Rabson v Judicial Conduct Commissioner - [2020] NZCA 247

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA489/2019
[2020] NZCA 247

BETWEEN	MALCOLM EDWARD RABSON Appellant
AND	JUDICIAL CONDUCT COMMISSIONER Respondent

Court:	Cooper, Brown and Clifford JJ
Counsel:	Appellant in person N M H Whittington and K S Rouch for Respondent
Judgment: (On the papers)	23 June 2020 at 1 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe respondent is entitled to costs in accordance with [8] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

This is an appeal against a judgment delivered on 11 September 2019 by Cooke J, in which he struck out an application for judicial review which Mr Rabson had made against the Judicial Conduct Commissioner.[1]
[1]Rabson v Judicial Conduct Commissioner [2019] NZHC 2279 (High Court judgment).
The Judge recited, as background, an extensive history of litigation in which Mr Rabson had complained about judges and decisions of the Judicial Conduct Commissioner on his complaints. He recorded that since 2011, Mr Rabson had made at least 46 applications to the Supreme Court, 28 applications to the Court of Appeal and 17 applications to the High Court.[2]
[2]At [3].
The Judge gave what he described as the “immediate background” to the Commissioner’s strike-out application by referring to the following:[3]
[3]At [3] and [4]–[12].
(a)A complaint lodged with the Commissioner on 1 December 2016, alleging Ellen France J had a conflict of interest when dismissing a review of a decision of the Supreme Court Registrar declining to waive the payment of filing fees.[4] Mr Rabson asserted the Judge had acted in her own cause, given that her own decision was ultimately at issue in the proceedings.
[4]Rabson v Shephard [2016] NZSC 152.
(b)After that complaint was dismissed by the Commissioner, Mr Rabson commenced judicial review proceedings against the Commissioner on 7 March 2017. He named as second respondents five Supreme Court Judges. The Judges were removed as respondents by Ellis J and Faire J subsequently ordered Mr Rabson to pay costs in the sum of $777.50 on their removal.[5] This proceeding was subsequently struck out by Faire J as an abuse of process.[6]
[5]Rabson v Judicial Conduct Commissioner HC Wellington CIV-2017-485-133, 8 June 2017 (minute of Faire J).
[6]Rabson v Judicial Conduct Commissioner [2017] NZHC 1249.
(c)Then, Mr Rabson sought to appeal the costs decision to the Court of Appeal. He applied for dispensation of security for costs on his appeal, but the Registrar declined his application. Mr Rabson sought a review of that decision, but the decision was upheld by French J.[7]
[7]Rabson v Judicial Conduct Commissioner [2017] NZCA 349.
(d)Mr Rabson applied to the Supreme Court for leave to appeal French J’s decision. On 28 September 2017, the application for leave to appeal was dismissed as an abuse of process.[8] The Judges noted the impropriety of Mr Rabson naming judges in judicial review proceedings and noted that Mr Rabson knew his conduct was improper.…

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: [2020] NZCA 247
Decision Date: 23 June 2020 at 1 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Malcolm Edward Rabson against a decision of Cooke J, who had struck out an application for judicial review against the Judicial Conduct Commissioner. Rabson had a history of vexatious litigation, including numerous applications to various courts. The Court was required to decide whether Cooke J was correct in striking out the application for judicial review on the grounds that it was an abuse of process. The Court found that Cooke J was correct in his decision and dismissed the appeal. The Court held that Rabson was seeking to relitigate a matter that had already been finally determined against him in other proceedings. The principle of finality in litigation prevented Rabson from doing so. The Court endorsed the reasons given by Cooke J and found no need to consider the ambit of s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act. The Commissioner was entitled to costs, and the Court directed the Registrar to refer a copy of the judgment to the Solicitor-General for further consideration.

The Court of Appeal dismissed the appeal and found that the Judge was correct in striking out Rabson’s application for judicial review as an abuse of process. Rabson’s conduct over a number of years had involved the vexatious and repetitive commencement of proceedings and appeals, all apparently concerning the same matter. The consequence was that the Court’s time, and that of the High Court and the Supreme Court, had been wasted time and time again. The Court directed the Registrar to refer a copy of the judgment to the Solicitor-General for the consideration of such further steps as she might consider appropriate having regard to s 166 of the Senior Courts Act 2016.

Orders