Rabson v Judicial Conduct Commissioner
[2017] NZCA 382
•1 September 2017 at 10am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA334/2017 [2017] NZCA 382 |
| BETWEEN | MALCOLM EDWARD RABSON |
| AND | JUDICIAL CONDUCT COMMISSIONER |
| Counsel: | Appellant in person |
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.
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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 a Deputy Registrar’s waiver of the filing fee as conclusive evidence of his financial inability to pay security for costs. That line of argument was explicitly rejected as incorrect by the Supreme Court in Reekie v Attorney‑General.[7] A waiver of fees may be indicative of impecuniosity, but it is not conclusive.[8] An application to dispense with security for costs raises different issues to an application for waiver of a filing fee. Unlike the filing fee, security for costs protects the interests of respondents, who should not be required to respond to meritless appeals without some protection as to costs.
[7]At [42].
[8]At [42].
Where an appellant seeks dispensation of security on the grounds of impecuniosity, it is for the appellant to provide evidence that they are financially unable to pay security.[9] Mr Rabson claimed to meet “the financial test for waiver of security”. However, he has provided no financial information in support of that assertion. Registry requested such information on more than one occasion, but none was provided. In these circumstances, there is no basis upon which to conclude that Mr Rabson is financially unable to pay security for costs.
[9]At [27].
In any event, impecuniosity does not, in and of itself, justify an order dispensing with security.[10] Security should only be dispensed with in circumstances where a reasonable and solvent litigant would reasonably wish to proceed with the appeal.[11] A reasonable and solvent litigant would not wish to proceed with an appeal that is hopeless, or where the benefits to be obtained are outweighed by the costs of the appeal.[12]
[10]At [20].
[11]At [35].
[12]At [35].
Mr Rabson’s appeal has little to no merit. The primary basis for the Commissioner’s dismissal of Mr Rabson’s complaints was that Mr Rabson was inviting the Commissioner to call into question the correctness or legality of the Judge’s decision, which exceeded the Commissioner’s jurisdiction.[13] The application for review in the High Court did not challenge the Commissioner’s conclusion on jurisdiction. Therefore, even if Mr Rabson’s grounds for review were upheld, the decision would stand. Similarly, in his appeal to this Court, Mr Rabson challenges various conclusions of Faire J, but does not challenge Faire J’s conclusion that Mr Rabson’s statement of claim disclosed no reasonable cause of action. Therefore, even if Mr Rabson’s grounds of appeal were upheld, the decision of Faire J to strike out the statement of claim would stand. There is therefore no utility in the appeal or the underlying High Court proceeding. No reasonable and solvent litigant would wish to proceed with the appeal in these circumstances.
[13]Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 8(2).
Mr Rabson submits that his appeal raises an issue of serious public importance in that counsel for the Commissioner materially misled the Court by characterising Mr Rabson’s allegations of judicial misconduct as speculative and without reasonable basis. The Commissioner was entitled to defend Mr Rabson’s application for review and cannot be criticised for doing so. Therefore, it cannot be said that that the appeal raises an issue of serious public importance.
I agree with the Deputy Registrar’s conclusion that the appeal is vexatious. The vexatiousness of the appeal is demonstrated by Mr Rabson’s pursuit of proceedings from which he can derive no benefit even if successful and his extreme claims concerning persons involved in the proceedings.[14] Protecting respondents from vexatious appeals is a legitimate purpose of the security for costs regime.[15]
[14]Reekie v Attorney-General, above n 5, at [39].
[15]At [39].
For the reasons given above, it is not appropriate to require the Commissioner to defend the High Court judgment without the protection of security for costs. Accordingly, I agree with the Deputy Registrar’s decision not to dispense with security.
Result
The application for review of the Deputy Registrar’s decision refusing to dispense with security for costs is declined.
Security for costs in the sum of $6,600 must be paid into Court by 22 September 2017.
Solicitors:
Meredith Connell, Wellington for Respondent
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