Rabson v Judicial Conduct Commissioner
[2017] NZHC 1249
•8 June 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2017-485-000133 [2017] NZHC 1249
BETWEEN MALCOLM EDWARD RABSON
Applicant
AND
JUDICIAL CONDUCT COMMISSIONER Respondent
Hearing: (On the papers) Judgment:
8 June 2017
JUDGMENT OF FAIRE J
Introduction
[1] The respondent applies to strike out the applicant’s statement of claim. The
second respondents1 were removed as parties to the proceedings by Ellis J on 7 April
2017.
[2] The respondent’s application relies on r 15.1 of the High Court Rules and in particular, alleges that the statement of claim discloses no reasonably arguable cause of action. Additionally, and alternatively, the respondent alleges that the statement of claim is frivolous or vexatious or otherwise an abuse of process.
The applicant’s position
[3] The statement of claim seeks relief by judicial review. It pleads two grounds: (1) procedural impropriety; and
1 Justices William Young, Arnold, Glazebrook, Ellen France and O’Regan.
RABSON v JUDICIAL CONDUCT COMMISSIONER [2017] NZHC 1249 [8 June 2017]
(2) breach of natural justice. [4] The relief sought are findings that:
(a) the respondent breached his statutory obligation of confidentiality under s 19(1) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (JCC Act); and
(b)the dismissal of the applicant’s complaints under s 16(1)(d) of the JCC Act without reasons was a breach of natural justice and inferred apparent bias.
[5] The applicant has:
(a) not filed a notice of opposition; and
(b) not filed submissions in opposition.
[6] That is surprising because his email to the Court dated 5 April 2017 advised he was in favour of a timetable proposed by the respondents in a joint memorandum and did not take issue otherwise with their joint memorandum.
[7] The joint memorandum and email led to a minute being issued by Ellis J on 7
April 2017, which made consent orders in terms of the timetable proposed and that the strike-out application be determined on the papers.
[8] The time set for the notice of opposition was 27 April 2017. The time set for submissions and a bundle of authorities to be filed by the applicant was 26 May
2017.
[9] The Court has received submissions and a bundle of authorities from the respondent.
[10] Counsel for the respondent summarised the principles applicable in a strike- out application. Counsel referred to r 15.1 to which I have made reference and then provided the following summary, which I endorse:2
5 Strike out principles
…
5.2In Siemer v Judicial Conduct Commissioner, Kós J observed of strike out causes of action that are untenable:3
“The jurisdiction is exercised sparingly. Causes of action may be struck out only if so untenable that they cannot succeed. Facts pleaded are treated as true unless self- evidently speculative or false. These principles apply to judicial review as much as to general proceedings”.
5.3A frivolous proceeding does not use the Court’s process properly. A vexatious proceeding involves some element of vexation beyond the vexation caused to defendants by most proceedings. There has to be an element of impropriety, often a procedural impropriety.4 In Reekie v Attorney-General the Supreme Court recognised that:5
“Vexatiousness might be manifested, for instance, by the unreasonable and tendentious conduct of litigation, extreme claims made against other people involved in the case or perhaps a history of unsuccessful proceedings and unmet costs orders.
5.4An abuse of process captures all other instances of misuse of the Court’s process. The Court has the power to strike proceedings out on this ground under r 15.1(d) and in its inherent jurisdiction.6 The power to dismiss a proceeding as an abuse of process has been described as:
(a) an “inherent power [of the court] to prevent misuse of its procedure which … would … be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”;7
2 Submissions of Respondent, 12 May 2017.
3 Siemer v Judicial Conduct Commissioner [2013] NZHC 1853 at [13]. See also Rabson v Judicial Conduct Commissioner [2016] NZHC 2539 at [28]; Rabson v Judicial Conduct Commissioner [2016] NZHC 3162 at [10]; Rabson v Judicial Conduct Commissioner [2017]
NZHC 540 at [23].
4 McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR 15.1.04].
5 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [39].
6 Bradbury v Judicial Conduct Commissioner [2014] NZCA 441 at [100]-[105].
7 Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 cited by the Supreme Court in Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [61].
(b) a “broad, merits-based judgment”, incapable of capture in hard and fast rules of determination and not limited to further litigation between the same parties or their privies;8
(c) an independent duty of the Court to prevent abuse, not limited to fixed categories.9
5.5Recognised categories of abuse include where an application is a collateral attack upon court determinations,10 and where it is inevitable a remedy will be refused even if one or more grounds of review are made out.11 In this context the term “abuse” is not necessarily pejorative. There does not need to be a deliberate flouting or exploitation of the system.12
The complaint
[11] The complaint lodged to the respondent on 1 December 2016 alleged that
Ellen France J should not have participated in issuing a minute on 28 November
2016 given it was her decision of 21 November 2016 that the applicant sought to review.13 The applicant described Ellen France J as having a “conflict of interest” and acting in her own case. The other Supreme Court Judges previously named as second respondents were said to be complicit in Ellen France J’s violation of the fundamental legal doctrine that no Judge can act in their own cause.
[12] The applicant pleads that the secret nature of the minute supports his claim the other Supreme Court Judges were complicit in Ellen France J’s conflict. He criticised the “refusal to either properly record the Judgment or even call it a judgment” and the use of a “private unrecorded Minute”. He finished his complaint by saying “if you attempt to claim no jurisdiction in this complaint you will be
judicially reviewed”.
8 Lai v Chamberlains, above n 7, at [62] citing Lord Bingham in Johnson v Gore Wood & Co (a
Firm) (No 1) [2002] 2 AC 1 at 31.
9 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) cited in Lai v Chamberlains, above n 7, at [63].
10 See for instance: Colman v Attorney-General [2013] NZCA 92 at [10]-[13] and [3] and, in relation to a review of the Commissioner: Rabson v Judicial Conduct Commissioner [2015]
NZHC 714, [2015] NZAR 831 at [14].
11 Rabson v Judicial Conduct Commissioner [2016] NZHC 2539 at [31] citing Maddever v
Umawera School Board of Trustees [1933] 2 NZLR 478 (HC) at 502.
12 Simpson v Whakatane District Court [2006] NZAR 247 (HC) at [67].
13 Rabson v Shephard [2016] NZSC 152.
[13] The respondent issued a written decision on 1 March 2017. It dealt with seven complaints against the Supreme Court Judges previously named as second respondents. All complaints concerned the minute issued by the Court on 28
November 2016.
[14] The first respondent noted the provisions of s 8(2) of the JCC Act that it is not a function of the Commissioner to:
… challenge or call into question the legality or correctness of any construction, direction, order, judgment, or other decision given or made by a Judge in relation to any proceedings.
[15] The respondent dismissed the complaints pursuant to s 16(1)(a) of the JCC Act because the complaints were about the legality or correctness of judicial decisions and therefore were outside his jurisdiction. He recorded that the complaints challenged “the procedural legality of the 28 November 2016 minute” and could not be considered by him. He said:14
… it is for the courts, not the Judicial Conduct Commissioner, to determine how their decisions are to be recorded. The legality or correctness of such determinations falls outside my jurisdiction.
[16] The respondent also recorded that the complaint was dismissed pursuant to s 16(1)(d) of the JCC Act as being frivolous, if not vexatious. He also said that although he was bound to dismiss the complaints, the complaints in any event lacked merit and there was nothing untoward in the Court’s minute of 28 November 2016. He noted that he had explained the limits of his jurisdiction to the applicant and another complainant, Mr Siemer repeatedly and that “[k]nowing this, they persist with meritless complaints of the kind represented here, using language that is often
highly misleading and sometimes inflammatory”.15
14 Decision of the Judicial Conduct Commissioner, 1 March 2017 at [12].
15 At [18].
[17] The statement of claim as mentioned pleads two grounds of review: (1) procedural impropriety; and
(2) breach of natural justice.
[18] The statement of claim pleads it was procedurally improper for the respondent to dismiss the seven complaints together as s 19(1) of the JCC Act places a duty of confidentiality on the Commissioner, which was breached when he disseminated information about the individual complainants and their complaints.
[19] The statement of claim also pleads there was a breach of natural justice in the respondent’s failure to give reasons for dismissing the applicant’s complaints under s 16(1)(d) of the JCC Act and treating him differently to the other complainants. That, he claims, “smacks of apparent bias and was a breach of natural justice”.
[20] In analysing this application it is necessary to consider the JCC Act.
[21] The purpose of the JCC Act is defined in s 4, namely to establish a process to enable complaints about the conduct of Judges to be received and assessed while ensuring that judicial independence is preserved. In Rabson v Judicial Conduct Commissioner, Clifford J explained the Commissioner’s jurisdiction:16
Sections 8(2), 16(1)(a) and 16(1)(f) of [the JCC Act] establish a fundamental aspect of the Act's scheme for dealing with complaints of misconduct by judges. Reflecting that part of the purpose of the Act which is to provide a fair process that recognises and protects the requirements of judicial independence, s 8(2) provides:
“It is not a function of the Commissioner to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings.”
Re-enforcing that aspect of the Act's scheme, s 16(1) requires the Commissioner to dismiss a complaint if the complaint is not within the Commissioner's jurisdiction (s 16(1)(a)) or if the complaint is about a
16 Rabson v Judicial Conduct Commissioner [2017] NZHC 540 at [8]-[9].
judicial decision, or other judicial function, that is or was subject to a right of appeal or right to apply for judicial review (s 16(1)(f)).
[22] Section 11 of the JCC Act provides that the Commissioner must receive and deal with every complaint made about the conduct of a Judge. Section 11(3) specifies that the Commissioner must deal with a complaint by acknowledging and dealing with it promptly (s 14), conducting a preliminary examination under s 15 and taking any appropriate steps set out in ss 16 to 19. Section 11(4) provides:
11 Which complaints must be dealt with
...
(4) If different persons make separate complaints about the same matter, the Commissioner may deal with those complaints together ...
[23] Section 19 of the Act provides:
19 Commissioner’s duty of confidentiality
(1) The Commissioner and every person employed in the office of the
Commissioner—
(a) must keep confidential all matters that come to their knowledge in their performance of their functions; and
(b) must not communicate any of those matters to any person except for the purpose of carrying out their functions under or giving effect to this Act.
(emphasis added)
[24] Section 16(1) sets out the circumstances in which the Commissioner is required to dismiss the complaint:
16Commissioner must dismiss complaints that fail to meet required threshold
(1) The Commissioner must dismiss the complaint if the
Commissioner is of the opinion that –
(a) the complaint is not within the Commissioner’s
jurisdiction;
...
(d) the complaint is frivolous, vexatious, or not in good faith;
...
(2) If the Commissioner dismisses a complaint under this section, he or she must give the complainant and the Judge who is the subject of the complaint written notification stating –
(a) that the complaint has been dismissed; and
(b) the grounds on which that decision was made.
[25] I now analyse the statement of claim.
[26] In respect of the first ground of review in the statement of claim, s 11(4) of the JCC Act specifically provides for complaints about the same matter to be dealt with together. The disclosure made by the Commissioner was for the purpose of carrying out the Commissioner’s functions and giving effect to the JCC Act and is authorised by s 19(1)(b) of the JCC Act. Further, s 16 requires the Commissioner to notify complainants that their complaints have been dismissed.
[27] In this case there were seven people who made complaints about the Court’s minute of 28 November 2016. As contemplated by s 11(4), the Commissioner considered and dismissed the complaints together under s 16. He was required to communicate that decision to the complainants and was authorised by ss 11(4) and
19(1) of the JCC Act to do so in a single decision. This first ground of review cannot succeed. It discloses no reasonably arguable cause of action.
[28] In respect of the second ground of review in the statement of claim, s 16(2) requires the Commissioner to give written notice of the grounds in which the Commissioner has dismissed the complaint. It does not require him to give reasons, unlike a decision under s 18 to appoint a Judicial Conduct Panel.
[29] However, the Commissioner did provide reasons for dismissing the complaints as being frivolous and probably vexatious so far as the complaints made by the applicant and Mr Siemer were concerned. He explained that unlike the position of the other five complainants he had explained the limits of his jurisdiction time and time again to both the applicant and Mr Siemer. Nevertheless, they persisted with bringing meritless, misleading and inflammatory complaints. In those
circumstances he considered that the complaints made this applicant and Mr Siemer
were “at least frivolous, if not vexatious”.
[30] The decision does not therefore lack reasons, nor does it demonstrate bias or breach of natural justice. The grounds for striking out the second ground of review are therefore made out in terms of r 15(1).
[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 he would judicially review the Commissioner if his complaint was dismissed on this basis.
[34] The complaint made speculative allegations of serious misconduct, including claims the Judges “knew they were acting unlawfully” and published a “secret judgment”. His application for review completes these claims. No basis other than the minute of 28 November 2016 is provided or pleaded to support these allegations. The Commissioner explained the position in his decision, and noted in particular that there is nothing exceptional in the content or form of the minute.
[35] It is significant that the application for review does not challenge the respondent’s decision to dismiss the complaints pursuant to ss 8(2) and 16(1)(a) of the JCC Act. The Commissioner is required to dismiss applications, which challenge the legality or correctness of judicial decisions.
[36] I accept counsel’s submission:17
8.6 In these circumstances Mr Rabson’s application is frivolous,
vexatious and otherwise an abuse of process as:
(a) there is no reasonable basis for Mr Rabson’s speculative
allegations of serious misconduct;
(b) the limits of the Commissioner’s jurisdiction are well established and Mr Rabson was aware the Commissioner would decline jurisdiction and that Mr Rabson would then judicially review the Commissioner; and
(c) the dismissal of Mr Rabson’s complaint stands, even if one or more grounds of review are made out as Mr Rabson does not, and cannot, challenge the Commissioner’s dismissal of his complaints pursuant to ss 8(2) and 16(1)(a) of the JCC Act.
Result
[37] I order:
(a) That the applicant’s statement of claim be struck out; and
(b) That the respondent is not required to file a statement of defence.
Costs
[38] The respondent seeks indemnity costs. Rule 14.6(4)(a) provides that the Court may award indemnity costs if the party has acted “vexatiously, frivolously, improperly, or unnecessarily in commencing ... a proceeding”. I have already referred to the fact that this applicant on four occasions had similar proceedings struck out with indemnity costs. I consider that an award of indemnity costs is appropriate in this case. I order that indemnity costs be paid by the applicant in favour of the respondent. Counsel shall file and serve a memorandum, which provides sufficient support material for the Court to check the reasonableness of the costs claimed. If the applicant opposes the quantum of the costs claimed he must file and serve within 10 working days of receipt of the respondent’s memorandum a memorandum in response to it. Should the respondent wish to respond to that
memorandum a reply memorandum shall be filed and served within a further five
17 Submissions of Respondent, 12 May 2017.
working days. Thereafter the file should be referred to myself or another Judge for
conclusion of quantum of the indemnity costs.
J A Faire J
Solicitors:
Meredith Connell, Wellington for Respondent
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