Rabson v Judicial Conduct Commissioner

[2016] NZHC 884

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-238 [2016] NZHC 884

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 Panel Act

2004

BETWEEN

MALCOLM EDWARD RABSON Applicant

AND

JUDICIAL CONDUCT COMMISSIONER

First Respondent

SUPREME COURT OF NEW ZEALAND Second Respondent

Hearing:	On the papers
Counsel:	M E Rabson (in person) D L Harris for Second Respondent
Judgment:	5 May 2016

JUDGMENT OF WILIAMS J

[1]      The applicant seeks judicial review of a decision of the Judicial Conduct Commissioner who is named as the first respondent.  The second respondent is the Supreme Court.

[2]      The Crown has filed a memorandum on behalf of the second respondent seeking its removal as a party.

RABSON v JUDICIAL CONDUCT COMMISSIONER [2016] NZHC 884 [5 May 2016]

[3]      In her memorandum, Ms Harris notes that the challenge is against a decision of the Commissioner and the Supreme Court is not a necessary party because the Commissioner is the appropriate respondent to the challenge, and no relief is sought against the Supreme Court.

[4]      In a memorandum in reply, Mr Rabson accepts that no relief is sought against the Court but notes that the initial complaint, the subject of the Commissioner’s decision now challenged, was against the Judges of that Court.  They therefore, he submits, have a personal interest.   Mr Rabson advises he is prepared to amend paragraph 2 of the Statement of Claim to note that the second respondent are Judges:

… against whom the applicant lodged misconduct complaints with the first respondent in early 2016 and on this basis they have a personal interest in the subject matter and how the first respondent dealt with it.   They are named as respondents for this reason …

[5]      It is unnecessary for the Judges of the Supreme Court to be parties to this challenge against the Commissioner.  While the Judges of the Supreme Court may have an interest in the complaint itself, and a passing interest in the outcome of the challenge to the Commissioner’s decision, they are not necessary parties in terms of the analogous principles in r 4.56.  No relief is sought against them and the grounds for judicial review are based on error of law, procedural impropriety and the usual relevant/irrelevant consideration grounds.  It will be for the Commissioner to defend his decision.   The Supreme Court’s participation is neither sought nor required. Their joinder as respondents is therefore improper.

[6]      For completeness, I note that McGechan at HR4.56.17 refers to the decision of Jefferies J in Moko-Mead v Victoria University of Wellington.1     In that case, a complainant in a sexual harassment case sought to join judicial review proceedings brought by her alleged harasser against his university employer.   The proceedings sought to enjoin a formal university enquiry into the matter.  The plaintiff opposed joinder.  The order for joinder was made nonetheless.  That case is however different to the present one.  In that case, the third party against whom no relief was sought wanted to enter the dispute.  In this case, the Supreme Court does not.  That, in my

view, is an important point of distinction.

1      Moko-Mead v Victoria University of Wellington (1991) 5 PRNZ 284.

[7]      The second respondent is struck out accordingly pursuant to s 10(2)(b) and

(3) of the Judicature Amendment Act 1972.

Williams J

Solicitors:

Crown Law, Wellington

cc: M E Rabson, Cambridge