Rabson v Judicial Conduct Commissioner
[2020] NZCA 247
•23 June 2020 at 1 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA489/2019 [2020] NZCA 247 |
| BETWEEN | MALCOLM EDWARD RABSON |
| AND | JUDICIAL CONDUCT COMMISSIONER |
| Court: | Cooper, Brown and Clifford JJ |
Counsel: | Appellant in person |
Judgment: | 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. They were satisfied that Mr Rabson’s conduct constituted an abuse of process, exemplified by “circularity, repetitiveness and general vexatiousness”.[9]
[8]Rabson v Young [2017] NZSC 146.
[9]At [4].
(e)This was followed by a further complaint to the Commissioner on 6 October 2017. This time Mr Rabson complained that William Young and O’Regan JJ were two of the five judges whom he had initially named as respondents and were accordingly beneficiaries of the costs award made by Faire J. This meant they should not have considered his application.
(f)The Commissioner dismissed that application on 29 June 2018. Mr Rabson then filed a further application for judicial review challenging that decision on 8 August. Those proceedings however were not accepted for filing but referred to Cooke J under r 5.35A of the High Court Rules 2016. The Judge then struck out the proceeding under r 5.35B, as an abuse of process.[10] In the course of doing so, the Judge said:
[10]Rabson v Judicial Conduct Commissioner [2018] NZHC 2053.
[8] In my view the proceedings are plainly abusive for essentially the same reasons. They are attempting to again relitigate a matter that has already been addressed by the Courts, including in a judicial review challenge to a decision of the Commissioner which was struck out as an abuse. In my view the Commissioner was plainly right to dismiss the complaint, and the judicial review challenge to his decision is also plainly an abuse of process.
(g)Mr Rabson then filed a further proceeding seeking judicial review which Cooke J struck out in the judgment which is the subject of this appeal. On this occasion, and “[u]nfortunately” as the Judge remarked, the Registrar accepted the proceedings for filing without considering the powers set out in r 5.35A(1) of the High Court Rules.[11] In response, the Commissioner filed a formal application to strike out the proceedings. The Judge observed:
[14] It is unnecessary to recount the submissions advanced by the Commissioner, and all the grounds he advances for striking out the proceeding. In my view the central consideration is that Mr Rabson is seeking to relitigate in this proceeding what has already been finally determined against him in other proceedings on more than one occasion. The relevant principle preventing Mr Rabson doing this has been described in the following terms by the Supreme Court:[12]
[28] The principle of finality in litigation gives rise to a rule of law that makes conclusive final determinations reached in the judicial process:
Unless a judgment of a Court is set aside on further appeal or otherwise set aside or amended according to law, it is conclusive as to the legal consequences it decides.
The rule reflects both the public interest in there being an end to litigation and the private interest of parties to court processes in not being subjected by their opponents to vexatious relitigation…
[11]High Court judgment, above n 1, at [12].
[12]Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 (footnotes omitted).
The Judge observed that the current proceeding was an abuse of process on the same basis as that which he had previously struck out. Mr Rabson claimed that the earlier decision was misconceived on the basis that his complaint to the Commissioner had not sought to challenge the correctness of the decision made by the Supreme Court (within the meaning of s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004), but was about the decision of judges to sit on the matter when were supposedly beneficiaries of the costs award ultimately in issue. The complaint in other words was about the Judges sitting, not the decision they reached when they sat. Cooke J evidently thought that was a distinction which might have merit, but considered that it could not prevent the present proceeding being struck out. The “first, and decisive reason” for that was that Mr Rabson was seeking to relitigate a proceeding which had already been finally determined.[13] The final outcome of the proceeding was binding on him. Further, and in any event, as the Commissioner had held, there was no proper basis to join individual judges to the judicial review proceeding.[14] Any conflict of interest in the Judges, which Mr Rabson sought to assert, was simply the inevitable consequence of him making complaints about the Judges of the Supreme Court and then seeking to have his judicial review proceeding about those complaints addressed by that Court.[15]
[13]High Court judgment, above n 1, at [19].
[14]At [21].
[15]At [22].
For completeness, we record that the present appeal initially named the Supreme Court of New Zealand as the second respondent. In a judgment of this Court delivered on 11 March 2020 the Supreme Court was removed as a party to the proceeding.[16]
[16]Rabson v Judicial Conduct Commissioner [2020] NZCA 47.
The Judge was correct to strike out Mr Rabson’s vexatious claim as an abuse of process for the reasons he gave, which we have summarised at [4] above. Those reasons need no elaboration and we endorse them. There is no need to consider the ambit of s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act, although we note the position of the Commissioner, set out in the submissions of counsel for the respondent, that s 8(2) excludes the jurisdiction of the Commissioner where the complaint made is about a decision of a judge to sit in relation to legal proceedings.
The appeal is dismissed.
The Commissioner is entitled to costs. If increased or indemnity costs are sought, a memorandum should be filed within seven working days. Any memorandum by Mr Rabson in opposition is to be filed within a further seven working days. If the Commissioner does not seek increased or indemnity costs, he is entitled to costs for a standard appeal on a band A basis.
It is clear that Mr Rabson’s conduct over a number of years now has involved the vexatious and repetitive commencement of proceedings and appeals all apparently concerning the same matter. The consequence is that this Court’s time, and that of the High Court and the Supreme Court, has been wasted time and time again.
We direct the Registrar to refer a copy of this 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.
Solicitors:
Meredith Connell, Wellington for Respondent
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