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 Judge.

Background

[3]    The proceedings challenge a decision of the Judicial Conduct Commissioner by way of judicial review. The decision of the Commissioner that is subject to challenge describes the background in the following terms:1

1      Footnotes omitted.

[3]        On 16 August 2017, Justice French declined Mr Rabson’s application for review of the Court of Appeal Registrar’s decision refusing to dispense with security for costs.

[4]        The backdrop to that decision was that Mr Rabson had sought judicial review of a decision by the Judicial Conduct Commissioner regarding a complaint he had made against five Judges of the Supreme Court. He named the Judges as second respondents. The Judges applied successfully for an order to  remove  them  as  respondents  and  an  order  for  costs  against  Mr Rabson.

[5]        Mr Rabson appealed against the costs order. He sought dispensation from payment of security for costs but the Registrar of the Court of Appeal declined to grant dispensation. On Mr Rabson’s application to review the Registrar’s decision, Justice French said his proposed appeal could “fairly be described as hopeless”. She explained:

[14]  ... I consider the Registrar was correct when she found it did not raise any issue of public interest and that it is not an appeal a reasonable and solvent litigant would pursue. Not only are the proposed grounds of appeal weak, the amount at stake is very small and much less than the likely costs of defending the appeal. It would be unjust to require the second respondent to defend the order under appeal without the usual protection as to costs provided by security.

[15]  The application for review of the Registrar's decision refusing to dispense with payment of security for costs is accordingly declined.

[6]        Mr Rabson applied to the Supreme Court for leave to appeal against Justice French’s decision. In its 28 September 2017 decision, the Court observed that as a result of earlier proceedings against the Judicial Conduct Commissioner in which he had named Judges as respondents, Mr Rabson knew that:

(a)   The High Court has held, in decisions which have not been successfully challenged, that the joinder of judges in review proceedings against the Judicial Conduct Commissioner is improper;

(b)   If he does so, they will be removed and he will be ordered to pay costs on their removal; and

(c)   If he wishes to proceed with an appeal to the Court of Appeal he will be required to provide security for costs on the application of the principles established in Reekie v Attorney-General.

[3]  He also knows that if he seeks leave to appeal to this Court against non-dispensation of the requirement to provide security, his application will have to be dealt with by a panel of judges which will include one or more of the judges originally named as parties to the review proceedings and in whose nominal favour the order for costs was made.

[4]   We are satisfied that the applicant’s conduct constitutes an abuse of process, exemplified by circularity, repetitiveness and general

vexatiousness. It is accordingly dismissed. A copy of this judgment is to be provided to the Solicitor-General.

[7]        Mr Rabson applied for recall of the Court’s decision. In a short judgment dated 1 November 2017, the Court dismissed the application in the following terms:

[2] The application for recall continues the abuse of process. It is accordingly dismissed. A copy of this judgment is to be provided to the Solicitor-General.

[4]    Mr Rabson’s complaint related to the conduct of the Chief Justice, and William-Young and O’Regan JJ in the 28 September 2017 decision. He contended that they had acted improperly as judges in their own cause.

[5]    The Commissioner concluded that the complaints were misconceived, vexatious and that they fell outside his jurisdiction. Amongst the Commissioner’s reasons were his conclusion that:

To complain to me about the Supreme Court Judges in these circumstances amounts, in my view, to further, unjustified relitigation of the decisions of the courts and is an abuse of the judicial conduct complaint process.

Decision of the Court

[6]    Under r 5.35B I may, of my own initiative, make an order striking out the proceedings if I am of the view that they are plainly an abuse of process.

[7]    When striking out the earlier judicial review challenge to the Judicial Conduct Commissioner Faire J held:2

[31]      The respondent relies on further or additional grounds to strike out the statement of claim. It is submitted that it is an abuse of process.

[32]      In support counsel has noted that the applicant has made 64 complaints to the Commissioner as at 30 March 2017. He has brought four judicial reviews of the Commissioner, all of which were struck out. He has had indemnity costs awarded against him in each case.

[33]      The statement of claim involves a further complaint by the applicant about a decision of a Court. It relied solely on that decision as the basis for serious allegations in circumstances where he was aware that the Commissioner did not have jurisdiction to call into question the correctness or legality of the decision. In addition, as I have recorded he expressly stated that

2      Rabson v Judicial Conduct Commissioner [2017] NZHC 1249 at [31]–[33].

he would judicially review the Commissioner if his complaint was dismissed on this basis.

[8]    In my view the proceedings are plainly abusive for essentially the same reasons. They are attempting to again relitigate a matter that has already been addressed by the Courts, including in a judicial review challenge to a decision of the Commissioner which was struck out as an abuse. In my view the Commissioner was plainly right to dismiss the complaint, and the judicial review challenge to his decision is also plainly an abuse of process.

[9]    Pursuant to r 5.35B I record that the applicant has a right to appeal against this decision. I also direct that a copy of this decision should be provided to the respondent.

Cooke J