Rabson v Judicial Conduct Commissioner - [2017] NZHC 540

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 1990

IN 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…

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 540
Decision Date: 24 March 2017

CaseChat Overview and Summary

In September 2016, Mr Rabson lodged a complaint with the Judicial Conduct Commissioner (the Commissioner) about the conduct of Cooper J. Mr Rabson alleged three acts of judicial misconduct by Cooper J in relation to a decision recorded in a minute (the Minute) issued on 28 April 2016 in proceedings in the Court of Appeal, to which Mr Rabson was not a party. The Commissioner dismissed Mr Rabson’s complaint as being outside his jurisdiction. Mr Rabson sought judicial review of that decision. The Commissioner applied to strike out Mr Rabson’s application for judicial review and for indemnity costs. The central issue was whether the Commissioner was correct to determine that he lacked jurisdiction to consider Mr Rabson’s complaints. Clifford J held that the Commissioner was correct to determine that he lacked jurisdiction to consider Mr Rabson’s complaints. The Commissioner’s determination was not irrational, did not involve procedural impropriety and was not based on irrelevant considerations. Mr Rabson’s application for judicial review was struck out and the Commissioner did not need to file a statement of defence. Indemnity costs were awarded to the Commissioner.

Orders