Rabson v Attorney-General - [2016] NZHC 2876

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-149 [2016] NZHC 2876

UNDER
the Judicature Amendment Act 1972, the

New Zealand Bill of Rights Act 1990, and the Declaratory Judgments Act 1908

IN THE MATTER OF

a Judicial Review or Declaratory Relief

BETWEEN

MALCOLM EDWARD RABSON Applicant

AND

ATTORNEY-GENERAL Respondent

On papers

Judgment:

30 November 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
3 pm on the 30th day of November 2016

RABSON v ATTORNEY-GENERAL [2016] NZHC 2876 [30 November 2016]

[1] Mr Rabson has filed judicial review proceedings in relation to an alleged failure by the Attorney-General to notify Cabinet of “the non-compliance with existing law by Supreme Court of New Zealand judges”. He says that there was an obligation to do this by virtue of para 4.3 of the Cabinet Manual, which states that the Attorney-General has a responsibility to notify Cabinet of proposals or government actions that do not comply with existing law and to propose how such non-compliance should be remedied. Mr Rabson is concerned in particular with the Supreme Court’s decision in Greer v Smith which he considers to be in breach of
s 28(3) of the Supreme Court Act 2003 (the SCA).1

[2] The Attorney-General has applied to strike out the claim on the grounds that it does not disclose any reasonably arguable cause of action. In particular, he says that:

(a) cl 4.3 imposes no obligation on him in relation to the actions of the judiciary;

(b)cl 4.3 does not involve any statutory power or statutory power of decision;

(c) this Court has no jurisdiction to do what Mr Rabson seeks which is, in effect, to review or scrutinise a decision of the Supreme Court and to find that it is wrongly decided; and

(d)the Supreme Court was, in any event, exercising an internal and administrative function which fell within its inherent powers to control its own processes and practices.

[3] In addition, the Attorney-General says that the claim is frivolous and vexatious and an abuse of process.

[4] Mr Rabson agreed that the application could be dealt with on the papers.

1 Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785.

Greer v Smith

[5] The Supreme Court's decision in Greer v Smith related to a request by Mr Vince Siemer for a review of O'Regan J’s refusal to allow him access to certain documents on the Supreme Court record. The Court held that Mr Siemer had no statutory right to seek review of that decision and that s 28 of the SCA did not confer upon the Court a statutory jurisdiction in that regard. It is this aspect of the decision with which Mr Rabson disagrees.

[6] As I have said, the decision prompted Mr Rabson to ask the Attorney-General to notify Cabinet of the alleged “non-compliance” by the Court with s 28. The Attorney-General did not do so. These proceedings followed.

Strike out

[7] High Court Rule 15.1(1) provides that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rabson v Attorney-General

Details

AGLC: Rabson v Attorney-General [2016] NZHC 2876
Case: [2016] NZHC 2876
Decision Date: 30 November 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Malcolm Edward Rabson brought judicial review proceedings against the Attorney-General, arguing that the Attorney-General failed to notify Cabinet of the non-compliance with existing law by Supreme Court judges. This followed the Supreme Court’s decision in Greer v Smith, which Mr Rabson believed breached section 28(3) of the Supreme Court Act 2003. The Attorney-General applied to strike out the claim, asserting that the Cabinet Manual did not impose an obligation on him in relation to judicial actions and that the Court lacked jurisdiction to review Supreme Court decisions.

The court needed to determine whether the Cabinet Manual imposed an obligation on the Attorney-General to notify Cabinet of judicial non-compliance and if the Court had jurisdiction to review the Supreme Court’s decision. Additionally, the court had to consider whether the proceedings constituted an abuse of process.

The court held that the Cabinet Manual was not a primary source of constitutional law and was not independently justiciable. It found that the Manual's paragraph 4.3 did not impose an obligation on the Attorney-General concerning judicial actions, as it was concerned with the Attorney-General’s relationship with the executive branch. The court also determined that it lacked jurisdiction to review the Supreme Court’s decision on the merits, as such matters could only be addressed through appeal. Lastly, the court found that the proceedings were an abuse of process, as they attempted to re-litigate a matter already determined against Mr Siemer.

The application for judicial review or declaratory relief was struck out, and the respondent was entitled to costs.

Orders