Rabson v Judicial Conduct Commissioner - [2017] NZHC 1249

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…

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: [2017] NZHC 1249
Decision Date: 8 June 2017

CaseChat Overview and Summary

In Rabson v Judicial Conduct Commissioner, the High Court of New Zealand was asked to consider an application by the Judicial Conduct Commissioner to strike out a statement of claim filed by Malcolm Edward Rabson. Rabson's claim sought judicial review of the Commissioner's decision to dismiss his complaints about certain Supreme Court Judges, alleging procedural impropriety and a breach of natural justice. The Commissioner argued that Rabson's statement of claim disclosed no reasonably arguable cause of action and was, alternatively, frivolous, vexatious, or an abuse of process.

The court examined the grounds for striking out the statement of claim under the High Court Rules and the principles applicable to such applications. The court noted that a cause of action may be struck out only if it is untenable, and a proceeding may be dismissed as an abuse of process if it is manifestly unfair or brings the administration of justice into disrepute. The court considered the content of Rabson's complaints and the Commissioner's decision, which was based on the Commissioner's lack of jurisdiction to review the legality or correctness of judicial decisions.

The court found that Rabson's first ground of review, alleging procedural impropriety, could not succeed as the Commissioner was authorised to dismiss multiple complaints about the same matter together and to notify complainants of the dismissal. Rabson's second ground of review, alleging a breach of natural justice, also failed as the Commissioner provided reasons for dismissing the complaints, contrary to Rabson's assertion. Additionally, the court held that Rabson's application was frivolous, vexatious, and an abuse of process due to his speculative allegations of misconduct, his awareness of the Commissioner's jurisdictional limits, and the inevitability of the remedy being refused.

Accordingly, the court ordered that Rabson's statement of claim be struck out and that the Commissioner was not required to file a statement of defence. The court also awarded indemnity costs to the Commissioner, considering Rabson's history of similar proceedings being struck out with indemnity costs awarded. Rabson was given an opportunity to oppose the quantum of the costs claimed if he wished to do so.

Orders