Rabson v Attorney-General

[2013] NZHC 1018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-000167 [2013] NZHC 1018

IN THE MATTER OF     an Application under the New Zealand Bill of Rights Act 1990 for declaratory relief

BETWEEN  MALCOLM EDWARD RABSON Plaintiff

ANDATTORNEY-GENERAL Defendant

Hearing:         8 May 2013

Counsel:         Plaintiff in person

D L Harris for Respondent

Judgment:      8 May 2013

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 4.50 pm on the 8th day of May 2013.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      The issues I have to determine are encapsulated in the following questions:

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

RABSON V ATTORNEY-GENERAL HC WN CIV-2013-485-000167 [8 May 2013]

(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?

Background

[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 claim1 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 $1,491,000.2     The Court of Appeal adjusted the value of Ms Gallagher’s share down to $1,239,081.3

(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.

1      Because this is a strike-out application I proceed on the assumption that the matters pleaded in the statement of claim are correct: refer Couch v Attorney-General [2000] NZSC 45, [2008]

3 NZLR 725 at [33] and Attorney-General v Prince [1998] 1 NZLR 262 at 267 (CA).

2      Rabson v Gallagher HC Wellington CIV-2008-485-2279, 1 October 2010.

3      Rabson v Gallagher [2011] NZCA 669.

[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.4     In doing so the Supreme

Court said:5

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 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.6

[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 2012.7

[12]     In his proceeding before me, Mr Rabson seeks:

(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.

(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.

Limits to the High Court’s jurisdiction

[13]     Mr Rabson is not a lawyer.  His lack of legal training no doubt explains that his proceeding has been commenced under a misapprehension as to the scope of the High Court’s jurisdiction.

[14]     While the High Court is a Court of inherent jurisdiction8 there are important limits to its jurisdiction.  One of the limits to its jurisdiction is that the High Court is bound by decisions of the Court of Appeal and Supreme Court.  Under our hierarchal judicial system the High Court can only hear appeals from civil and some criminal cases heard in the District Courts, including cases heard in the Family Courts and Youth Courts.  The High Court cannot review decisions of the Court of Appeal or Supreme Court even when it is asked to exercise its inherent jurisdiction.

[15]     In the present case Mr Rabson is asking the High Court to review and rule on the validity of decisions made by the Court of Appeal and Supreme Court.  Because the High Court does not have the jurisdiction to consider Mr Rabson’s proceeding it must be struck out on jurisdictional grounds.

Collateral attack on existing decisions

[16]     Mr Rabson argues his proceeding is not an attack on decisions of the Court of Appeal or the Supreme Court because in his current proceedings he is seeking declarations about whether his rights under s 27(1) of the NZBORA have been breached.  He also says his current proceeding is not an attempt to re-litigate the decisions of the Court of Appeal and Supreme Court I have referred to.

[17]     Unfortunately for Mr Rabson it is clear that if the High Court were to hear and determine his proceeding it would inevitably involve itself in an assessment of

the merits of the judgments and decisions which Mr Rabson disputes and the result

8      Judicature Act 1908, s 16.

could impugn those decisions.  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.9

[18]     Alternatively, Mr Rabson’s proceeding constitutes an attempt to re-litigate the judgments of the Court of Appeal and the Supreme Court to which I have referred and therefore breaches the doctrine of res judicata.

[19]     The doctrine of res judicata prevents the Court from opening a matter that has already been subject to litigation, to address issues which were or should have been dealt with as part of previous proceedings.   It ensures finality in litigation and prevents parties being subject to the same proceedings twice.10

Conclusion

[20]     Mr Rabson’s proceeding must be struck out because:

(1)the High Court does not have the jurisdiction to declare that decisions of the Court of Appeal and Supreme Court breach his rights affirmed in the NZBORA;

(2)his proceeding is an impermissible collateral attack on judgments and decisions issued by the Court of Appeal and Supreme Court, and/or breaches the doctrine of res judicata.

[21]     The Crown  is  entitled  to  costs.    If agreement  cannot  be reached  on  the question of costs leave is given to the parties to file memoranda explaining their

position on costs within ten working days of the date of this judgment.

9      See by analogy Hunter v Chief Constable [1982] AC 529 and Daniels v Thompson [1998]

3 NZLR 22 (CA). See also Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7 at [65], requiring in civil proceedings an extra element of vexatiousness or unfairness to the parties to the original proceedings.

10     Henderson v Henderson (1843) 3 Hare 100 at 115 and Johnson v Gore Wood & Co (a firm)

[2002] 2 AC 1 (HL) as cited in Contact Energy Ltd v Attorney-General [2009] NZCA 351.

D B Collins J

Solicitors:

Crown Law Office, Wellington for Respondent