Rabson v Judicial Conduct Commissioner - [2019] NZHC 2279

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-919

[2019] NZHC 2279

UNDER
the Judicial Review Procedure Act 2016, s 27(2) of the New Zealand Bill of Rights

Act 1990 and the Declaratory Judgments Act 1908

IN THE MATTER

of a judicial review and declaratory relief

BETWEEN

MALCOLM RABSON

Applicant

AND

JUDICIAL CONDUCT COMMISSIONER

Respondent

Hearing: On the papers

Appearances:

M E Rabson in person

N Whittington, M Hori Te Pa for Respondent

Judgment:

11 September 2019

JUDGMENT OF COOKE J

[1] By application dated 28 January 2019 the respondent, the Judicial Conduct Commissioner (the Commissioner), applies to strike out the claim for judicial review dated 29 November 2018 brought by the applicant, Mr Rabson.

[2] When the proceedings were first called on 4 February 2019, the parties agreed that this application could be dealt with on the papers. Directions were given for the filing of submissions. A hearing date on 6 September 2019 was nevertheless offered to Mr Rabson. He indicated he did not want there to be a hearing unless there was prior agreement by the Court that a transcript of the hearing would be prepared, and if not, he was content for the matter to be determined on the papers. I indicated in my

RABSON v JUDICIAL CONDUCT COMMISSIONER [2019] NZHC 2279 [11 September 2019]

minute of 4 September 2019 that I would not direct that a transcript be prepared, and that I would proceed to deal with the application on the papers accordingly.

Background

[3] These proceedings are a further iteration of Mr Rabson’s complaints about the judiciary and the Commissioner. It would be very difficult to record all of the proceedings and applications Mr Rabson has commenced in that connection, even in summary form. The submissions for the Commissioner advise that since 2011 Mr Rabson has made at least 46 applications to the Supreme Court, 28 applications to the Court of Appeal, and 17 applications to the High Court.1 I will nevertheless try to summarise the more immediate background.

[4] On 1 December 2016 Mr Rabson lodged a complaint with the Commissioner. He alleged that Ellen France J had a conflict of interest when dismissing a review of a decision of the Supreme Court Registrar declining to waive the payment of filing fees.2 Mr Rabson said Ellen France J had acted in her own cause given that her own decision was ultimately in issue in the proceedings. He also alleged that the other Supreme Court Justices were “complicit” in the violation of a fundamental doctrine that no Judge can act in their own cause.3

[5] By decision dated 1 March 2017 the Commissioner dismissed the complaint pursuant to s 16(1)(a) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the JCC Act). The Commissioner found the complaint was about the correctness of a judicial decision. Section 8(2) of the JCC Act provides that it is not the function of the Commissioner to challenge…

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: [2019] NZHC 2279
Decision Date: 11 September 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Malcolm Rabson has filed a judicial review application against the Judicial Conduct Commissioner, seeking to challenge the Commissioner's decision to dismiss his complaint about Supreme Court judges. The Commissioner has applied to strike out Mr. Rabson's claim for judicial review on the basis that it constitutes an abuse of process. The court must decide whether the application should be struck out and if so, whether costs should be awarded.

The primary legal issue before the court is whether Mr. Rabson's judicial review application is an abuse of process, given that he has made numerous similar complaints in the past, all of which have been dismissed. The court considers the principle of finality in litigation, which prevents parties from continuously relitigating the same matter. The court also examines whether Mr. Rabson's complaint falls within the Commissioner's jurisdiction and if it is an abuse of the judicial conduct complaint process.

The court held that Mr. Rabson's judicial review application is an abuse of process, as it seeks to relitigate matters that have already been finally determined against him in other proceedings. The court agreed with the Commissioner that Mr. Rabson's complaints are misconceived, vexatious, and fall outside the Commissioner's jurisdiction. The court also dismissed Mr. Rabson's application to add the Supreme Court as a party to the proceedings. Finally, the court awarded indemnity costs to the Commissioner, given that Mr. Rabson's repeated complaints remain an abuse of process.

The court strikes out Mr. Rabson's judicial review application as an abuse of process and awards costs to the Commissioner.

Orders