaries/case-summaries-2014
[44] Justice Collins first canvassed the relevant strike-out principles, under r 15 of the High Court Rules 2016, referring to the authorities which have settled those principles.42 As Collins J noted, the outcome of the strike-out application hinged on the answers to two questions:43
(a)First, when the Registrar declined Mr Rabson’s request, was he acting under the supervision of the judges of the Supreme Court?
(b)If so, was the Registrar’s decision amenable to judicial review?
[45] In relation to the first question, Collins J concluded that the Registrar was acting under the supervision of the Judges of the Supreme Court when he declined Mr Rabson’s request.44 In support of that conclusion, Collins J cited Mafart v Television New Zealand Ltd, where the Supreme Court considered an application by Television New Zealand Limited to access a criminal file and held:45
42 Attorney-General v Prince, above n 22; Couch v Attorney-General, above n 21.
43 Rabson v Registrar of Supreme Court, above n 41, at [18].
44 At [23].
45 Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18 at [18] (footnotes omitted).
A Court of record is under an obligation to maintain the record of its proceedings … While the maintenance of the record is as a matter of practice carried out by the Registrars of the Court, they are acting for the Court in this ministerial work and under the supervision of the Judges who comprise the Court.
[46] The records which Mr Rabson wished to access are maintained by the Registrar who acts for the Supreme Court “under the supervision of the Judges who comprise the Court”.46
[47] Justice Collins also noted the Supreme Court’s inherent powers, which may encompass the Judges of the Supreme Court supervising and reviewing the decision of the Registrar which Mr Rabson sought to challenge.47
[48] In relation to the second question, Collins J concluded that the Registrar’s decision was not amenable to judicial review.48 First, because decisions of Judges of the Higher Courts cannot be judicially reviewed. The natural corollary of that is that decisions of the Registrars of those Courts made under the supervision of the Judges of the Higher Courts must also be immune from judicial review, in order to avoid judicial review proceedings being used to launch corollary attacks upon the decisions of the Judges of the Higher Courts.49
[49] Justice Collins also dismissed Mr Rabson’s argument under s 27(2) of BORA, as the Registrar was not acting as a “tribunal or other public authority” when he made the decision that Mr Rabson wished to challenge; he made his decision on behalf of the Supreme Court.50
[50] Finally, Collins J noted that Mr Rabson had not been able to point to any right, obligation or interest protected by law which he sought to uphold through his application for judicial review. There is no common law right of access to Court documents,51 and, as the Registrar had made clear to Mr Rabson, there are no statutory
46 Rabson v Registrar of Supreme Court, above n 41, at [24].
47 At [25].
48 At [26].
49 At [29].
50 At [30], citing Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) in support of that conclusion.
51 At [31], citing R v Mahanga [2001] 1 NZLR 641 (CA) at [35].
instruments which permit a search of the files of the Supreme Court. Justice Collins concluded that Mr Rabson had no “right” and was therefore unable to pursue a “remedy”.52
[51] For those reasons, Collins J concluded that Mr Rabson’s claim for judicial review disclosed no reasonably arguable cause of action and must be struck out.
Subsequent appeals
[52] Mr Rabson applied for leave to appeal directly to the Supreme Court, which was dismissed.53
My assessment
[53] With respect, Collins J’s analysis of the strike-out jurisdiction and the substantive issues plainly demonstrate that the proceeding in its entirety was totally without merit.
The Erceg proceeding (Re Rabson, SC 13/2016, [2017] NZSC 19)
Justice Arnold’s decision
[54] Mr Rabson filed an application in the Supreme Court for recall of that Court’s judgment in Erceg v Erceg.54 The application was dealt with by Arnold J, who issued a minute in which he ruled that Mr Rabson had no standing to seek a recall of the Court’s judgment, as he was not a party to the Erceg litigation and did not have a qualifying interest in it.55
Subsequent appeals
[55] Mr Rabson applied for a review of Arnold J’s decision. In dismissing that application for review, the Supreme Court referred to Greer v Smith, in which the Supreme Court determined that applications for access to Court records otherwise than
52 At [31].
53 Rabson v Registrar of Supreme Court [2015] NZSC 99.
54 Erceg v Erceg [2016] NZSC 135.
55 Re Rabson [2017] NZSC 19 at [1].
by parties to proceedings should be directed to a Judge, and concluded that there was no statutory right to seek a review of a decision by Judge determining such an application and no statutory jurisdiction to review such a decision.56
[56] The Court adopted the same approach to an application for recall of a judgment by a person who was not a party to the litigation to which the judgment relates and has no potentially qualifying interest in the proceeding. It found there was no statutory right to seek a review and no statutory jurisdiction to review in the case before it.57 The Supreme Court therefore dismissed the application for review for want of jurisdiction.
[57]Subsequently, Mr Rabson sought recall of that judgment of the Supreme Court.
In dismissing the application for recall, the Court stated:58
[2] The application for recall raises no matter that provides any basis for reconsideration of the judgment. The statement in the judgment that the Court does not have jurisdiction means what it says.
My assessment
[58] The Court’s decision in Greer v Smith contained a detailed analysis of the relevant provisions of the Supreme Court Act 2003 and the Supreme Court Rules 2004.
I set out the Court’s approach as follows:59
(a)Applications for access to court records otherwise than by the parties to proceedings should be directed to a Judge.
(b)A decision by the Registrar on access to Court records made by parties to proceedings is reviewable by a Judge.
(c)There being no rules of Court directly applicable, decisions on access will be guided by the rules which apply to access to High Court and Court of Appeal court records.
[59] The initial decision in Arnold J’s minute was that Mr Rabson, not being a party to the Erceg litigation and having no qualifying interest in that litigation, had no standing to seek a recall of the Court’s judgment. With respect, that conclusion must
56 At [2], citing Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785.
57 At [3].
58 Re Rabson [2017] NZSC 41.
59 Greer v Smith, above n 56, at [10].
follow from first principles. Further, it was plainly open to the Court, having had regard to the Supreme Court Act 2003 and Supreme Court Rules 2004, to set its own process for determining an application for recall of a judgment by a person who is not a party to the litigation to which the judgment relates and has no potentially qualifying interest in the proceeding.
[60]The proceeding in its entirety was totally without merit.
The Cabinet proceeding (Rabson v Attorney-General, CIV-2017-485-16, [2017] NZHC 2099)
The High Court decision
[61] Mr Rabson sought to judicially review the Attorney-General’s failure to notify Cabinet of any “non-compliance with existing law by the Supreme Court”.60 The Judges of the Supreme Court were also initially joined as parties, but were struck out by consent.61 The Attorney-General applied to strike out the proceeding.
[62] Justice Cull described the background to Mr Rabson’s proceeding in the following terms:
[11] On 28 November 2016, the Supreme Court issued the minute in Rabson and Creser v Shephard. This minute followed Ellen France J’s judgment, in which Mr Rabson’s application to review two decisions of the Registrar, declining to waive Mr Rabson’s payment of filing fees, was dismissed.
[12] Mr Rabson applied for review of this decision, relying on ss 14 and 28(3) of the Supreme Court Act 2003. The Registrar advised Mr Rabson that there was no further right of review from a decision of a Judge under s 40 of the Supreme Court Act. Mr Rabson challenged the Registrar’s response.
[13] Because Mr Rabson did not accept the Registrar’s response, the Supreme Court issued its 28 November 2016 minute to the parties, confirming the Registrar’s response as correct; reaffirming the Supreme Court’s judgment in Guy v Bank of New Zealand; and restating that s 14 of the Supreme Court Act does not give the Court jurisdiction to review a decision made under s 40.
[14] Following this minute, by emails dated 1 and 19 December 2016, Mr Rabson applied to the Attorney-General to notify Cabinet, under [4.3] of the Cabinet Manual, of the Supreme Court’s failure to comply with existing law. Mr Rabson claimed that the Judges of the Supreme Court had issued an
60 Rabson v Attorney-General [2017] NZHC 2099 at [1].
61 At [3].
unreasoned ruling off the record to dispose of Mr Rabson’s application to the Supreme Court.
[15] Mr Rabson now seeks judicial review of the Attorney-General’s decision not to notify Cabinet, alleging that in failing to do so, the Attorney-General has failed to comply with his duties under [4.3] of the Cabinet Manual.
[63] Mr Rabson sought to judicially review the Attorney-General’s failure to notify Cabinet in relation to the Supreme Court’s alleged “non-compliance” on the grounds that:62
(a)the failure was a breach of natural justice and unfair;
(b)it was a denial of the Attorney-General’s lawful duty; and
(c)it amounted to an abdication of the Attorney-General’s lawful duty under the Cabinet Manual, or alternatively, a delegation of those duties to Supreme Court Judges “who have already committed rule of law breaches”.
[64] Justice Cull considered the strike-out jurisdiction under r 15.1 of the High Court Rules 2016, noting that the principles are well settled and have been canvassed in numerous authorities, such as Attorney-General v Prince and Couch v Attorney-General.63 Justice Cull also referred to authorities focussing on “untenable causes of action”,64 frivolous proceedings,65 and an abuse of process.66
[65]Justice Cull also considered [4.3] of the Cabinet Manual, which provides:67
[4.3] The Attorney-General has particular responsibility for maintaining the rule of law. The Attorney-General has a responsibility to notify Cabinet of any proposals or government actions that do not comply with existing law and to propose action to remedy such matters. The New Zealand Bill of Rights
62 At [16].
63 At [18]-[19], citing Attorney-General v Prince, above n 22; and Couch v Attorney-General, above n 21.
64 At [20], citing Siemer v Judicial Conduct Commissioner [2013] NZHC 1853 at [13].
65 At [21], citing Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [89].
66 At [23], citing Commissioner of Inland Revenue v Chesterfields Preschools Limited, above n 65; and Hunter v Chief Constable of the West Midlands Police [1982] AC 529, [1981] 3 All ER 727 (HL).
67 At [24], citing Cabinet Office Cabinet Manual 2017 at [4.3].
Act 1990 requires the Attorney-General to report to Parliament if a Bill appears to be inconsistent with this Act.
[66] Justice Cull noted previous proceedings brought by Mr Rabson, concerning the same provision of the Cabinet Manual, where Ellis J held that the Cabinet Manual is informative, rather than directive, and is not independently justiciable.68 Justice Ellis found that, even if it were justiciable, [4.3] is concerned only with the Attorney-General’s relationship with the executive branch of Government, and has no bearing on the Attorney-General’s relationship with the judiciary, and in notifying Cabinet of judicial decisions or actions. Justice Ellis held the Attorney-General did not have an obligation to notify Cabinet. That decision was upheld by the Supreme Court in declining leave for Mr Rabson to appeal.69
[67] Having canvassed both the substance of the claim and the strike-out jurisdiction, Cull J gave three reasons for striking out the claim, being the same reasons Ellis J had given in the earlier judgment.70 First, the judicial review proceedings were untenable, because the Cabinet Manual is informative, rather than directive, and is not independently justiciable.71 Second, Mr Rabson was seeking to judicially review the form of a decision of the Supreme Court, namely its minute of 28 November 2016. With reference to the decision of Collins J in the leave applications proceeding, Cull J held the High Court has no jurisdiction to hold that a decision of the Supreme Court is wrong in law.72 Third, the proceedings were seeking to relitigate a matter that had already been twice determined against Mr Rabson, both by Ellen France J for the Supreme Court and the full Court of the Supreme Court in its 28 November 2016 minute.73
[68] Accordingly, Cull J struck out the proceeding as Mr Rabson’s claim was legally untenable, vexatious, and an abuse of process.74
68 At [25], citing Rabson v Attorney-General [2016] NZHC 2876 at [9].
69 Rabson v Attorney-General [2017] NZSC 22.
70 Rabson v Attorney-General, above n 60, at [27].
71 At [28].
72 At [29], citing Rabson v Registrar of Supreme Court [2015] NZHC 709, above n 41.
73 At [30].
74 At [32].
My assessment
[69] For the reasons set out in the High Court judgment, it is plain that this proceeding in its entirety was totally without merit.
The 2017 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV- 2017-485-133, [2017] NZHC 1249)
The High Court decision
[70] Mr Rabson filed an application for judicial review of the dismissal by the Judicial Conduct Commissioner (the Commissioner) of a complaint made by Mr Rabson against the Judges of the Supreme Court.75 The Judges of the Supreme Court were removed as second respondents by Ellis J. The Commissioner applied to strike out Mr Rabson’s statement of claim.
[71] In his judgment, Faire J set out the nature of Mr Rabson’s complaint in the following terms:76
[11] The complaint lodged to the [Commissioner] on 1 December 2016 alleged that Ellen France J should not have participated in issuing a minute on 28 November 2016 given it was her decision of 21 November 2016 that the applicant sought to review. The applicant described Ellen France J as having a "conflict of interest" and acting in her own case. The other Supreme Court Judges previously named as second respondents were said to be complicit in Ellen France J's violation of the fundamental legal doctrine that no Judge can act in their own cause.
[12] The applicant pleads that the secret nature of the minute supports his claim the other Supreme Court Judges were complicit in Ellen France J's conflict. He criticised the "refusal to either properly record the Judgment or even call it a judgment" and the use of a "private unrecorded Minute". He finished his complaint by saying "if you attempt to claim no jurisdiction in this complaint you will be judicially reviewed".
[72] The Commissioner issued a written decision on Mr Rabson’s complaint on 1 March 2017. The decision dealt with seven complaints against the Supreme Court Judges previously named as second respondents. All complaints concerned the minute issued by the Court on 28 November 2016. The Commissioner noted the provisions
75 Rabson v Judicial Conduct Commissioner [2017] NZHC 1249.
76 At [11]-[12] (footnotes omitted).
of s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the JCC Act) that it is not a function of the Commissioner to:77
… challenge or call into question the legality or correctness of any construction, direction, order, judgment, or other decision given or made by a Judge in relation to any proceedings.
[73] The Commissioner accordingly dismissed the complaints, pursuant to s 16(1)(a) of the JCC Act, because they were about the legality or correctness of judicial decisions and therefore were outside his jurisdiction.78 In relation to the complaints about the procedural legality of the 28 November 2016 minute, the Commissioner said “… it is for the Courts, not the Judicial Conduct Commissioner, to determine how their decisions are to be recorded. The legality or correctness of such determinations falls outside my jurisdiction.”79 The Commissioner also recorded that the complaint was dismissed pursuant to s 16(1)(d) of the JCC Act as being frivolous, if not vexatious.80
[74] Mr Rabson’s statement of claim before the High Court pleaded two grounds of review:81
(a)Procedural impropriety, in dismissing the seven complaints together, as s 19(1) of the JCC Act places a duty of confidentiality on the Commissioner, which was breached when he disseminated information about the individual complainants and their complaints.
(b)Breach of natural justice, in the Commissioner’s failure to give reasons for dismissing the applicant’s complaints under s 16(1)(d) of the JCC Act and treating him differently to the other complainants.
77 At [14].
78 At [15].
79 At [15].
80 At [16].
81 At [17]-[19].
[75] Justice Faire summarised the principles applicable to a strike-out application, referring to key authorities, including Siemer v Judicial Conduct Commissioner and Reekie v Attorney-General.82
[76] Justice Faire then analysed the relevant provisions of the JCC Act, canvassing the purpose of the JCC Act (s 4), the Commissioner’s jurisdiction, the obligation to receive and deal with every complaint made about the conduct of a Judge (s 11), the Commissioner’s duty of confidentiality (s 19) and the circumstances in which the Commissioner is required to dismiss the complaint (s 16).83
[77] In respect of the first ground of review, Faire J noted that s 11(4) of the JCC Act specifically provides for complaints about the same matter to be dealt with together. The disclosure made by the Commissioner was for the purpose of carrying out his functions and giving effect to the JCC Act and was authorised by s 19(1)(b) of the JCC Act. Section 16 required the Commissioner to notify complainants that their complaints had been dismissed.
[78] As contemplated by s 11(4), the Commissioner considered and dismissed the complaints from all seven people together, under s 16. He was required to communicate that decision to the complainants and was authorised by ss 11(4) and 19(1) of the JCC Act to do so in a single decision. Accordingly, the Judge found that the first ground of review could not succeed – it disclosed no reasonably arguable cause of action.84
[79] In respect of the second ground of review, s 16(2) of the JCC Act requires the Commissioner to give written notice of the grounds on which the Commissioner has dismissed the complaint, but does not require him to give reasons. However, Faire J noted that the Commissioner did provide reasons for dismissing the complaints as being frivolous and probably vexatious, insofar as the complaints made by Mr Rabson and Mr Siemer were concerned. He concluded, therefore, that the decision did not lack reasons, nor demonstrate bias or breach of natural justice, and that the grounds
82 At [10], citing Siemer v Judicial Conduct Commissioner, above n 64, at [13]; and Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [39].
83 At [21]-[24].
84 At [27].
for striking out the second ground of review were made out in terms of r 15(1) of the High Court Rules.85
[80]Justice Faire also accepted that the proceeding was an abuse of process:86
[36] I accept counsel’s submission:
8.6In these circumstances Mr Rabson’s application is frivolous, vexatious and otherwise an abuse of process as:
(a)there is no reasonable basis for Mr Rabson’s speculative allegations of serious misconduct;
(b)the limits of a Commissioner’s jurisdiction are well established and Mr Rabson was aware the Commissioner would decline jurisdiction and that Mr Rabson would then judicially review the Commissioner; and
(c)the dismissal of Mr Rabson’s complaint stands, even if one or more grounds of review are made out as Mr Rabson does not, and cannot, challenge the Commissioner’s dismissal of his complaints pursuant to ss 8(2) and 16(1)(a) of the JCC Act.
[81] Justice Faire accordingly ordered that the statement of claim be struck out and awarded indemnity costs to the Commissioner, on the basis Mr Rabson had acted vexatiously, frivolously, improperly, or unnecessarily in commencing a proceeding.87
Subsequent appeals
[82] Mr Rabson appealed Faire J’s costs order to the Court of Appeal. The Deputy Registrar refused to dispense with security for costs, and French J declined an application for review of the Deputy Registrar’s decision, describing the appeal as “hopeless”.88 Justice French recorded Mr Rabson’s argument that, in citing the judges of the Supreme Court as respondents, he was acting in accordance with s 9 of the Judicature Amendment Act 1972. Justice French said that argument was not new, and
85 At [30].
86 At [36] (footnotes omitted).
87 At [38].
88 Rabson v Judicial Conduct Commissioner [2017] NZCA 349 at [14].
was in effect a collateral attempt to re-litigate an issue that had already been decided against Mr Rabson.89
[83] The Supreme Court declined both: an appeal of French J’s decision, describing Mr Rabson’s conduct as “an abuse of process, exemplified by circularity, repetitiveness and general vexatiousness”;90 and a subsequent application for recall of its judgment, as the recall application was an abuse of process.91 In declining the appeal against French J’s decision, the Supreme Court referred to earlier proceedings by Mr Rabson against the Commissioner in which he named Judges as respondents, from which Mr Rabson knew that: the joinder of judges in review proceedings against the Commissioner is improper; if he so joins them, they will be removed and he will be ordered to pay costs on their removal; and if he wishes to proceed with an appeal to the Court of Appeal he will be required to provide security for costs.92 The Court noted that Mr Rabson also knew that if he seeks leave to appeal to the Supreme Court against non-dispensation of the requirement to provide security, his application will have to be dealt with by a panel of judges which will include one or more of the judges originally named as parties to the review proceedings and in whose nominal favour the order for costs was made.93
[84] Mr Rabson also appealed Faire J’s strike-out decision to the Court of Appeal. Again, the Deputy Registrar refused to dispense with security for costs. Justice Asher declined an application for review of the Deputy Registrar’s decision, describing the appeal as vexatious.94
My assessment
[85] Justice Faire appropriately analysed the relevant provisions of the JCC Act, and canvassed and applied the principles applicable to a strike-out application.
[86]I conclude that the proceeding in its entirety was entirely without merit.
89 At [12], citing Rabson v Judicial Conduct Commissioner [2016] NZHC 884.
90 Rabson v Young [2017] NZSC 146 at [4].
91 Rabson v Young [2017] NZSC 163.
92 Rabson v Young, above n 90, at [2].
93 At [3].
94 Rabson v Judicial Conduct Commissioner [2017] NZCA 382 at [12].
The 2018 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV- 2018-485-618, [2018] NZHC 2053)
The High Court decision
[87] Mr Rabson filed an application for judicial review of the Commissioner’s dismissal of a complaint he had made against the three Supreme Court judges.95 The Deputy Registrar referred the proceedings to Cooke J under r 5.35A of the High Court Rules, for consideration for strike-out under r 5.35B.
[88] Mr Rabson’s complaint to the Commissioner related to the conduct of the Chief Justice and William Young and O’Regan JJ in the Supreme Court judgment in the 2017 Commissioner proceeding,96 in declining the appeal against French J’s decision.97 He contended that they had acted improperly as judges in their own cause.98
[89] The Commissioner concluded that the complaints were misconceived, vexatious and they fell outside his jurisdiction.99
[90] Justice Cooke struck out the proceedings as being plainly an abuse of process, as Mr Rabson was relitigating the proceeding that had been struck out by Faire J (the 2017 Commissioner proceeding). Cooke J concluded:
[8] In my view the proceedings are plainly abusive … They are attempting to again relitigate a matter that has already been addressed by the Courts, including in a judicial review challenge to a decision of the Commissioner which was struck out as an abuse. In my view the Commissioner was plainly right to dismiss the complaint, and the judicial review challenge to his decision is also plainly an abuse of process.
95 Rabson v Judicial Conduct Commissioner [2018] NZHC 2053.
96 Rabson v Young, above n 90.
97 Rabson v Young, above n 88.
98 Rabson v Judicial Conduct Commissioner, above n 95, at [4].
99 At [5].
Subsequent appeals
[91] Mr Rabson sought to file a notice of appeal in the Court of Appeal, but the Registrar declined to accept the notice for filing as it was outside the statutory timeframe. Justice French declined an application for a review of that decision.100
My assessment
[92] I conclude that, for the reasons set out by Cooke J, the 2018 Commissioner proceeding was in its entirety totally without merit.
The 2019 Commissioner proceeding (Rabson v Judicial Conduct Commissioner, CIV- 2018-485-919, [2019] NZHC 2279)
The High Court decision
[93] Mr Rabson brought a further application for judicial review of the Commissioner’s decision that had been the subject of the 2018 Commissioner proceeding (which in turn related to the 2017 Commissioner proceeding).101 Justice Cooke described the complaint made in the 2019 Commissioner proceeding as “effectively the same” as that made in the 2018 Commissioner proceeding.102 The Commissioner applied to strike out the proceeding.
[94] Mr Rabson filed an application that Cooke J recuse himself on the basis that he had a “personal conflict of interest” from dealing with the 2018 Commissioner proceeding. Justice Cooke declined to recuse himself.103
[95] Mr Rabson also filed a memorandum contending that the Supreme Court should have been added to the proceeding, which Cooke J did not accept.104
[96] Justice Cooke struck out the proceeding on the basis that Mr Rabson was seeking to relitigate matters that had been finally determined against him and were
100 Rabson v Judicial Conduct Commissioner [2018] NZCA 507.
101 Rabson v Judicial Conduct Commissioner [2019] NZHC 2279.
102 At [12].
103 At [29].
104 At [32].
accordingly an abuse of process. Justice Cooke awarded indemnity costs to the Commissioner.
[97]In striking out the claim, Cooke J said:105
[13] There is no dispute that judicial review proceedings can be struck out as an abuse of process. …
[14] … In my view the central consideration is that Mr Rabson is seeking to relitigate in this proceeding what has already been finally determined against him in other proceedings on more than one occasion. The relevant principle preventing Mr Rabson doing this has been described in the following terms by the Supreme Court:
[28] The principle of finality in litigation gives rise to a rule of law that makes conclusive final determinations reached in the judicial process:
Unless a judgment of a Court is set aside on further appeal or otherwise set aside or amended according to law, it is conclusive as to the legal consequences it decides.
The rule reflects both the public interest in there being an end to litigation and the private interest of parties to court processes in not being subjected by their opponents to vexatious relitigation…
[15] That principle applies here. On 13 August 2018 I struck out Mr Rabson’s judicial review proceedings under r 5.35B on the basis it was an abuse of process. That finally resolved the issues raised in that proceeding.
[16] That decision applied the earlier decision of Faire J [the 2017 Commissioner proceeding] striking out the earlier judicial review proceedings on similar grounds. The issue has been considered and determined against Mr Rabson. For those reasons the current proceeding is an abuse of process and should be struck out.
[98] Justice Cooke went on to consider Mr Rabson’s argument that his complaint to the Commissioner did not seek to challenge the correctness of the decision made by Elias CJ, William Young, and O’Regan JJ, within the meaning of s 8(2) of the JCC Act. Their decision was to dismiss an application for leave to appeal to that Court against the decision of French J, upholding the decision of the Registrar not to dispense with security for costs. Mr Rabson argued that his complaint was that William Young and O’Regan JJ should never have sat to consider his application because they had been the parties to the underlying proceeding in question and had benefitted from the
105 Rabson v Judicial Conduct Commissioner, above n 101 (footnotes omitted).
costs award ultimately in issue. He argued that the complaint was about them sitting, not the decision they reached when they sat.
[99] Although recognising that Mr Rabson’s argument on this point might have some merit, Cooke J concluded that the argument could not prevent the strike-out application succeeding, for two reasons. First, the decisive reason, Mr Rabson was seeking to relitigate a proceeding which had already been finally determined.106 Second, the decision of the Commissioner was not solely, or even principally, based on a jurisdictional exclusion arising from s 8(2) of the JCC Act.107
Subsequent appeals
[100] Mr Rabson then filed an application for leave to appeal to the Supreme Court, in which he sought to add the Supreme Court as a second respondent. The Supreme Court ordered removal of the Court as a party on the basis that naming the Court was vexatious and an abuse of the Court’s process, and the application for leave to appeal was declined.108
[101] Mr Rabson also filed a notice of appeal in the Court of Appeal, again naming the Supreme Court as a second respondent. Justice Cooper made an order that the Supreme Court be removed and awarded costs against Mr Rabson.109 In dismissing the appeal, the Court of Appeal held:110
[9] It is clear that Mr Rabson’s conduct over a number of years now has involved the vexatious and repetitive commencement of proceedings and appeals all apparently concerning the same matter. The consequence is that this Court’s time, and that of the High Court and the Supreme Court, has been wasted time and time again.
[10] We direct the Registrar to refer a copy of this judgment to the Solicitor-General for the consideration of such further steps as she might consider appropriate having regard to s 166 of the Senior Courts Act 2016.
106 At [19].
107 At [20].
108 Rabson v Judicial Conduct Commissioner [2019] NZSC 128.
109 Rabson v Judicial Conduct Commissioner [2020] NZCA 47.
110 Rabson v Judicial Conduct Commissioner [2020] NZCA 247.
My assessment
[102] Justice Cooke observed that there might be “some merit” in Mr Rabson’s submission regarding s 8(2) of the JCC Act. I have considered whether that means the proceeding is not totally without merit in the sense of all causes of action being without merit, as the Court of Appeal required in Mawhinney. However, for the two reasons summarised by Cooke J, it is clear that the 2019 Commissioner proceeding was totally without merit and the s 167(2) criterion is satisfied. In that context, Mr Rabson’s submission about s 8(2) did not detract from the outcome.
The HRRT proceeding (Rabson v Solicitor-General, HRRT08/18, [2018] NZHRRT 37)
The Human Rights Review Tribunal decision
[103] Mr Rabson instituted proceedings in the Human Rights Review Tribunal under the Privacy Act 1993 relating to an email sent by Crown Counsel employed at Crown Law.111 The Solicitor-General applied to strike out Mr Rabson’s claim.
[104]The Tribunal described the context to the proceeding in the following terms:
[7] By email dated 8 June 2016 Mr Rabson made an information privacy request to Crown Law for the identity of the person who sent the email and "the reason behind it". He also requested information in relation to himself, the Malcolm Rabson Family Trust, The Gallagher Rabson Family Trust and Casino Properties Limited.
[8] On completion of his investigation the Privacy Commissioner by letter dated 19 May 2017 gave notice to Mr Rabson that he (the Commissioner) had reached the final view that Crown Law had not interfered with Mr Rabson's privacy and that PA, s 29(1 )(f) (legal professional privilege) had been properly relied on to justify withholding the information requested by Mr Rabson. There had been no interference with Mr Rabson's privacy. As required by the Act, the Commissioner advised Mr Rabson that he was free to initiate proceedings in the Tribunal.
[9] By letter dated 14 March 2018 addressed to the Tribunal and to the parties the Privacy Commissioner has confirmed that an investigation was conducted by him in relation to Mr Rabson's 8 June 2016 request. The complaint investigated was a possible breach of information privacy principle 6 (IPP 6). The Privacy Commissioner did not investigate Crown Law for sending allegedly damaging, misleading or defamatory comments.
111 Rabson v Solicitor-General [2018] NZHRRT 37.
[105] The Tribunal observed that it has jurisdiction to grant a remedy in proceedings under the Privacy Act only where there has been “an interference with the privacy of an individual”, as that term is defined in s 66 of the Privacy Act 1993.112 A plaintiff must establish either an action which has breached an information privacy principle (IPP) or a refusal to make personal information available in response to an information privacy request under IPP 6 or IPP 7.
[106] The Tribunal found Mr Rabson’s statement disclosed no arguable case under IPP 6.113 His complaint was in reality about the content of the Crown Law email. He did not complain of a denial of access to personal information; nor did he assert any reason why in the particular case the identity of the author of the email was “personal information” about him. The Tribunal concluded that absent such particularisation, the name of the author of a document is not personal information about the person referred to in that document.
[107] The Tribunal concluded that Mr Rabson’s statement of claim failed to allege facts tending to establish even the basic elements of a cause of action under IPP 6, read with s 66 of the Privacy Act, in that it did not allege an interference with privacy as defined in s 66 or explain in what way IPP 6 was alleged to have been breached.114 The Tribunal also emphasised that Mr Rabson was firm that his complaint was about the content of the email.115 As the Tribunal said:116
Mr Rabson is fundamentally mistaken as to the jurisdiction of the Tribunal and it is not possible to rescue his statement of claim… Mr Rabson has chosen not to plead a breach of IPP 6 in the statement of claim and the strike-out application must be determined on what has been pleaded, not on what might have been pleaded.
My assessment
[108] The Tribunal, in my view, correctly interpreted and applied its jurisdiction pursuant to IPP 6 and s 66 of the Privacy Act.
112 At [10].
113 At [15]-[18].
114 At [32].
115 At [33].
116 At [34].
[109] In considering its jurisdiction to strike out, the Tribunal appropriately applied s 115 of the Human Rights Act 1993 and r 15.1 of the High Court Rules 2016. In doing so, it considered and applied Apostolakis v Attorney-General No. 2 (Strike-Out Application)117 and Waterhouse v Contractors Bonding Limited.118
[110] In my assessment the arguments advanced by Mr Rabson before the Tribunal were bound to fail and the s 167(2) criterion is satisfied.
Appropriate exercise of discretion
[111] I have found that Mr Rabson has brought more than two proceedings that are totally without merit. I turn now to the second question, whether this is an appropriate case to exercise the discretion to make a s 166 order. In doing so, I consider how the qualifying proceedings were conducted and any wider circumstances that weigh for, or against, an order being made.119
Submissions
[112] The Attorney-General submitted an order is appropriate, given Mr Rabson has commenced 16 proceedings that are totally without merit, against different defendants. The Attorney-General submitted Mr Rabson’s claims are vexatious, often involving extravagant claims or scandalous allegations, or attempts to relitigate adverse decisions or breaching basic rules of civil justice,120 and most have been struck out at first instance.
[113] Mr Rabson again submitted that all proceedings commenced by him demonstrate his attempt to pursue his rights in line with the relationship property proceedings. He submitted the proceedings were not complex or tedious, but rather were all straightforward in the context of the relationship property proceedings. He again emphasised that the relationship property proceedings were not struck out.
117 Apostolakis v Attorney-General No. 2 (Strike-Out Application) [2017] NZHRRT 53.
118 Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [30]-[32].
119 Mawhinney v Auckland Council, above n 4, at [115].
120 Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [2]. Mr Faloon’s application for leave to appeal the Court of Appeal’s decision to the Supreme Court was dismissed: Faloon v Planning Tribunal at Wellington [2020] NZSC 124.
[114] Mr Rabson says his case is different from Mawhinney, where the proceedings in question covered a much longer time period. He also submits that in neither Mawhinney nor Faloon v Planning Tribunal at Wellington (cases relied on by the Attorney-General where an order was granted),121 were there decisions in favour of Mr Mawhinney or Mr Faloon, in contrast to his situation where he was successful in the relationship property proceedings.
Discussion
[115] The proceedings discussed above display various features of vexatious proceedings, which support the making of a s 166 order. They demonstrate a deeply entrenched pattern of behaviour, characterised by Mr Rabson’s refusal to accept adverse decisions; claims against a range of people and entities, in a number of forums; and failure to comply with the rules of the courts.
[116] The repetitive nature of Mr Rabson’s proceedings, most of which are collateral attacks on matters which have clearly been determined by the Courts, often multiple times, also supports the making of a s 166 order.
[117] The usual deterrents to unmeritorious litigation, such as cost, do not deter Mr Rabson. He is unrepresented in all his litigation. As Doogue J noted in Paterson v Lepionka & Co Investment Ltd:122
Although applications for strike out and security for costs are available to dismiss unmeritorious claims, I note this still causes considerable cost and inconvenience to the defendants, and uses court resources.
[118] The High Court in Mawhinney found that Mr Mawhinney continually brought proceedings about largely the same matters – resorting to litigation “at the drop of a hat”; making the same arguments over and over again; having no regard to forcing the other party to incur costs and largely failing to pay costs awarded against him.123 The same descriptors can be applied to Mr Rabson.
121 Faloon v Planning Tribunal at Wellington, above n 120.
122 Paterson v Lepionka & Co Investments Ltd [2020] NZHC 2184 at [159].
123 Auckland Council v Mawhinney, above n 2, at [121]–[125]. The Court of Appeal did not challenge the High Court’s view that the discretion may include consideration of how the qualifying proceedings were conducted and any wider circumstances that weigh for, or against, an order being made: Mawhinney v Auckland Council, above n 4, at [115].
[119] While I acknowledge Mr Rabson’s point that the relationship property proceedings were not necessarily without merit or vexatious, I emphasise that the Attorney-General does not allege that they were. Regardless of the merits of the relationship property proceedings, the subsequent proceedings discussed above are nonetheless vexatious in nature.
[120] I think it is highly likely that Mr Rabson’s conduct would continue if an order were not made. I conclude that an order under s 166 is necessary.
Terms of the order
[121] Having concluded that Mr Rabson meets the requirements in s 167 and that this is an appropriate case in which to exercise my discretion to make a s 166 order, I now turn to the question of what type of order to make and the appropriate length of that order.
Is a general order appropriate?
[122] The Court must apply the least restrictive outcome that will prevent unmeritorious proceedings and the outcome must be proportionate.
Submissions
[123] The Attorney-General seeks a general order, which would prevent Mr Rabson from commencing or continuing any proceeding. This is stricter than a limited or extended order, which would prevent Mr Rabson from bringing a suit only on a particular or related matter.
[124] The Attorney-General noted the wide range of defendants Mr Rabson has sued and the variety of issues he raises and, on that basis, submitted that a limited or extended order would be insufficient protection against Mr Rabson, and a general order is appropriate. Mr May did not cite any previous cases where a general order has been made under the Senior Courts Act regime, nor have I located any precedent.
[125]As I have noted, Mr Rabson opposes the making of any order.
Discussion
[126] Notwithstanding Mr Rabson’s submission that all of his proceedings are related to the relationship property proceedings, that is plainly not the case. Mr Rabson’s behaviour is not confined to a particular matter or set of matters. The nine proceedings I have found to be totally without merit are on a number of different, unrelated matters, and against five different respondents.
[127] I have carefully considered what would be the least restrictive order that would effectively restrain the kind of proceedings I have found to be totally without merit. A common feature of most of those proceedings is that they demonstrate a widening circle of defendants, mostly part of the machinery of justice – the courts and tribunals, judges, and court officials. However, it would be extremely difficult to frame an order so as to catch only proceedings within such an ill-defined category.
[128] In addition, not all of the proceedings can be characterised in this way, for example the Transparency International proceeding, and the two proceedings against the Attorney-General (the BORA declarations proceeding and the Cabinet proceeding). In addition, Mr Rabson has sometimes sought to involve himself in proceedings in which he is not a party and has no direct interest, for example the Erceg proceeding.
[129] As Mr May submitted, Mr Rabson can be properly described as an “almost compulsive litigant against a widening circle of defendants”, the description used by the High Court in Mawhinney in that Court’s assessment under s 166.124
[130] Mr Rabson has commenced seven proceedings against the Commissioner, seeking judicial review of the Commissioner’s decisions. In four of those proceedings the judges against whose decision or action he had complained to the Commissioner were included as second respondents and, in another, Mr Rabson sought to add the Supreme Court as a respondent at the appellate stage.
124 At [52], citing Attorney-General v Heenan [2009] NZAR 763 (HC) at [138].
[131] Mr Rabson has brought three proceedings against the Registrar of the Supreme Court for actions taken, or refused, by the Registrar – both in proceedings involving Mr Rabson, and in matters in which Mr Rabson has no apparent interest.
[132] Mr Rabson has brought three proceedings against the Attorney-General, all of which were in relation to grievances Mr Rabson had against Court of Appeal or Supreme Court judges. Those proceedings were a collateral attack against the decisions of the Court of Appeal and Supreme Court.
[133] It is also correct, as the Attorney-General submitted, that within the relevant proceedings Mr Rabson has made a number of extravagant claims or scandalous allegations, which he has no prospect of substantiating or justifying. These include, in the proceedings I have considered above:125
(a)an allegation of violations of the doctrine that no judge can act in their own cause, and allegations of complicity in violations by other Judges;126 and
(b)allegations that the judges of the Supreme Court were not complying with the law.127
[134] Almost all of Mr Rabson’s proceedings have been struck out in the first instance and have frequently been described by the courts as:
(a)disclosing no reasonably arguable cause of action;
(b)hopeless;
(c)an abuse of process;
125 There are also allegations of illegal or criminal conduct in Rabson v Judicial Conduct Commissioner [2016] NZHC 2539.
126 Rabson v Judicial Conduct Commissioner, above n 75; and Rabson v Judicial Conduct Commissioner, above n 95.
127 Rabson v Attorney-General, above n 68; and Rabson v Attorney-General, above n 60.
(d)an impermissible collateral attack on judgments and decisions of Senior Courts; and
(e)frivolous and vexatious.
[135] Overall, Mr Rabson’s conduct in all of these proceedings can be characterised as repeated attempts to relitigate decisions adverse to him, or judicial decisions in general, by collateral means.
[136] I accept the submission for the Attorney-General that Mr Rabson’s conduct offends against at least three of the “basic rules” of civil justice that are needed to maintain order, as identified by the Court of Appeal in Faloon v Planning Tribunal at Wellington:128
(a)Standing: proceedings must involve claims by persons with a legitimate interest in the subject of the dispute.
(b)Appeal: generally there is only one right of appeal, but a right to seek leave to bring a second appeal.
(c)Finality: once those rights are exhausted, that is that and the final judicial determination is not to be subverted by collateral challenge.
[137] For all of these reasons, I conclude that a general order is necessary and appropriate.
When should the order expire?
[138] The Attorney-General seeks an order restraining Mr Rabson from commencing or continuing proceedings for five years, the maximum duration of an order. The question is whether there are exceptional circumstances that justify this extended length of time, bearing in mind the BORA implications of the order.
128 Faloon v Planning Tribunal at Wellington, above n 120, at [2].
[139] An order of five years was granted by Hinton J in the High Court in Mawhinney.129 The proceedings that qualified as vexatious had been ongoing for 13 years. Justice Hinton considered that a five-year limitation on Mr Mawhinney was minor by comparison.130
[140] The Court of Appeal noted that the applicant Council’s original application for the order was silent on the duration of the order sought and made no reference to matters said to constitute exceptional circumstances. Nor did the Council address the High Court on whether there were exceptional circumstances which justified a five-year order.131 That, it said, raised a fairness issue to Mr Mawhinney.132 For that reason, and because the Court found that the matters which were said to constitute exceptional circumstances were not sufficiently particularised by the High Court, it substituted an order of three years.
[141] In Paterson, Doogue J declined to grant an order for five years where the litigation had been ongoing for four years, given the “caution the courts need to exercise when restricting a person’s access to justice”.133
[142] In the Attorney-General’s submission, the issues that arose in Mawhinney regarding the length of the order sought and the reasons for that do not arise in this case. The Attorney-General’s application sought an order for a period of five years, and the Attorney-General set out the basis for seeking a five-year order in its written submissions and expanded on that in oral argument before me. The Attorney-General’s reasons are that:
(a)Mr Rabson’s unmeritorious litigation is extensive and prolific, with him commencing at least 16 proceedings that were totally without merit over the last seven years. Those proceedings were cited as grounds for the application, as was the accompanying memorandum of counsel
129 Auckland Council v Mawhinney, above n 2.
130 At [159].
131 Mawhinney v Auckland Council, above n 4, at [123].
132 At 125].
133 Paterson v Lepionka & Co Investments Ltd , above n 122, at [167].
which explained the reasons for seeking a five-year order, by reference to those cases.
(b)The proceedings involved several different matters and defendants.
(c)Almost all proceedings have been struck out as legally untenable and/or an abuse of process, with Mr Rabson having virtually no success in any of the decisions arising from the proceedings.
(d)Mr Rabson has shown almost no regard for the rule of finality and has thus shown a determination to bring and then continue proceedings that are totally without merit, despite the lack of merit being made abundantly clear to him at the first available opportunity.
(e)The extent of Mr Rabson’s abuse of the judicial process within a concentrated period of time therefore constitutes exceptional circumstances and justifies an order for a period of five years. A period of five years is reasonably necessary given the length of time, number and scale of Mr Rabson’s unmeritorious proceedings and is an entirely proportionate response to Mr Rabson’s proceedings.
[143] I agree that this case is different from Mawhinney. Here the duration of the order sought was plain from the outset, and the circumstances said to be exceptional were well-canvassed in the Attorney-General’s submissions. No question of unfairness to Mr Rabson arises. The other distinguishing feature is that I have reviewed and set out in this judgment nine proceedings, spanning six years and five parties across a range of topics, which I have concluded were totally without merit. I am satisfied that the exceptional circumstances threshold is met.
[144] However, I am conscious of the significant limitation that a general order, whether for three or five years, would impose on Mr Rabson’s right of access to justice (although under s 169(4) Mr Rabson would be able to seek leave to continue or commence a civil proceeding). On balance, I have concluded that, in the exercise of my discretion under s 168(2), a term of three years is appropriate.
Result
[145]I make an order in the following terms:
Malcolm Edward Rabson, in any capacity, is restrained from commencing or continuing any civil proceeding (or matter arising out of a civil proceeding) in a senior court, another court, or a tribunal, for a period of three years.
Gwyn J
1
45
1