Reihana v Judicial Conduct Commissioner
[2024] NZHC 3185
•31 October 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-401
[2024] NZHC 3185
UNDER the Judicial Review Procedure Act 2016 BETWEEN
TONI COLIN REIHANA
Applicant
AND
JUDICIAL CONDUCT COMMISSIONER
Respondent
Hearing: 25 October 2024 Counsel:
Applicant in person
N M H Whittington for Respondent
Judgment:
31 October 2024
JUDGMENT OF RADICH J
[1] Mr Reihana made two complaints to the Office of the Judicial Conduct Commissioner based upon Associate Judge Lester’s involvement in the interlocutory stages of several judicial review proceedings.1
[2] The underlying basis for both complaints was a concern about the Associate Judge’s involvement in the proceedings, having regard to s 22(4)(h) of the Senior Courts Act 2016 which provides that no rules may be made that confer on Associate Judges jurisdiction and power in relation to an application for review or other relief under the Judicial Review Procedure Act 2016.
1 Reihana v Rakiura Titi Committee CIV-2014-425-102, CIV-2016-425-15 and CIV-2016-425-16; proceedings in which Mr Reihana was the applicant.
REIHANA v JUDICIAL CONDUCT COMMISSIONER [2024] NZHC 3185 [31 October 2024]
[3] The first complaint was made on 27 November 2023. The basis for the complaint was that the Associate Judge had failed to uphold Mr Reihana’s interlocutory application to recuse himself on the basis of s 22(4)(h) and “for harmonising with the case respondents unlawful demands/antics”. The second complaint, dated 16 January 2024, was again based upon a concern on Mr Reihana’s part that the Associate Judge did “not have conferred power and jurisdiction pursuant to s 22(4)(h) of Senior Courts Act 2016 – to deal with an Application for Review pursuant to Judicial Review Procedure Act 2016”.
[4] In a decision of 11 January 2024, the Commissioner found that he had to dismiss the first complaint under s 16(1)(a) and (f) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 because, having regard to s 8(2) of the Act, it was a matter that was outside his jurisdiction and because, in addition, the complaint was about judicial decisions that were subject to rights of appeal or rights to apply for judicial review.
[5] In a decision of 7 June 2024, he found that he had to dismiss the second complaint under s 16(1)(a) for the same reasons and because, in terms of s 16(1)(i), he had previously considered the subject matter of the complaint and no new issue of significance had been raised that he had not considered previously.
[6] Mr Reihana now applies for judicial review of the Commissioner’s decisions under the Judicial Review Procedure Act.
[7]The cause of action is expressed in the following way:
The respondent, after being warned twice how to do his job properly, has flagrantly and deliberately failed to take account of highly relevant considerations (legislation interpretability) in the making of his initial decision of 12th January 2024, and again in a further, yet the same; decision on 7th June 2024, therefore respondent [Judicial Conduct Commissioner’s] decision making is tainted with jurisdictional errors.
[8] Orders are sought setting the decisions aside, for declarations, for remuneration in preparing the case2 and damages for the mental consequences of the respondent’s decision.3 During the hearing,4 Mr Reihana took me carefully through the three affidavits he has filed and the exhibits to the affidavits. The content of those documents, and of his written and oral submissions, focus upon his claim that the Associate Judge had no jurisdiction to make any order, direction or decision in his judicial review proceedings.
[9]The difficulty with his argument is the terms of s 8(2) of the Act:
It is not a function of the Commissioner to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings.
[10] Mr Reihana’s concerns are centred upon the Associate Judge’s involvement in the proceedings referred to in [1] through various minutes issued and directions made on interlocutory issues on various occasions in 2022, 2023 and 2024.
[11]Gendall J stayed the proceedings in August 2016.5
[12] Subsequently, Mr Reihana filed various applications in the proceeding. The Associate Judge, in minutes, explained why they could not be considered in light of the stay.
[13] It is not necessary for the purposes of this proceeding to consider the minutes issued by the Associate Judge in any detail but I observe that, in a minute of 23 November 2023, the Associate Judge referred to an application from Mr Reihana to recuse himself from dealing with the proceedings and then said that he declined to do so.
2 Mr Reihana emphasises that his claim is not for costs under the High Court Rules but for “reasonable man’s remuneration” which he says can be granted under common law and equity for his time spent in preparing the case.
3 As discussed with Mr Reihana during the hearing, damages are not available in a proceeding such as this.
4 The hearing was scheduled to be heard at 10 am on 24 October 2024. Mr Reihana, on his application, was to appear by AVL as he lives in Australia. However, the AVL connection would not work for Mr Reihana and so, by consent, the hearing took place by teleconference at 2.15 pm on 25 October.
5 Reihana v Rakiura Titi Committee [2016] NZHC 2048, [2016] NZAR 1491.
[14] On 17 July 2024, Robinson J made arrangements for a case management conference in the underlying proceedings.
[15] Mr Reihana’s complaint to the Commissioner was a direct challenge to the legality of the Associate Judge’s directions, orders or decisions. It falls squarely within the terms of s 8(2) of the Act.
[16] Mr Reihana says that s 8(2) could not apply in circumstances in which the Associate Judge did not have jurisdiction to issue directions, orders or decisions. He said that the provision could only apply to a decision in which the Associate Judge addressed, directly, his jurisdiction under s 22 of the Senior Courts Act.
[17] That is not so. What the Associate Judge did was to issue minutes giving his reasons for making certain directions. Mr Reihana says that he could not lawfully do so. Accordingly, Mr Reihana is calling into question the legality of each of the things the Associate Judge has done in the proceedings. His complaint falls within the terms of s 8(2) on this basis.
[18] Accordingly, in terms of s 16(1)(a), the Commissioner was right to say that the complaint is not within his jurisdiction. And, in terms of s 16(1)(f), the Commissioner was right to say that the complaint is about a judicial decision, or other judicial function, that is or was subject to a right of appeal or right to apply for judicial review.
[19] The Commissioner was, on this basis, bound to dismiss the complaints under s 16. He did not, in terms of the cause of action advanced by Mr Reihana in this proceeding, fail to take any relevant consideration into account. Nor did he make a jurisdictional error.
[20]For these reasons, the application for judicial review is declined.
[21] I anticipate that costs are not an issue in the proceeding. Counsel for the Commissioner filed a notice of appearance reserving rights, filed a record relating to the decisions challenged and Mr Whittington appeared at the hearing of the proceeding to provide any assistance to the Court, but did not make submissions. That was an
appropriate course of action to have taken. In the event that any issue as to costs does arise, the Commissioner should file a memorandum within five working days of the date of this decision, following which further directions will be given.
Radich J
Solicitors/Counsel:
Nick Whittington Barrister, Wellington for Respondent
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