Rabson v Judicial Conduct Commissioner - [2017] NZCA 44

IN THE COURT OF APPEAL OF NEW ZEALAND

CA566/2016
[2017] NZCA 44

BETWEEN

MALCOLM EDWARD RABSON
Appellant

AND

JUDICIAL CONDUCT COMMISSIONER
First Respondent

JUSTICES ELIAS, YOUNG, GLAZEBROOK, ARNOLD AND O'REGAN
Second Respondents

Counsel:

Appellant in Person
C Cross for Respondents

Judgment:

(On the papers)

6 March 2017 at 3.00 pm

JUDGMENT OF BROWN J

AThe application for review of the Deputy Registrar’s decision declining to dispense with security for costs is dismissed.
BThe application to extend time to file the application for dispensation is declined.

____________________________________________________________________

REASONS

Introduction

On 1 November 2016 Williams J made an order striking out as second respondents the Justices of the Supreme Court. He ruled that an award of costs was appropriate.
The appellant’s appeal against that decision was accepted for filing on 8 November 2016. On the following day the standard form letter was sent to the appellant which recorded that security for costs had been fixed at $13,200 and advising that, under r 35(7) of the Court of Appeal (Civil) Rules 2005 (the Rules), any application for an order in regards to security was required to be made within 20 working days of the filing of the notice of appeal.
On 2 December 2016 Mr Rabson sent an email to the Court inquiring whether security for costs was payable. An email response the same day from the registry to the appellant confirmed that security for costs had been set at $13,200 and recorded that the appellant was required to pay that sum by Tuesday 6 December 2016 or alternatively file an application for dispensation of security for costs by that date.
On 16 December 2016 the registry received an application from the appellant to dispense with security for costs under r 35(6) of the Rules.
However, processing of the application was overlooked until an email from the appellant to the registry of 20 February 2017 inquiring as to the status of the application for dispensation.
In a decision dated 21 February 2017 the Deputy Registrar declined to consider the application for dispensation as it had been received out of time, that is subsequent to 6 December 2016, and hence the Deputy Registrar had no jurisdiction to consider the application.[1] On 23 February 2017 the appellant filed an application for a review of the decision of the Deputy Registrar under r 7(2) of the Rules. Application was also made for an extension of time for the consideration of the application for dispensation.

Analysis

[1]Orlov v National Standards Committee No 1[Security] [2014] NZCA 182, (2014) 22 PRNZ 120 at [7]; and White v Lynch [2015] NZCA 376.

The time limit for applying for dispensation under r 35(6) of the Rules is set out in r 35(7):
35 Security for costs: general
…
(7) An application under subclause (6)—
(a)must be made and served within 20 working days after the notice of appeal has been filed in the Registry; and
(b)may be made on an informal basis.
…
The Registrar does not…

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 44
Decision Date: 6 March 2017 at 3.00 pm

CaseChat Overview and Summary

In Rabson v Judicial Conduct Commissioner, the Court of Appeal of New Zealand was presented with an application by Malcolm Edward Rabson, the appellant, to review the decision of the Deputy Registrar, who had declined to dispense with the security for costs requirement. The case involved an earlier decision by Williams J to strike out the Justices of the Supreme Court as second respondents and award costs to the Judicial Conduct Commissioner. Rabson appealed this decision, and the Court of Appeal acknowledged the appeal filing but notified Rabson of the security for costs requirement. Despite receiving this notification, Rabson did not file his application for dispensation within the stipulated 20 working days, leading the Deputy Registrar to decline his application as it was out of time. Rabson then applied for a review of this decision and sought an extension of time to file his application for dispensation. The central legal issues for the Court were whether the Deputy Registrar correctly declined the application for dispensation due to its late filing, and whether an extension of time should be granted.

The Court found that the Deputy Registrar was correct in declining to consider the application as it was filed beyond the 20-working-day period stipulated by rule 35(7) of the Court of Appeal (Civil) Rules 2005. This rule mandates that any application for dispensation from security for costs must be made within this timeframe, and there is no discretion for the Registrar to extend this period. This was confirmed by previous cases such as Orlov v National Standards Committee No 1 and White v Lynch, which held that the Registrar lacks the discretion to extend the time for such applications. While the Court acknowledged that a Court of Appeal Judge has the power to extend time under rule 5(2) of the Rules, it determined that the appeal brought by Rabson was not reasonably arguable. This conclusion was based on the understanding that the Justices of the Supreme Court should not have been cited as second respondents, a point that Rabson was aware of from a prior decision in Rabson v Judicial Conduct Commissioner. Consequently, the Court found that it would not be appropriate to require the respondents to defend the judgment without the usual protection of security for costs.

In summary, the Court dismissed Rabson's application for review of the Deputy Registrar's decision and declined his application for an extension of time. The Court held that the Deputy Registrar was correct in not considering the out-of-time application for dispensation from security for costs and that there were no exceptional circumstances or public interest considerations that warranted an extension of time. Therefore, the appeal was dismissed, and the requirement for security for costs remained in place.

Orders