Rabson v Judicial Conduct Commissioner - [2015] NZHC 714

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11404 [2015] NZHC 714

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 Plaintiff

AND

JUDICIAL CONDUCT COMMISSIONER

First Defendant

AND

AILSA DUFFY Second Defendant

Hearing: 13 March 2015

Counsel:

L Theron for First Defendant
No Appearance for Plaintiff
No Appearance for Second Defendant (abiding outcome)

Judgment:

15 April 2015

JUDGMENT OF BROWN J

[1] The plaintiff seeks judicial review of the failure by the first defendant to notify the second defendant, in accordance with s 14(1) of the Judicial Conduct Commissioner and Judicial Panel Act 2004 (the Act), of a complaint alleging judicial misconduct by the second defendant. The first defendant applies to strike out the proceeding on the grounds that it is frivolous, vexatious or otherwise an abuse of the
Court’s process. The second defendant abides the decision of the Court.

RABSON v JUDICIAL CONDUCT COMMISSIONER [2015] NZHC 714 [15 April 2015]

[2] There was no appearance for the plaintiff at the hearing. However the plaintiff sent to the Court in advance of the hearing written submissions in opposition to the strike out application which were stated to be “In Lieu of Appearance”.

Factual background

[3] The context to the proceeding and the strike out application is an application made by Mr V R Siemer in the High Court at Auckland for leave to commence a proceeding against the first and second defendants. That application was declined by Ellis J in a judgment dated 31 October 2014 in which the substantive parts of the proposed statement of claim are recited.1

[4] It is convenient for the purposes of this judgment to juxtapose various allegations in Mr Siemer’s proposed claim with the claim now brought by the
plaintiff:

By letter dated 13 December 2013 (the

complaint), the plaintiff lodged a complaint with the first defendant

alleging     the     second     defendant

committed judicial misconduct in covering up counsel misfeasance, then issued a “reserved decision” which did not provide reasons.

By letter dated 13 December 2013 (“the

complaint”),    the    First    defendant

received    a complaint alleging the Second defendant committed judicial misconduct in covering up counsel misfeasance, then issued a “reserved decision” which did not provide reasons.

Under s 14(1) of the Judicial Conduct Commissioner   and    Judicial   Panel Act 2004 (the Act), the first defendant was legally required to send a written acknowledgement to the plaintiff AND a written notification of the complaint to the second defendant.

Under section 14(1) of the   Judicial Conduct Commissioner and Judicial Panel Act 2004 (“the Act”), the First defendant was legally required to send a written acknowledgement to the complainant AND a written notification of the complaint to the Second Defendant.

The first defendant sent an acknowledgement to the plaintiff as required by the Act.

The First Defendant…

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: [2015] NZHC 714
Decision Date: 15 April 2015

CaseChat Overview and Summary

The plaintiff, Mr. Malcolm Edward Rabson, sought judicial review of the first defendant, the Judicial Conduct Commissioner's, failure to notify the second defendant, Ailsa Duffy, of a complaint alleging judicial misconduct. The first defendant applied to strike out the proceeding on the grounds that it was frivolous, vexatious, or an abuse of the Court’s process. The second defendant did not participate in the proceedings. The central legal issue was whether the plaintiff had standing to bring the proceeding and whether the proceeding constituted an abuse of process. The court held that the plaintiff had no discernible interest in the breach and that allowing the proceeding to continue would be manifestly unfair to the defendants and bring the administration of justice into disrepute. The court found that the proceeding was a clear example of abuse of process, as the plaintiff sought to advance the same contentions that were ruled upon by another judge in relation to a proposed proceeding in terms almost identical to the plaintiff’s statement of claim. Consequently, the proceeding was struck out as an abuse of process. The first defendant was entitled to indemnity costs from the plaintiff.

Orders