Malcolm Edward Rabson v Judicial Conduct Commissioner

• Jurisdiction: New Zealand
• Judge: Cull J
• Judgment Date: 25 October 2016
• Neutral Citation: [2016] NZHC 2539
• Docket Number: CIV-2016-485-238
• Court: High Court
• Date: 25 October 2016

Under the Judicature Amendment Act 1972 and s 27(2) of the New Zealand Bill of Rights Act 1990

In The Matter of an application For Judicial Review Under S 16 Of The Judicial Conduct Commissioner And Judicial Panel Act 2004

BETWEEN

Malcolm Edward Rabson

Applicant

and

Judicial Conduct Commissioner

Respondent

[2016] NZHC 2539

CIV-2016-485-238

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application by the Judicial Conduct Commissioner (the Commissioner) to strike out the applicant's judicial review proceedings on the grounds that they were frivolous, vexatious or otherwise an abuse of process, in that the claim was a collateral attack on Court decisions and involved extreme allegations, which had no reasonable basis — the applicant was seeking judicial review of a decision by the Commissioner that the applicant's complaints against various Supreme Court judgesamounted to a collateral attack on various judgments and were outside his jurisdiction — the applicant had previously made52 complaints to the Commissioner — the Commissioner had sought to explain the jurisdiction limitation — whether theproceedings were a collateral challenge and an abuse of process — whether the Commissioner had improperly taken into account the taxpayer's purse in reaching his decision — whether the strikeout application was an abuseof process because the Commissioner should not take an active role in the proceeding — whether indemnity costs should be awarded.

Counsel:

ME Rabson (in person)

L Theron and C Cross for respondent

Copy to:

M A Rabson

JUDGMENT OF Cull J

1 The Judicial Conduct Commissioner (the Commissioner) has filed an application to strike out Mr Rabson's proceedings in judicial review. Mr Rabson seeks to judicially review the decision of the Commissioner, who dismissed Mr Rabson's complaints against decisions of various Supreme Court Judges. The Commissioner found that the complaints were outside his jurisdiction, because they were each directed at the accuracy or lawfulness of judicial decisions. Mr Rabson says that was an en-or of law and he challenges the Commissioner's decision on that basis and further alleged procedural improprieties.

2 The Judges of the Supreme Court were initially joined as parties by Mr Rabson to the proceedings, but have since been struck out as second respondents. 1

3 The Commissioner has applied to strike out the proceedings on the grounds that they disclose no reasonable cause of action and are frivolous, vexatious or otherwise an abuse of process, in that Mr Rabson's claim is a collateral attack on Court decisions and involves extreme allegations, which have no reasonable basis. The Commissioner also seeks indemnity costs.

Mr Rabson's complaints to the Commissioner

4 Mr Rabson made four separate complaints to the Commissioner.

First complaint

5 The first, dated 17 February 2016, concerns the Supreme Court decision in Rabson v Transparency International New Zealand Inc. 2 In that judgment, the Supreme Court declined leave for Mr Rabson to appeal the Court of Appeal's decision to strike out his appeal. Mr Rabson argued that, as the appeal was deemed abandoned, the strike out should not have been decided. The Supreme Court rejected his argument, noting that it was arguable the appeal was not abandoned because of a live application for an extension of time. Further, Mr Rabson did not treat the appeal as having been abandoned. An order of costs was made against him.

6 Mr Rabson's complaint to the Commissioner was that the Judges abused their discretion and were motivated by illegal acts of the judiciary, in advising the board of Transparency International New Zealand Inc that it could ignore Mr Rabson's complaint. Mr Rabson claimed that the Judges failed to disclose their personal involvement in the issue. He challenged the costs order made against him, and said it was unreasonable for the Court to rely on him as a lay litigant to advise the Court that his appeal had been abandoned.

Second complaint

7 Mr Rabson's second complaint was sent on 26 February 2016 and concerned the judgment of the Supreme Court in Rabson v Chapman. 3, In that judgment the Supreme Court declined a second application for leave to appeal against the Court of Appeal's decision striking out his appeal. Mr Rabson sought to appeal the strike out decision in 2014 but it was refused on the basis that he could apply to recall the Court of Appeal's judgment. Mr Rabson did so, but the application was still not determined when the second application for leave was filed.

8 The substance of the appeal concerned the same issue as in Rabson v Transparency International New Zealand Inc discussed above. The Supreme Court dismissed the application for leave on the grounds that it did not raise a point of law of general or public importance and there was no miscarriage of justice. It was relevant that costs can be awarded on an abandoned appeal as well as a strike out.

9 Mr Rabson's complaint in this regard was directed primarily against Glazebrook J's minute and subsequent judgment, indicating that Mr Rabson could seek to recall the Court of Appeal's judgment. Mr Rabson viewed this direction as dishonest, because the application had not yet been determined. Concerning all three Judges sitting on the leave application, Mr Rabson said that it was an abuse of their office to order costs against him. Mr Rabson interpreted the indication from Justice Glazebrook that Mr Rabson could seek to recall a judgment of the Court of Appeal as an order to the Court of Appeal that the judgment should in fact be recalled. O'Regan J, who sat on the Court of Appeal at that time but had since moved to the Supreme Court, was accused of being “transparently retaliatory” in this regard.

Third complaint

10 The third complaint was sent the following day on 27 February 2016. It complained about the decision of the Supreme Court in Rabson v Chapman. 4 In that decision, the Court dismissed Mr Rabson's application to recall the judgment in

Rabson v Chapman, 5 which dismissed his application for leave to appeal. Mr Rabson argued that the judgment was a nullity because the underlying Court of Appeal judgment had been deemed abandoned. The Supreme Court rejected this argument on the basis that the application for leave had been filed and not withdrawn, and therefore it had to be determined

11 Mr Rabson's third complaint was that the Supreme Court misstated his ground of Appeal. He says that his application for leave quoted an earlier judgment of the Supreme Court, which was mistakenly taken as being his submission. Mr Rabson argued this is relevant because the Court then did not accept the submission (which was its own ruling).

Fourth complaint

12 The fourth complaint dated 3 March 2016 concerns the Supreme Court's ruling of 26 February 2016 in the matter of Rabson v Chapman. The ruling was in the form of a handwritten note on the front page of Mr Rabson's application. Mr Rabson sought to recall a judgment that he thought inaccurately stated his ground of recall. The Court's ruling read:

The Court has understood Mr Rabson's submission. No new matters are raised. Application for recall dismissed.

13 Mr Rabson's complaint alleged that the phrase “The Court has understood Mr Rabson's submission” meant that the Court agreed with him that there was an error. That being the case, the Court refused to correct an accepted inaccuracy, which is deceptive.

Fifth complaint

14 The fifth and final complaint that is the subject of these proceedings concerns the Supreme Court's judgment in Rabson v Transparency International New Zealand Inc. 6 That judgment dismissed Mr Rabson's application for recall of the Supreme Court's earlier judgment, which dismissed his application for leave to appeal a

judgment striking out his appeal in the Court of Appeal. The Court simply recorded: “There is nothing in the submissions he has made in support of his application to warrant recall. The application is accordingly dismissed.”

15 Mr Rabson says this was a false statement because he did in fact make submissions in support of his application.

The Commissioner's decision

16 The Commissioner issued a decision on 13 April 2016, having completed an examination of the five complaints. The Commissioner isolated from those complaints the following allegations of judicial misconduct:

• (a) aberrant personal interest and improper personal motivation;

• (b) deliberate misrepresentation of material fact;

• (c) dishonesty; factual fabrication; failure to disclose conflict;

• (d) ignoring law, facts and clear evidence;

• (e) ineptitude;

• (f) misfeasance;

• (g) outrageous abuse of office;

• (h) perversion of the course of justice;

• (i) profound corruption;

• (j) protection of j udicial colleagues;

• (k) reprehensible deception; and

• (l) transparent retaliatory and retributive behaviour.

17 The Commissioner noted that he had previously taken painstaking efforts to explain the limits on his jurisdiction. However, the Commissioner also explained that he had “been at equal pains in the examination of what [Mr Rabson] had to say”.

18 The Commissioner found that, when dwelling on any particular point, he was drawn inexorably to challenging or calling into question judicial decisions, which is outside his jurisdiction. All complaints were therefore dismissed as being beyond the Commissioner's jurisdiction, as required by s 16(l)(a) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the Act).

19 Section 8 of the Act sets out the functions and powers of the Commissioner. Section 8(2) explicitly states:

• (2) 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 proceeding.

20 After dismissing the complaints, the...