Malcolm Edward Rabson v Judicial Conduct Commissioner

JurisdictionNew Zealand
CourtHigh Court
JudgeCull J
Judgment Date25 October 2016
Neutral Citation[2016] NZHC 2539
Docket NumberCIV-2016-485-238
Date25 October 2016

[2016] NZHC 2539



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

Malcolm Edward Rabson
Judicial Conduct Commissioner

ME Rabson (in person)

L Theron and C Cross for respondent

Copy to:

M A Rabson

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.

The issues were: whether the proceedings 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 abuse of process because the Commissioner should not take an active role in the proceeding; whether indemnity costs should beawarded.

Held: The first ground of review, namely an alleged error of law, was not reasonably arguable. The Commissioner was precluded by s 8(2) of the Act from considering the legality or the correctness of any judgment and was required by s 16(1)(a) to dismiss complaints that were not within the Commissioner's jurisdiction.

The Commissioner did not make “merit determinations on judicial misconduct”, as but instead acted as a clearing house for complaints ( Siemer v Judicial Conduct Commissioner). The Commissioner's role was simply to determine whether there was sufficient basis for the matter to be dealt with by a Panel or whether the complaint was better dealt with in another way. The authorities were clear that if complaints to the Commissioner involved his consideration of the merits of judicial determinations, they were outside the Commissioner's jurisdiction and the review challenge must fail.

R had framed his complaints to the Commissioner about judicial conduct as being outside their judicial determinations. However, the only evidence given for the alleged misconduct in each complaint was the giving of decisions, the issuing of minutes or rulings and the substance of those decisions. R deduced various facts about the Judge's motivations for their decisions, but he provided no evidence to support his conclusions. Each complaint was substantially about the judicial decisions of the Judges. Therefore the grounds of review alleging an error of law were not reasonably arguable.

The procedural impropriety complained of, did not form part of the Commissioner's decision and was not part of his reasoning. The Commissioner commented, clearly as a footnote to the decision, that R was in the practice of notifying various public officials of his complaints and suggested that R might consider refraining from this practice. The Commissioner's comments were not about R's complaints to him, and nor were they intended to dissuade R from making further complaints. It did not form part of his decision.

Judicial review on the ground that the Commissioner failed to consider the merits of R's complaints, and therefore failed to take into account a relevant consideration, was premised on R's erroneous view of the law. The Commissioner was precluded from considering the merits of R's complaints where they concern the substance of judicial determinations.

R's claim in judicial review disclosed no reasonable cause of action.

R had made extreme allegations against the Judges of the SC but provided no evidence or reasonable basis for these allegations beyond his own speculation. Comparing R's complaints with the decision in issue, revealed that at times R had misinterpreted the Court's words in a number of respects and his interpretation formed the basis of R's allegations in a number of cases.

R had persistently pursued remedies from the courts in relation to various costs decisions since 2011. The SC judgments in issue in this proceeding related to the same underlying dispute. He had made at least 28 applications to the SC, 18 applications to the Court of Appeal, six applications to the High Court and 52 complaints to the Commissioner. The Commissioner had previously dismissed complaints for want of jurisdiction and had sought to explain this limitation to R. In this context, this revealed a pattern that was vexatious.

The majority of R's complaints to the Commissioner were attempts to reopen litigation in the SC. His judicial review of the Commissioner's process sought to have the Commissioner enquire into the correctness of court decisions. This was a collateral attack on the decisions in question. The proceedings were an abuse of process and, on that basis, should be struck out.

Where proceedings disclosed no reasonable cause of action and were in themselves an abuse of process, the Commissioner was entitled to apply to strike — out the proceedings, which would incur further cost and time. The strike-out application was not an abuse of process in these circumstances and the Commissioner had appropriately commenced the application, which was successful.

R also submitted that the Commissioner's application ignored his right to judicial review under s 27(2) New Zealand Bill of Rights Act 1990. The right to access the courts should not be declined lightly. That was the reason for the high threshold that had to be reached before a claim was struck out. However, the right was not an unlimited one, and there were caseswhere strike out principles prevented a judicial review application from proceeding. R's application met that high threshold that justified it being struck out. The decision was not one that was made lightly.

Pursuant to r 14.6(1)(b) High Court Rules, the Court could order that the costs payable were the actual costs incurred by a party, or indemnity costs. This included where the party had acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding.

There was a pattern of complaints and applications by R, which had been unsuccessful and despite his earlier failure in making his complaint against the Commissioner, R had chosen to seek a further judicial review of the Commissioner, with the same issues identified in this judgment as in the former. In this matter, the Commissioner made a concerted effort to advise R of the limits to his jurisdiction, but to no avail. The proceeding was hopeless from the outset. For these reasons indemnity costs should be awarded in favour of the Commissioner.

Strike out granted. The Commissioner was entitled to indemnity costs.



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.


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


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

Mr Rabson made four separate complaints to the Commissioner.

First complaint

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.


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...

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1 cases
  • Sutcliffe v Tarr
    • New Zealand
    • Court of Appeal
    • 3 May 2018
    ......, either because the party has, by his conduct, done that which might fairly be regarded as ...: 22 … where a final judicial decision has been pronounced by a New Zealand ... Ltd (1997) 11 PRNZ 581 (HC) at 586; Rabson v Judicial Conduct Commissioner [2016] NZHC 2539 ......

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