Rabson v Judicial Conduct Commissioner [2020] NZCA 47 (11 March 2020)

Last Updated: 17 March 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA489/2019 [2020] NZCA 47

	BETWEEN	MALCOLM EDWARD RABSON Appellant
	AND	JUDICIAL CONDUCT COMMISSIONER First Respondent SUPREME COURT OF NEW ZEALAND Second Respondent

Counsel:	Appellant in person N M H Whittington for First Respondent V McCall for Second Respondent
Judgment: (On the papers)	11 March 2020 at 11 am

JUDGMENT OF COOPER J

1. The second respondent is removed as a party to the proceeding.
2. The appellant is to pay costs in the sum of $1,147.20.

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REASONS

[1] In a judgment delivered on 11 September 2019 Cooke J struck out an application for judicial review which Mr Rabson had made against the Judicial Conduct Commissioner.^[1] The relevant history of the litigation is set out in the High Court judgment and there is no need to repeat it here.
[2] The reasons the proceeding was struck out were fully explained in the judgment. The Judge held that the “first, and decisive reason” for striking out the proceeding was that Mr Rabson was seeking to relitigate a matter which had already been finally determined.^[2] The second reason given was that, as the Commissioner held, there was no proper basis to join individual judges to a judicial review proceeding in the first place.^[3] Furthermore, any conflict of interest in the Judges, such as that which Mr Rabson wished to assert, was the inevitable consequence of him making complaints about the Judges of the Supreme Court and then seeking to have his judicial review proceeding about those complaints addressed by the Supreme Court.^[4]
[3] In filing his present appeal, Mr Rabson has purported to name the Supreme Court of New Zealand as a proposed second respondent. Counsel for that Court, by memorandum dated 1 October 2019, seeks a direction pursuant to r 5 of the Court of Appeal (Civil) Rules 2005 removing the Supreme Court as a party on the grounds that:

• (a) it was not named as a party in the court below;
• (b) the underlying application challenges a decision of the Judicial Conduct Commissioner, not the Supreme Court;
• (c) the appeal does not seek any relief against the Supreme Court; and
• (d) naming the Supreme Court is vexatious and an abuse of this Court’s process, noting that Mr Rabson is aware that naming the Supreme Court in this way is improper.^[5]

[4] In Rabson v Young, the Supreme Court referred to previous judicial review proceedings commenced by Mr Rabson in the High Court against the Judicial Conduct Commissioner and naming Judges of the Supreme Court as second respondents.^[6] The Court continued:

[2] Earlier proceedings by the applicant against the Judicial Conduct Commissioner in which the applicant named judges as respondents followed the same course. As well, in a third set of proceedings of the same kind, the Supreme Court itself was struck out as a respondent. As a result, the applicant knows that:

(a) the High Court has held, in decisions which have not been successfully challenged, that the joinder of judges in review proceedings against the Judicial Conduct Commissioner is improper;

(b) if he does so, they will be removed and he will be ordered to pay costs on their removal;

...

[5] In the circumstances, it is clear that there must be an order removing the Supreme Court of New Zealand as the second respondent.
[6] Counsel have sought increased costs on the application for removal. Mr Rabson asserts that the second respondent is not entitled to costs “as a matter of law”, having been named as a party in accordance with the requirements of s 9 of the Judicial Review Procedure Act 2016. He also claims the second respondent was removed on an unopposed informal request, and that there is no justification for an award of increased costs. This reasoning cannot be sustained in view of the Supreme Court’s judgment in the passage quoted above, in particular [2(b)]. In the circumstances, Mr Rabson should not have put the Supreme Court in the position of having to seek removal and his doing so has directly given rise to the application for costs.
[7] Given the history of these matters, there is no doubt that it is appropriate for increased costs to be awarded. The sum sought is $1,147.20, counsel having set out the method of calculation in her memorandum of 25 November 2019. Mr Rabson has not challenged the basis on which the increased costs have been calculated, which represents a 20 per cent uplift on the scale.
[8] I therefore order that:

• (a) the Supreme Court be removed as a party to the proceeding; and
• (b) Mr Rabson is to pay costs in the sum of $1,147.20.

[9] That leaves for determination the substantive appeal in which the Judicial Conduct Commissioner is the only respondent. Mr Rabson has sought that the appeal be determined on the basis of documents already filed. It appears from his memorandum of 4 November 2019 that he takes that position because the first respondent notified the Supreme Court that he did not oppose Mr Rabson obtaining leave to appeal to the Supreme Court to raise the same issues that Mr Rabson wishes to assert in this Court. I assume that Mr Rabson is referring to the application for leave to appeal to the Supreme Court that was dismissed by that Court on 18 November 2019.^[7] That judgment makes it clear that the issue before the Supreme Court was whether Mr Rabson should have leave to appeal direct to that Court from Cooke J’s judgment, and it was on that issue that the Judicial Conduct Commissioner abided the decision of the Court. It does not follow that the Commissioner will abide the decision of this Court on Mr Rabson’s appeal to this Court.
[10] Nevertheless, it is appropriate for the Commissioner’s position on the present appeal to be clarified. He should advise the Court of his position within 10 working days. Following that, appropriate arrangements can be made for the determination of the appeal.

Solicitors:
Meredith Connell, Wellington for First Respondent
Crown Law Office, Wellington for Second Respondent

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^[1] Rabson v Judicial Conduct Commissioner [2019] NZHC 2279.

^[2] At [19].

^[3] At [21].

^[4] At [22].

^[5] Citing Rabson v Young [2017] NZSC 146 at [2]; and Rabson v Judicial Conduct Commissioner [2016] NZHC 884.

^[6] Rabson v Young at [1].

^[7] Rabson v Judicial Conduct Commissioner [2019] NZSC 128.