Rabson v Judicial Conduct Commissioner - [2017] NZCA 349

IN THE COURT OF APPEAL OF NEW ZEALAND

CA333/2017
[2017] NZCA 349

BETWEEN	MALCOLM EDWARD RABSON Appellant
AND	JUDICIAL CONDUCT COMMISSIONER First Respondent
JUSTICES WILLIAM YOUNG, ARNOLD, GLAZEBROOK, OʼREGAN AND ELLEN FRANCE Second Respondents

Counsel:

Appellant in person
A F Todd for Second Respondents

Judgment:

(On the papers)

16 August 2017 at 10.00 am

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

AThe application for review of the 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 24 August 2017.

____________________________________________________________________

REASONS

Mr Rabson has filed an appeal against a costs order made in the High Court by Faire J.[1] Security for costs on the appeal was set at $6,600. Mr Rabson applied for dispensation from payment under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005. In a decision dated 20 July 2017, the Registrar declined to grant dispensation and ordered that security of $6,600 was to be paid by 17 August 2017.
[1]Rabson v Judicial Conduct Commissioner HC Wellington CIV-2017-485-133, 8 June 2017 (Minute of Faire J).
Mr Rabson now seeks a review of the Registrar’s decision.
The first ground of review is that the Registrar was wrong when she found Mr Rabson had not provided any evidence of impecuniosity to support his application for dispensation. Mr Rabson says there was evidence because he filed a “statement of financial means” for the purposes of obtaining a waiver of the filing fees and that would have been on the file for the Registrar to see.
However, the only financial information contained in the form completed by Mr Rabson is that he is in receipt of a benefit. Far more detailed financial information, including a statement of assets and liabilities, is required in order to establish impecuniosity in the context of security for costs. No such information was provided.
The second ground of review relates to the Registrar’s finding that the appeal did not involve any element of public interest and lacked sufficient merit.
The background to the costs order made by Faire J is as follows. Mr Rabson wanted to challenge a decision of the Judicial Conduct Commissioner regarding a complaint he had made to the Commissioner against five Judges of the Supreme Court. Mr Rabson commenced judicial review proceedings in the High Court against the Commissioner as first respondent and against the five Judges as second respondent. The Judges applied for an order to remove them as respondents. They also sought an order for increased costs on the grounds that Mr Rabson was well aware from a previous court decision that the Judges should not have been cited as respondents.
Mr Rabson says he did not oppose the application for removal and abided the decision of the Court.
By minute dated 7 April 2017, Ellis J granted the application for removal and increased costs. Counsel for the Judges then filed a memorandum dated 29 May 2017. The memorandum advised that…

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 349
Decision Date: 16 August 2017 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application by Malcolm Edward Rabson to review a decision by the Registrar refusing to dispense with security for costs in an appeal against a costs order made in the High Court. Rabson had appealed a costs order made by Faire J in judicial review proceedings against the Judicial Conduct Commissioner and five Judges of the Supreme Court. The Registrar had declined to grant dispensation from paying security for costs under rule 35(6)(c) of the Court of Appeal (Civil) Rules 2005 and ordered Rabson to pay security in the sum of $6,600 by 17 August 2017.

The primary legal issues before the Court were whether the Registrar was correct to find that Rabson had not provided any evidence of impecuniosity to support his application for dispensation and whether the appeal involved any element of public interest or lacked sufficient merit. The Court noted that Rabson had filed a "statement of financial means" for the purposes of obtaining a waiver of filing fees, but that did not constitute sufficient evidence of impecuniosity for the purposes of security for costs. The Court also found that the appeal was hopeless as it did not raise any issue of public interest, lacked sufficient merit, and Rabson was essentially seeking to re-litigate issues already decided against him.

The Court of Appeal concluded that the Registrar was correct to refuse dispensation and ordered Rabson to pay security for costs in the sum of $6,600 by 24 August 2017. The Court found that the appeal was unlikely to succeed and that Rabson's arguments were weak, with the amount at stake being very small compared to the likely costs of defending the appeal. Requiring the second respondents to defend the order without the usual protection as to costs provided by security would be unjust.

Orders