(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…

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 [2013] NZHC 1018
Case: [2013] NZHC 1018
Decision Date: 8 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Malcolm Edward Rabson filed a case against the Attorney-General, seeking a declaration that certain decisions made by the Court of Appeal and the Supreme Court breached his rights under the New Zealand Bill of Rights Act 1990. Rabson's case stems from a property dispute with his former partner, Ms. Gallagher. The Court of Appeal had determined that Ms. Gallagher was entitled to a specific share of the relationship property, and the Supreme Court had declined Rabson's appeal against this decision. Rabson argued that the Court of Appeal's judgment did not consider the actual sale prices of the properties or the expenses associated with their sale, leaving him to bear the costs and losses. The court had to decide whether Rabson's proceeding should be struck out because it sought to challenge decisions made by higher courts or if it was an attempt to re-litigate previous judgments.

The court found that Rabson's proceeding should be struck out because the High Court does not have the jurisdiction to review decisions made by the Court of Appeal or the Supreme Court, even when exercising its inherent jurisdiction. The court concluded that Rabson's proceeding was an impermissible collateral attack on the existing judgments and decisions of the higher courts. Additionally, the court found that Rabson's proceeding breached the doctrine of res judicata, as it sought to address issues that had already been dealt with in previous proceedings. This doctrine ensures finality in litigation and prevents parties from being subject to the same proceedings twice.

The court struck out Rabson's proceeding and awarded costs to the Attorney-General. If the parties could not agree on the costs, they were given leave to file memoranda explaining their position on costs within ten working days of the date of this judgment.

Orders