Rabson v Judicial Conduct Commissioner
[2017] NZHC 540
•24 March 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-905 [2017] NZHC 540
UNDER the Judicature Amendment Act 1972 and
s 27(2) of the New Zealand Bill of Rights
Act 1990IN THE MATTER OF
an application for judicial review under s 16 of the Judicial Conduct
Commissioner and Judicial Conduct Panel
Act 2004
BETWEEN
MALCOLM EDWARD RABSON Applicant
AND
JUDICIAL CONDUCT COMMISSIONER
First Respondent
JUSTICE MARK COOPER Second Respondent
On the papers Judgment:
24 March 2017
JUDGMENT OF CLIFFORD J
(On respondentʼs application to strike out)
Introduction
[1] In September 2016, Mr Rabson lodged a complaint with the Judicial Conduct Commissioner (the Commissioner). The alleged misconduct that formed the subject of Mr Rabson’s complaint was Cooper J’s actions as reflected in the decisions and
directions recorded in the following minute (the Minute) the Judge issued on
RABSON v JUDICIAL CONDUCT COMMISSIONER [2017] NZHC 540 [24 March 2017]
28 April 2016 in proceedings in the Court of Appeal to which Mr Rabson was not a party:1
[1] The appellant’s application for review of the Registrar’s decision not
to accept legal submissions for filing is without merit and it is dismissed.
[2] I direct the Registrar to refer the following documents to the
Solicitor-General for her consideration:
(a) the appellant’s memorandum as to legitimacy of the Court of
Appeal dated 18 April 2016;
(b) the appellant’s submission for the hearing on 5 May;
(c) the appellant’s application for review of the Deputy
Registrar’s decision;
(d) a copy of the Minute of the Court dated 27 October 2015; (e) a copy of the Minute of the Court dated 29 October 2015.
[3] Once they have been copied for the purposes of reference to the Solicitor-General, the documents referred to at [2](a)-(c) are to be returned to the appellant.
[2] Mr Rabson became aware of the Minute after it was posted on the website “Kiwisfirst.co.nz”. In his complaint Mr Rabson said that, reading the Minute, he was struck by the unlawfulness of Cooper J ordering hearing submissions be expunged from the Court of Appeal file. Mr Rabson identified three acts of alleged judicial misconduct. He complained that Cooper J:
(a) Perverted the course of justice, by ordering written submissions for a scheduled appeal hearing by a full court removed from the Court file prior to consideration.
(b)Improperly altered the Court record, through the removal of a relevant appeal document, in a general breach of law and the Public Records Act 2005.
(c) Committed a rule of law breach, by refusing to give reasons.
1 NR v MR CA443/2014 and CA522/2014 minute of Cooper J, 28 April 2016.
[3] In a written decision of 25 October 2016 (the Jurisdiction Decision), the Commissioner determined that he was without jurisdiction to consider those complaints.
[4] In these judicial review proceedings, Mr Rabson challenges the Jurisdiction Decision as being irrational and wrong in law, involving procedural impropriety and having been made in reliance on irrelevant considerations whilst failing to take account of relevant considerations. By way of relief, Mr Rabson asks this Court to order the Commissioner to investigate his complaints.
[5] The Commissioner has applied for orders striking out Mr Rabson’s application for judicial review and that the Commissioner need not file a statement of defence. The Commissioner also seeks indemnity costs against Mr Rabson.
[6] In a joint memorandum, of Mr Rabson and of counsel for the Commissioner, the parties agreed that the Commissioner’s applications could be considered on the papers.
[7] Mr Rabson named Cooper J as second respondent because, as he explained in his statement of claim, “Although no relief is sought against him he is named on grounds he has a lawful interest”. The subject of Mr Rabson’s judicial review application is the decision of the Commissioner. Cooper J has no part to play in these proceedings, and has not done so.
The Jurisdiction Decision
[8] Sections 8(2), 16(1)(a) and 16(1)(f) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the 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.
[9] 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 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)).
[10] In the Jurisdiction Decision the Commissioner considered the nature of Cooper J’s decisions recorded in the Minute. The Commissioner concluded that each of those decisions was given or made by the Judge in relation to legal proceedings and, in respect of which, rights of appeal applied or judicial review was available to the parties affected by those decisions. In reaching those conclusions, the Commissioner noted relevant legal aspects of the powers of the Court, including those that may be exercised by the Registrar.
[11] The Commissioner also expressed views on Mr Rabson’s complaint that judicial misconduct had occurred because the minute did not contain reasons. As relevant, he observed:
11. Justice Cooper has exercised the jurisdiction2 and determined that NR’s application for review of the Registrar’s decision “is without merit”. The reasoning is unsurprisingly brief given the nature of the decision. An applicant dissatisfied with the review of the decision can seek leave to appeal against that decision to the Supreme Court.
…
21.Finally on the question of reasons, it is desirable that Courts provide reasons for decisions but I do not believe the rule is invariable. In the instance of the direction to the Solicitor-General, the reasons seem apparent from the history of the proceedings involving NR and MR.
The MR and NR proceedings
[12] As noted, the Minute was issued by Cooper J in proceedings involving MR and NR, to which Mr Rabson was not a party. That Mr Rabson was not a party to those proceedings is no impediment to him making a complaint of judicial
misconduct in the course of those proceedings. The Act is clear: any person may
2 “The jurisdiction” is a reference to the inherent jurisdiction of the Judges of the Court of Appeal to review decisions of a Registrar, as recognised by the Supreme Court in Cresser v Cresser [2015] NZSC 194.
complain about judicial misconduct. By the same token, however, those proceedings, as the Commissioner recorded, are the context of the Minute. It is necessary, therefore, to record that context.
[13] MR was formerly a sex worker. NR was a client. MR became concerned about NR’s level of interest in her and terminated the relationship. NR thereafter pursued a course of conduct that led MR successfully to seek a restraining order in the District Court under the Harassment Act 1997 (the Act).3 NR appealed the order, which was confirmed by the High Court, but its length was reduced to one year, which effectively meant it expired immediately.4 Both parties, with leave, appealed the High Court decision.5
[14] There were also a number of ancillary appeals, which arose in the context of civil proceedings brought by NR in response to MR’s application for a restraining order.
[15] The Court of Appeal gave judgment on all matters in two decisions released on 12 September 2016.6 In its decision [2016] NZCA 429 the Court observed:
[3] Five appeals involving R were scheduled for hearing. R has filed various documents in relation to these matters, some of which have been rejected because their content was assessed as scandalous. R does not accept the integrity of this Court or its members, having made various allegations against all the permanent members.
[4] R did not appear for the hearing of the appeals. We have made inquiries and are satisfied the appropriate notices have been given. On or about 26 April 2016 R filed a document entitled “Appellant’s submissions for the hearing on 5 May 2016” so it is apparent he was aware of the fixture. We resolved at the hearing to proceed to determine the appeals without having the benefit of R’s input.
(Citation omitted.)
[16] Three minutes issued by the Court record occasions on which documents had been rejected because their content was assessed as scandalous. Cooper J referred
3 MLR v NR DC Auckland CIV-2012-004-1034, 9 May 2013 at [25].
4 NR v District Court at Auckland [2014] NZHC 1767 at [128].
5 NR v District Court at Auckland [2015] NZCA 426 at [39]–[40].
6 NR v District Court at Auckland [2016] NZCA 429; and NR v MR [2016] NZCA 430.
two of those minutes to the Solicitor-General. There had, in fact, been an earlier minute of Wild J in similar terms. The details of those minutes follows:
(a) On 24 September 2015, Wild J issued a minute in CA413/2015 which read:
[1] The application for review of the Registrar’s refusal to dispense with security filed by the appellant on 15 September has been referred to me.
[2] The application is contemptuous in that it makes scandalous allegations against seven Judges of this Court, against a Judge of the High Court, and asserts “profound judicial corruption … is widespread”.
[3] The Court declines to deal with the application. The
Registrar is directed to return it to the appellant.
[4] The Court will consider a properly grounded application.
[5] The Notice of Appeal the appellant filed on 28 July and his application for dispensation of security filed on 24 August also contain scandalous allegations against a High Court Judge. Had the Judges of this Court known of these two documents at the time they were filed, a similar direction would have been given.
[6] The process of this Court remains open to the appellant for proper purposes, but the Court will not tolerate abuse of its process. Any document the Registrar considers may be an abuse of process is to be referred to a Judge.
(b)On 27 October 2015, Ellen France P issued the following minute in the proceedings CA460/2014, CA261/2016 and CA522/2014:
[1] The application for recall of the Court’s judgment of
10 September 2015 was referred to us on 22 October 2015.
[2] The application is contemptuous in the scandalous allegations it makes against Judges of this court.
[3] The Court declines to deal with the application which, in any event, is against a judgment in which the appellant was substantially successful. The Registrar is directed to return the application to the appellant.
[4] This is the second occasion on which the Court has had to direct the return of scandalous material from the appellant. We think it appropriate to put the appellant on notice that future contempt is likely to be the subject of a firmer response. (Citations omitted.)
(c) France P’s minute of 27 October 2015 was followed two days later by this further minute:
[1] On 27 October the appellant filed a memorandum, dated 23
October, headed ‘Appellant’s Memorandum as to Wild J’s Failure to
Disclose Conflict of Interest’.
[2] The “failure to disclose conflict of interest” asserted appears to be that Wild J has not disclosed he is the son of the former Chief Justice, Sir Richard Wild.
[3] The appellant’s memorandum is contemptuous in that it makes a scandalous imputation against Wild J and against a Judge of the High Court and alleges other (unidentified) Judges are or may be dishonest.
[4] The Court declines to deal with the application. The
Registrar is directed to return it to the appellant.
[5] This is the third time this Court has had to reject a contemptuous document filed by the appellant. One of those earlier contemptuous documents, the appellant’s 15 September application for review, was attached to the appellant’s 23 October memorandum. This compounds the contempt. As will now be clear to the appellant, this type of abuse of this Court’s process is unacceptable.
[6] As the Court stated in its minute of 27 October, any further contempt will likely meet a firmer response.
[17] NR’s appeals were to be heard on 4 May 2016. On 20 April 2016 NR filed a further memorandum. The Registrar advised NR that day by email in the following terms:
We are in receipt of your memorandum as to legitimacy of the Court of
Appeal.
Upon reading it, it is clear that this document is contemptuous, scandalous and all together inappropriate. As such, the document is no[t] accepted for filing. This is done on reliance of the Minutes of the Court dated 27 and
29 October 2015 issued in relation to these appeals.
[18] On 26 April 2016 NR applied for a review of the Registrar’s decision by a
judge. In doing so he commented:
The jurisdiction of the Court of Appeal to conduct such a review is well established and does not require further submissions, subject to paragraph 2 below.
[19] Cooper J undertook that review, and, as noted, the Minute was issued on
28 April 2016.
The Commissioner’s strike out application
[20] Mr Rabson claims the Jurisdiction Decision was irrational because the Commissioner’s observation that it was “not an invariable rule” that reasons were to be given for judicial decisions was in conflict with established law. Moreover, it was basic law that a single Judge did not have jurisdiction to remove submissions specific to a hearing set down before a full appellate bench. Only that bench had that power. The jurisdiction was based on an error in law, was procedurally improper and was based on irrelevant considerations because the Commissioner had failed to consider the Judge’s conduct by erroneously concluding the complaint related to the decision recorded in the Minute. The Commissioner had similarly failed to take into account relevant considerations, namely the merits of Mr Rabson’s complaint as to the Judge’s actions that preceded the Minute.
[21] The Commissioner’s strike out application is based on the proposition that the Commissioner was manifestly correct when he concluded that Mr Rabson’s complaint was outside his jurisdiction. The correctness of Cooper J’s decision to dismiss the application for review, to refer the materials to the Solicitor-General and the adequacy of his reasons for those decisions, were matters of legality or correctness. Accordingly, Mr Rabson’s application for judicial review has no prospect of success, discloses no reasonable cause of action and is frivolous, vexatious or otherwise an abuse of process of the Court.
[22] In his opposition to that application, Mr Rabson effectively repeats the substance of his claim for judicial review. That is, all the Commissioner had done in his strike out application was to repeat the (erroneous) grounds on which he had declined jurisdiction.
Analysis and outcome
[23] I remind myself of the basic principles upon which a strike out application is to be determined. Those principles have been recorded on a number of occasions in
applications similar to this. I refer to the October 2016 judgment of Cull J,7 to the December 2016 decision of Dobson J,8 and to a July 2013 decision of Kós J.9 As Kós J summarised matters:10
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.
[24] In my view, Mr Rabson’s challenge to the Jurisdiction Decision is, as the
Commissioner has argued, untenable.
[25] As the Supreme Court confirmed in Cresser, the Judges of the Court of Appeal have an inherent jurisdiction to review decisions of a Registrar, including one where a Registrar refuses to accept a document for filing.11 NR invoked that jurisdiction, and the Minute records Cooper J’s decision. Likewise, Cooper J’s direction that various papers be referred to the Solicitor-General was an exercise of the Court’s inherent jurisdiction regarding contemptuous, including scandalous,
statements.
[26] The decision to uphold the Registrar’s rejection of documents, and to refer various documents to the Solicitor-General, are judicial decisions that NR could have appealed or sought to review. In terms of s 8(2) of the Act, consideration of Mr Rabson’s complaint would have involved the Commissioner challenging or calling into question the legality or correctness of the decisions and directions of Cooper J recorded in the Minute.
[27] The Court of Appeal reached similar conclusions when it considered and dismissed NR’s application for recall of its judgments in NR v District Court in Auckland12 and NR v MR.13 The application was made on the basis that NR was not
heard in respect of the appeals because his submissions were wrongly removed from
7 Rabson v Judicial Conduct Commissioner [2016] NZHC 2539.
8 Rabson v Judicial Conduct Commissioner [2016] NZHC 3162.
9 Siemer v Judicial Conduct Commissioner [2016] NZHC 1853.
10 At [13].
11 Cresser v Cresser, above n 2.
12 NR v District Court at Auckland, above n 6.
13 NR v MR, above n 6.
the file prior to the hearing and he could not attend the hearing because of fears for his personal safety.
[28] In rejecting NR’s application for recall, the Court of Appeal stated:14
[4] Neither ground [NR also complained of bias] provides a basis for recall. The Court was aware that it did not hear from NR because of his failure to attend at the hearing. It was also aware that NR had filed the document which he claimed to be his submissions on the appeal. The Court was also aware the document had not been accepted for filing because of the scandalous nature of the material contained in the document. The Court decided to proceed with the hearing of the appeals without having heard from NR, it being satisfied he had been given a proper opportunity to be heard. If any issues arise in respect of the decision to proceed in such circumstances, they are issues for appeal.
[29] In my view, that reasoning recorded in the Minute applies with equal force as regards the decisions, and demonstrates that Mr Rabson’s complaints are outside the Commissioner’s jurisdiction.
[30] Mr Rabson also challenged the correctness of the Commissioner’s reference (see [11] above) as regards the extent, or otherwise, of the reasons recorded by Cooper J for his decisions in the Minute. All judicial decisions must be made judicially. In the context of the wide discretion Courts have as regards the making of costs orders, Dal Pont explains:15
Beyond any specific statutory or rule-based limitation on the discretion, that it vests in a judicial officer carries a restriction on its exercise, namely that it must be exercised judicially. To exercise a discretion judicially is inconsistent with its exercise in an arbitrary or capricious sense, and translates into a positive obligation to exercise it on “fixed principles”, “according to rules of reason and justice, not according to private opinion … benevolence … or sympathy”.
[31] As Dal Pont goes on to comment, a discretion exercised on grounds unconnected with the matters before the Judge, or on no grounds at all, far from
constituting a judicial exercise of that discretion, is arbitrary or capricious.
14 NR v District Court at Auckland [2016] NZHC 505 (citations omitted).
15 GE Dal Pont Law of Costs (3rd ed, LexisNexis Butterworths, Chatsworth, Australia, 2013) at
[6.15].
[32] However, the extent to which reasons must be recorded can vary with context. The Court of Appeal in R v Awatere concluded there is no general rule that reasons must accompany decisions, but that judges should nonetheless:16
… do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Indeed failure to follow that normal judicial practice might well jeopardise the decision on appeal. It could do so because a potential appellant might seem to be unduly prejudiced or it could do so by leaving it open for the appellate Court to infer that there are in fact no adequate reasons to support it …
[33] A challenge to the adequacy of reasons was accepted in the later case of Lewis v Wilson & Horton Ltd.17 The Court of Appeal confirmed that no rule of general application existed requiring reasons to be given, but where the decision is rendered without sufficient reasons to enable the decision to be understood and to be scrutinised by the public and appellate courts, it will be vulnerable to a finding that the decision erred in law.18
[34] It is clear, therefore, that the adequacy or otherwise of reasons is a matter which is to be reviewed by way of appeal or other challenge to the decision itself.
[35] Mr Rabson’s application for judicial review is, therefore, struck out. The
Commissioner accordingly need not file a statement of defence.
[36] In the circumstances, an award of indemnity costs is appropriate. Based on the history of his interactions with the Commissioner, Mr Rabson – as he himself recorded in his complaint on this occasion – was well aware that the Commissioner would likely decline jurisdiction; that he, Mr Rabson, would then apply for judicial review of that decision; that application would be met by an application by the Commissioner for strike out and for indemnity costs; and that both of the Commissioner’s applications would be highly likely to succeed.
“Clifford J”
16 R v Awatere [1982] 1 NZLR 644 (CA) at 649.
17 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA).
18 At [75]–[85].
Solicitors:
Meredith Connell for Respondents
Copy to: Mr Rabson
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