Rabson v Judicial Conduct Commissioner - [2018] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-618

[2018] NZHC 2053

BETWEEN
MALCOLM RABSON

Applicant

AND

JUDICIAL CONDUCT COMMISSIONER

Respondent

AND

THE ATTORNEY-GENERAL

Invited to intervene in the public interest

Hearing: On the papers

Counsel:

M Rabson in person

Judgment:

13 August 2018

JUDGMENT OF COOKE J

[1] These judicial review proceedings dated 8 August have been filed by the applicant in the Wellington registry. Pursuant to r 5.35A the proceedings were referred to me as Duty Judge by a Deputy Registrar. Rule 5.35A provides:

Registrar may refer plainly abusive proceeding to Judge before service

(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

(a) as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b) until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached

RABSON v JUDICIAL CONDUCT COMMISSIONER [2018] NZHC 2053 [13 August 2018]

memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

[2] And Rule 5.35B provides:

Judge’s powers to make orders and give directions before service

(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(2)The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—

(a) the proceeding be struck out:

(b) the proceeding be stayed until further order:

(c) documents for service be kept by the court and not be served until the stay is lifted:

(d) no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

(3)Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4)A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate…

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.

Keep reading for free

Create a free CaseChat account to read Rabson v Judicial Conduct Commissioner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 2053
Decision Date: 13 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Malcolm Rabson initiated judicial review proceedings against the Judicial Conduct Commissioner, challenging a decision made by the Commissioner. The matter was heard in the Wellington Registry and was referred to the Duty Judge, Cooke J, under rule 5.35A as it was considered an abuse of process. The proceedings were ultimately struck out by the Court as plainly abusive. The background to the case involves Rabson's numerous complaints against the Judicial Conduct Commissioner, which have all been dismissed as misconceived, vexatious, and falling outside the Commissioner's jurisdiction. Rabson's latest complaint related to the conduct of certain Supreme Court Judges, which the Commissioner also dismissed.

The legal issue before the Court was whether the judicial review proceedings were plainly an abuse of process. The Court found that the proceedings were indeed an abuse, as they sought to relitigate matters that had already been addressed by the Court, including a previous judicial review challenge to a decision of the Commissioner that was struck out as an abuse of process. The Court held that the Commissioner was correct in dismissing the complaint and that the judicial review challenge to the Commissioner's decision was also plainly an abuse of process.

The Court exercised its discretion under rule 5.35B to strike out the proceedings, as they were plainly abusive. The Court also noted that Rabson had a right to appeal the decision and directed that a copy of the decision should be provided to the Commissioner.

The Court's decision effectively dismissed Rabson's judicial review challenge to the Judicial Conduct Commissioner and struck out the proceedings as an abuse of process. The Court's judgment highlights the importance of respecting the jurisdiction and authority of the Judicial Conduct Commissioner and the Courts, and the need to avoid relitigation of matters that have already been addressed.

Orders