Rabson v Judicial Conduct Commissioner - [2016] NZHC 3162

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-781 [2016] NZHC 3162

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

THE JUDICIAL CONDUCT COMMISSIONER Respondent

On papers

Judgment:

20 December 2016

JUDGMENT OF DOBSON J

[On respondentʼs application to strike out]

[1] In August 2016, Mr Rabson lodged a complaint with the respondent (the JCC). Mr Rabson’s allegation was that the Judges of the Supreme Court had conspired with one another to convene secretly and off the record with the purpose and effect of exempting themselves from laws passed by the New Zealand legislature which bind judges, and in so doing, violate their own oaths of office to maintain the rule of law.

[2] The cause of the complaint was the manner in which the Supreme Court

Judges had considered the issues reflected in the Court’s decision in Greer v Smith.1

That judgment dealt with an application brought by Mr Vince Siemer to review a

1 Greer v Smith [2015] NZSC 196.

decision of one of the Supreme Court Judges, O’Regan J, to refuse an application for access to court documents. O’Regan J had dealt with that application by way of a minute on 20 October 2015. The Supreme Court dealt with Mr Siemer’s application for discharge or variation of O’Regan J’s decision, without convening a hearing. Its judgment concluded that the Court did not have jurisdiction to review the minute of O’Regan J. The Court found that O’Regan J’s approach was in accordance with the practice which the Court had adopted, and the Court saw no occasion to review it.

[3] The JCC considered Mr Rabson’s complaint and characterised it as one challenging or calling into question the legality or correctness of a judicial decision. On that basis, the JCC considered it did not have jurisdiction to consider the complaint because it was caught by s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the Act). That section precludes the JCC assessing questions that go to the legality or correctness of a judicial decision. The JCC advised Mr Rabson of that decision on 26 September 2016. The JCC’s response noted that it was the second complaint Mr Rabson had lodged concerning the Supreme Court’s judgment in Greer v Smith, with that first complaint also having been dismissed because it came within s 8(2) of the Act.

[4] On 30 September 2016, Mr Rabson commenced the present proceedings

seeking judicial review of the JCC’s decision not to consider the merits of his August

2016 complaint. Mr Rabson alleges that the JCC committed errors of law in not considering the merits of his complaint and in concluding that the issues he had identified related to judicial decision-making rather than matters of conduct by judicial…

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: [2016] NZHC 3162
Decision Date: 20 December 2016

CaseChat Overview and Summary

In Rabson v Judicial Conduct Commissioner, the High Court of New Zealand was asked to consider Mr Rabson’s application for judicial review of the JCC’s decision not to consider the merits of his complaint. Mr Rabson alleged that the Supreme Court judges had conspired to convene secretly to exempt themselves from laws passed by the New Zealand legislature, and that this was a violation of their oaths of office to maintain the rule of law. The JCC considered Mr Rabson’s complaint and determined that it did not have jurisdiction to consider the complaint because it was caught by s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. This section precludes the JCC from assessing questions that go to the legality or correctness of a judicial decision.

The legal issues the court was required to decide were whether the claim for judicial review disclosed a reasonable cause of action, and whether it was an abuse of the Court’s process. The court found that the claim for judicial review did not disclose any reasonable cause of action as it was untenable and could not succeed. The court also found that the claim was an abuse of process as Mr Rabson’s persistent attempts to challenge the JCC’s decisions amounted to a collateral attack on judgments of the Supreme Court. The court therefore granted the JCC’s application for orders striking out Mr Rabson’s judicial review and for an order that he not be required to file a statement of defence pending determination of the strike out application. The court also ordered Mr Rabson to pay the JCC’s costs on an indemnity basis.

Orders