Rabson v Judicial Conduct Commissioner - [2020] NZCA 47

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA489/2019
[2020] NZCA 47

BETWEEN	MALCOLM EDWARD RABSON Appellant
AND	JUDICIAL CONDUCT COMMISSIONER First Respondent SUPREME COURT OF NEW ZEALAND Second Respondent

Counsel:	Appellant in person N M H Whittington for First Respondent V McCall for Second Respondent
Judgment: (On the papers)	11 March 2020 at 11 am

JUDGMENT OF COOPER J

AThe second respondent is removed as a party to the proceeding.
BThe appellant is to pay costs in the sum of $1,147.20.

____________________________________________________________________

REASONS

In a judgment delivered on 11 September 2019 Cooke J struck out an application for judicial review which Mr Rabson had made against the Judicial Conduct Commissioner.[1] The relevant history of the litigation is set out in the High Court judgment and there is no need to repeat it here.
[1]Rabson v Judicial Conduct Commissioner [2019] NZHC 2279.
The reasons the proceeding was struck out were fully explained in the judgment. The Judge held that the “first, and decisive reason” for striking out the proceeding was that Mr Rabson was seeking to relitigate a matter which had already been finally determined.[2] The second reason given was that, as the Commissioner held, there was no proper basis to join individual judges to a judicial review proceeding in the first place.[3] Furthermore, any conflict of interest in the Judges, such as that which Mr Rabson wished to assert, was 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 the Supreme Court.[4]
[2]At [19].
[3]At [21].
[4]At [22].
In filing his present appeal, Mr Rabson has purported to name the Supreme Court of New Zealand as a proposed second respondent. Counsel for that Court, by memorandum dated 1 October 2019, seeks a direction pursuant to r 5 of the Court of Appeal (Civil) Rules 2005 removing the Supreme Court as a party on the grounds that:
(a)it was not named as a party in the court below;
(b)the underlying application challenges a decision of the Judicial Conduct Commissioner, not the Supreme Court;
(c)the appeal does not seek any relief against the Supreme Court; and
(d)naming the Supreme Court is vexatious and an abuse of this Court’s process, noting that Mr Rabson is aware that naming the Supreme Court in this way is improper.[5]
[5]Citing Rabson v Young [2017] NZSC 146 at [2]; and Rabson v Judicial Conduct Commissioner [2016] NZHC 884.
In Rabson v Young, the Supreme Court referred to previous judicial review proceedings commenced by Mr Rabson in the High Court against the Judicial Conduct Commissioner and naming Judges of the Supreme Court as second respondents.[6] The Court continued:
[2] Earlier proceedings by the applicant against the Judicial Conduct Commissioner in which the applicant named judges as respondents followed the same course. As well, in a third set of proceedings of the same kind, the Supreme Court itself was…

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 47
Decision Date: 11 March 2020 at 11 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Malcolm Edward Rabson against the Judicial Conduct Commissioner. Rabson sought judicial review of a decision made by the Commissioner, which was previously struck out by Cooke J. The primary legal issue was whether the appeal should proceed on the basis of the documents already filed, and whether the Supreme Court of New Zealand should be removed as a second respondent in the appeal proceedings. The appeal was struck out on the grounds that Rabson was attempting to relitigate a matter that had already been finally determined, and there was no proper basis to join individual judges in the judicial review proceeding.

The Court of Appeal considered the arguments presented by Rabson and the Judicial Conduct Commissioner. The Supreme Court of New Zealand was removed as a second respondent, as it was not named in the court below, and the appeal did not seek any relief against the Supreme Court. Additionally, the Court found that Rabson's naming of the Supreme Court was vexatious and an abuse of the Court's process. The Court also determined that increased costs should be awarded to the Judicial Conduct Commissioner, as Rabson had directly caused the need for the application for removal. The sum of $1,147.20 was awarded as increased costs, representing a 20% uplift on the scale.

The Court ordered that the Supreme Court of New Zealand be removed as a party to the proceeding and that Rabson pay costs in the sum of $1,147.20. The Judicial Conduct Commissioner was instructed to advise the Court of his position on the present appeal within 10 working days, after which appropriate arrangements would be made for the determination of the appeal.

Orders