Bradbury and Another v Judicial Conduct Commissioner

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeEllen France,Stevens,Wild JJ
Judgment Date08 September 2014
Neutral Citation[2014] NZCA 441
Docket NumberCA357/2013
Date08 September 2014

[2014] NZCA 441

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France, Stevens and Wild JJ

CA357/2013

BETWEEN
Clive Richard Bradbury And Gregory Alan Peebles
Appellants
and
Judicial Conduct Commissioner
First Respondent
Garry Albert Muir
Second Respondent
Counsel:

G J Judd QC for Appellants

D J Goddard QC and L Theron for First Respondent

L J Taylor QC for Justice Venning

Appeal from a High Court (“HC”) decision which dismissed the appellants' application for judicial review (on the grounds of abuse of process) of a decision of the first respondent Judicial Conduct Commissioner — Commissioner declined to take further action on the appellant's complaint against a HC Judge — the appellants had been involved in a forestry investment scheme known as the Trinity scheme — in 2004 the Judge found that the Trinity scheme comprised tax avoidance — appellants complained that the Judge had made inadequate disclosure in the context of the Trinity litigation about the circumstances surrounding the establishment in 1992 of a forestry investment trust of which the Judge was a director and shareholder — whether the Commissioner had conducted his preliminary examination on the correct basis and in an adequate and proper manner — whether the HC had erred in dismissing the appellants' application for judicial review.

The issues were: whether the Commissioner was wrong to determine that the complaint was speculative and implausible; whether the Commissioner was entitled to determine the complaint on the basis of the state of the Judge's knowledge; whether the Commissioner had been entitled to consider exculpatory evidence at the preliminary stage; and whether the HC had erred in dismissing the application as an abuse of process.

Held: The Commissioner could decide not to take any further action where the complaint was speculative or implausible. The allegations of deliberate concealment and cover up were inherently improbable. It was fanciful to suggest that potential liability for stamp or gift duty arising on the establishment of Tahakopa would lead the Judge to decide the Trinity case, the recusal application or the costs application other than on the merits. An unsatisfied tax liability in itself was not sufficient to form a basis for recusal. There had been no suggestion by the CIR that there was any such liability. Indeed, it was now over 20 years since the establishment of Tahakopa and no steps had been taken by the CIR to pursue any such liability. It was also problematic as to how Tahakopa might have become liable for stamp duty. By name and function Tahakopa had been incorporated to hold the forestry block for the forestry investors.

The remaining argument was based on an asymmetry of knowledge between the Judge and parties to litigation before him involving the CIR. That depended on inferences being drawn about what both the Judge and the CIR knew and about what the Judge knew about the CIR's knowledge. It was well open to the Commissioner to conclude that the drawing of such inferences was speculative.

It had been open to the Commissioner to approach the matter by considering the state of the Judge's knowledge of the events in 1992 at the times when it was said he did had complied in a material way with any duty there may have been to disclose. The effect of the Commissioner's findings was that the Judge had no knowledge of any potential tax liability and was not put on inquiry in 2005 or in 2006 or at the time of the Court's decision on the recusal application. In that situation, there could not be any question of material non-disclosure and therefore no basis for the Commissioner to form the opinion that an inquiry by a panel was necessary or justified.

The Commissioner's task was preliminary in nature. It was not for the Commissioner to decide disputed questions of fact; those were questions for a panel. However, there was a distinction between finding facts and reaching the conclusion that there was an insufficient evidential basis to justify either recommending a panel be appointed or referral to the Head of Bench.

The Commissioner was not acting as a “mere conduit” but had to undertake a filtering or screening function of complaints and form an opinion as to which of four possible approaches was to be taken to the complaint. That filtering function had to entail some assessment of the facts and consideration of whether on the facts, if established, removal was possible.

In this context, it had been open for the Commissioner, in order to form the opinion required, to consider that the Judge's knowledge at the time disclosure would have been relevant. It followed there was also no bar to the Commissioner considering exculpatory matters. The findings made were logical and rational. Given what the Judge knew, any non-disclosure could not have been deliberate.

The Judge could not now be criticised for not making further inquiry of the sort it was now said he should have undertaken either at the time the submissions or after the Court of Appeal's decision on the recusal application. The appellants had adopted a scatter-gun approach with shifting allegations and emphasis over time. Even in 2006, the Judge was looking back on events of some 14 years previously. That gap in time had some relevance to the extent of any inquiry he could later be expected to make, given the absence of any indication that tax liability might be in issue.

The HC had been right to dismiss the application for judicial review on its merits. Dismissing the application for review as an abuse of process was the proper exercise of the inherent jurisdiction of the HC. The fact that the Commissioner, by a fine margin, decided the complaint was not frivolous or vexatious was not determinative.

The current proceeding was part of an extended course of conduct directed at reopening the earlier litigation. That conduct was unfair and oppressive to the Judge. That was not consistent with the purpose of the complaints process.

Indemnity costs awarded to the Commissioner and counsel for the Judge.

Appeal dismissed.

JUDGMENT OF THE COURT
  • A The appeal is dismissed.

  • B The costs award made in the High Court stands.

  • C The appellants must pay the first respondent and counsel for Venning J indemnity costs (their actual costs incurred in relation to the appeal) and usual disbursements. We certify for second counsel for the first respondent

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No

Introduction

[1]

Factual background

[5]

The Trinity litigation

[6]

The Tahakopa investment

[12]

The complaints

[22]

The Judicial Conduct Commissioner's decision

[36]

The statutory scheme

[43]

The High Court judgment

[53]

The appellants' case on appeal

[60]

Our analysis

[64]

An implausible complaint?

[65]

Relevance of the Judge's knowledge

[71]

The need for inquiry?

[89]

Abuse of process

[99]

Costs in the High Court

[109]

Costs in this Court

[113]

Result

[114]

Introduction
1

The appellants and the second respondent 1 had an involvement with a forestry investment scheme known as the Trinity scheme. In 2004 Venning J presided over a lengthy trial in the High Court and found that the Trinity scheme comprised tax avoidance. 2 That decision led to a series of cases challenging in various ways the tax avoidance finding. One of the challenges was that Venning J should have recused himself from hearing the Trinity case because he was a shareholder and director in a forestry investment, the Tahakopa Forest Trust Ltd (Tahakopa). That challenge was unsuccessful. 3

2

In late May 2010, the appellants complained to the Judicial Conduct Commissioner (the Commissioner) about Venning J. They alleged, among other things, that the Judge made inadequate disclosure in the context of the Trinity litigation about the circumstances surrounding the establishment in 1992 of Tahakopa. The Commissioner undertook a preliminary examination and decided to

take no further action on the complaints under s 15A of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the Act). The appellants sought judicial review of the Commissioner's decision in the High Court. It is from Goddard J's dismissal of that application 4 that the appellants appeal.
3

The appeal raises issues about the proper scope of the Commissioner's preliminary examination. In particular, the first issue is whether the Commissioner conducted his preliminary examination on the correct basis and in an adequate and proper manner and as to whether the Commissioner approached the complaints in the right way. The second issue is whether Goddard J erred in dismissing, at her own instance, the appellants' application for judicial review as an abuse of the process of the High Court. Finally, the appellants challenge aspects of the costs award made in the High Court.

4

For the reasons set out below we consider Goddard J was right to dismiss the application for judicial review. The Judge correctly concluded the Commissioner acted within his powers, considered all relevant matters and that his decision was reasonable. The Judge also correctly dismissed the proceeding as an abuse of process. Before explaining our reasons we first set out the factual background and then summarise the legislative scheme and the approach taken in the High Court.

Factual background

5

We start by saying a little more about the litigation relating to the Trinity scheme.

The Trinity litigation
6

As Goddard J noted, Dr Garry Muir, a taxation expert, was the architect of the Trinity investment scheme. 5 In 1996 he and one of the appellants, Clive Bradbury (his legal partner), set up the scheme. Mr Bradbury and Gregory Peebles, the other appellant, along with others, were investors in the scheme and claimed various expenses...

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