Rabson v Judicial Conduct Commissioner - [2017] NZCA 382

IN THE COURT OF APPEAL OF NEW ZEALAND

CA334/2017
[2017] NZCA 382

BETWEEN	MALCOLM EDWARD RABSON Appellant
AND	JUDICIAL CONDUCT COMMISSIONER Respondent

Counsel:

Appellant in person
L Theron and C P A Cross for Respondent

Judgment:

(On the papers)

1 September 2017 at 10am

JUDGMENT OF ASHER J
(Review of Registrar’s decision)

AThe application for review of the Deputy Registrar’s decision refusing to dispense with security for costs is declined.
BSecurity for costs in the sum of $6,600 must be paid into Court by 22 September 2017.

____________________________________________________________________

REASONS

Mr Rabson seeks a review of the Deputy Registrar’s decision declining to dispense with security for costs on Mr Rabson’s appeal.

Background

Mr Rabson appeals against a decision of Faire J in the High Court striking out Mr Rabson’s application for judicial review.[1] Mr Rabson sought judicial review of a decision by the respondent, the Judicial Conduct Commissioner (the Commissioner), dismissing Mr Rabson’s complaints of misconduct by a judge of the Supreme Court. Faire J found that Mr Rabson’s statement of claim disclosed no reasonably arguable cause of action.[2] The Judge also found that the application was frivolous, vexatious and otherwise an abuse of process.[3]
[1]Rabson v Judicial Conduct Commissioner [2017] NZHC 1249.
[2]At [36].
[3]At [36].
On 22 June 2017 Mr Rabson applied for waiver of the fee of $1,100 associated with the filing of his appeal on the ground that he is impecunious. The fee was waived on 12 July 2017.
Security for costs on the appeal was fixed at $6600. On 22 June 2017 Mr Rabson also applied to dispense with security for costs on the basis that he “meets the financial test for waiver of security”. The Deputy Registrar declined the application on 26 July 2017 on the basis that Mr Rabson had provided no evidence of impecuniosity, despite being reminded by Registry on numerous occasions of the need to do so. The Deputy Registrar also observed that the grounds of appeal lacked merit, there was no apparent benefit in the appeal or the underlying High Court proceedings, and the appeal raised no issues of public interest.
Mr Rabson now applies for review of the Deputy Registrar’s decision under r 7(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) on the grounds that:
(a)the decision contradicts the earlier decision to dispense with the filing fee, which indicated acceptance of Mr Rabson’s claims of impecuniosity; and
(b)the decision failed to consider “the self-evident bona fides of the appeal”.

Analysis

The default position is that security for costs should be provided in relation to an appeal to this Court.[4] Departure from that principle is exceptional.[5] Security for costs should only be dispensed with if it is right to require the respondent to defend the judgment under challenge without the protection as to costs that the security provides.[6]
[4]Court of Appeal (Civil) Rules 2005, r 35(2).
[5]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [28].
[6]At [31].
Mr Rabson relies on…

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: [2017] NZCA 382
Decision Date: 1 September 2017 at 10am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Malcolm Edward Rabson to review the decision of the Deputy Registrar to refuse to dispense with security for costs in relation to his appeal. Rabson had previously appealed against a decision of Faire J in the High Court, who had struck out his application for judicial review of a decision by the Judicial Conduct Commissioner dismissing Rabson’s complaints of misconduct by a judge of the Supreme Court. Rabson sought a waiver of the security for costs on appeal, claiming he met the financial test for waiver of security. The Deputy Registrar declined the application, observing that Rabson had provided no evidence of impecuniosity and that the grounds of appeal lacked merit, had no apparent benefit, and did not raise issues of public interest. Rabson sought to review the Deputy Registrar’s decision, arguing that the decision contradicted the earlier decision to dispense with the filing fee and that the Deputy Registrar failed to consider the self-evident bona fides of the appeal.

The Court considered whether security for costs should be dispensed with, which is exceptional, and only appropriate if it is right to require the respondent to defend the judgment under challenge without the protection of security. Rabson argued that the Deputy Registrar’s waiver of the filing fee was conclusive evidence of his financial inability to pay security for costs. However, the Court rejected this argument, stating that a waiver of fees may be indicative of impecuniosity, but it is not conclusive. Rabson had provided no financial information to support his claim of impecuniosity. The Court also considered whether the appeal had little to no merit, was vexatious, or raised issues of public importance. Rabson's appeal had little to no merit, and was vexatious as it provided no benefit even if successful, and raised extreme claims concerning persons involved in the proceedings. Therefore, it was not appropriate to require the Commissioner to defend the High Court judgment without the protection of security for costs.

The Court declined the application for review of the Deputy Registrar’s decision refusing to dispense with security for costs. Rabson must pay security for costs in the sum of $6,600 into Court by 22 September 2017.

Orders