Rabson v Judicial Conduct Commissioner - [2019] NZSC 128

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 98/2019
[2019] NZSC 128

BETWEEN	MALCOLM EDWARD RABSON Applicant
AND	JUDICIAL CONDUCT COMMISSIONER Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person N M H Whittington and M A Hori Te Pa for Respondent
Judgment:	18 November 2019

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe Supreme Court of New Zealand is removed as a proposed party from this proceeding.

CMr Rabson is to pay costs of $250 to the Crown Law Office.

____________________________________________________________________

REASONS

Introduction

In a judgment delivered on 11 September 2019, Cooke J struck out a claim for judicial review brought by the applicant, Mr Rabson.[1] Mr Rabson seeks leave to appeal direct to this Court from that decision. The Judicial Conduct Commissioner (the Commissioner) abides the decision of the Court on the application for leave.

Background

[1]Rabson v Judicial Conduct Commissioner [2019] NZHC 2279 [HC judgment].

The background is set out in the judgment of Cooke J.[2] For present purposes we need only note the points which follow.
[2]At [3]–[12].
The present application relates to the third in a series of judicial review applications challenging decisions of the Commissioner. In the first of these judicial review applications, five Judges of this Court including William Young and O’Regan JJ were named as respondents. On the application of the Crown Law Office acting as counsel for the Judges, the Judges were removed as respondents and Faire J later ordered Mr Rabson to pay costs of $777.50 in respect of this step.[3] Faire J subsequently struck out the judicial review application as an abuse of process.[4]
[3]Rabson v Judicial Conduct Commissioner HC Wellington CIV-2017-485-133, 8 June 2017.
[4]Rabson v Judicial Conduct Commissioner [2017] NZHC 1249.
The second application for judicial review in this series followed on from a decision of this Court dismissing an application for leave to appeal filed by Mr Rabson as an abuse of process.[5] The panel dealing with this application comprised of Elias CJ, William Young and O’Regan JJ.
[5]Rabson v Young [2017] NZSC 146. Mr Rabson sought leave to appeal from a decision of French J upholding a decision not to dispense with security for costs: Rabson v Judicial Conduct Commissioner [2017] NZCA 349.
Mr Rabson complained to the Commissioner that William Young and O’Regan JJ were two of the judges who he had initially named as respondents. He claimed the Judges were beneficiaries of the costs award of $777.50 and should not have dealt with his application for leave. The Commissioner dismissed the complaint under ss 16(1)(a) and (d) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the JCC Act).
Mr Rabson then attempted to file the second judicial review proceeding. The proceeding was not accepted for filing by the High Court. Cooke J exercised the power under r 5.35B of the High Court Rules 2016 to dismiss the proceeding as an…

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.

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Details

Case: [2019] NZSC 128
Decision Date: 18 November 2019

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr. Malcolm Edward Rabson sought leave to appeal directly to the Court against a decision of Cooke J, who had struck out a claim for judicial review that Mr. Rabson had brought against the Judicial Conduct Commissioner. The background of this case involves a series of judicial review applications brought by Mr. Rabson against the Commissioner, all of which had been previously dismissed. The third application, which was the subject of the present appeal, was also dismissed by Cooke J on the grounds that it was an abuse of process. Mr. Rabson argued that the strike-out was unlawful and sought to appeal directly to the Supreme Court, claiming that the principles governing strike-out had not been applied to his case. The Court found that there were no exceptional circumstances that would justify a direct appeal to the Court, and that the proposed appeal would be fact-specific rather than raising any question of general or public importance. The Court also found that the appearance of a miscarriage of justice was not present in this case. The application for leave to appeal was dismissed, and the Supreme Court was removed as a proposed party in the proceedings. Mr. Rabson was ordered to pay costs of $250 to the Crown Law Office.

The Court considered whether there were exceptional circumstances that would justify a direct appeal to the Court, and whether the principles governing strike-out had been applied to Mr. Rabson's case. The Court found that there were no such exceptional circumstances, and that the proposed appeal would be fact-specific rather than raising any question of general or public importance. The Court also found that the appearance of a miscarriage of justice was not present in this case, as Mr. Rabson had already been given multiple opportunities to bring his claims before the Court. The Court found that the principles governing strike-out had been applied to Mr. Rabson's case, and that the Commissioner's decision was not "solely, or even principally" based on the jurisdictional exclusion in s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The application for leave to appeal was dismissed, and Mr. Rabson was ordered to pay costs of $250 to the Crown Law Office.

The Supreme Court of New Zealand dismissed the application for leave to appeal, removed the Court as a proposed party in the proceedings, and ordered Mr. Rabson to pay costs of $250 to the Crown Law Office. The Court found that there were no exceptional circumstances that would justify a direct appeal to the Court, and that the proposed appeal would be fact-specific rather than raising any question of general or public importance. The Court also found that the appearance of a miscarriage of justice was not present in this case, as Mr. Rabson had already been given multiple opportunities to bring his claims before the Court. The Court found that the principles governing strike-out had been applied to Mr. Rabson's case, and that the Commissioner's decision was not "solely, or even principally" based on the jurisdictional exclusion in s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. This decision reinforces the importance of the principles governing strike-out, and the need for litigants to bring their claims before the Court in a timely and appropriate manner.

Orders