RABSON v JUDICIAL CONDUCT COMMISSIONER [2020] NZCA 247

RABSON v JUDICIAL CONDUCT COMMISSIONER [2020] NZCA 247 [23 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA489/2019[2020] NZCA 247BETWEEN MALCOLM EDWARD RABSONAppellantAND JUDICIAL CONDUCT COMMISSIONERRespondentCourt: Cooper, Brown and Clifford JJCounsel: Appellant in personN M H Whittington and K S Rouch for RespondentJudgment:(On the papers)23 June 2020 at 1 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The respondent is entitled to costs in accordance with [8] of this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] This is an appeal against a judgment delivered on 11 September 2019 byCooke J, in which he struck out an application for judicial review which Mr Rabsonhad made against the Judicial Conduct Commissioner.1[2] The Judge recited, as background, an extensive history of litigation in whichMr Rabson had complained about judges and decisions of the Judicial Conduct1 Rabson v Judicial Conduct Commissioner [2019] NZHC 2279 (High Court judgment).Commissioner on his complaints. He recorded that since 2011, Mr Rabson had madeat least 46 applications to the Supreme Court, 28 applications to the Court of Appealand 17 applications to the High Court.2[3] The Judge gave what he described as the "immediate background" to theCommissioner's strike-out application by referring to the following:3(a) A complaint lodged with the Commissioner on 1 December 2016,alleging Ellen France J had a conflict of interest when dismissing areview of a decision of the Supreme Court Registrar declining to waivethe payment of filing fees.4 Mr Rabson asserted the Judge had acted inher own cause, given that her own decision was ultimately at issue inthe proceedings.(b) After that complaint was dismissed by the Commissioner, Mr Rabsoncommenced judicial review proceedings against the Commissioner on7 March 2017. He named as second respondents five Supreme CourtJudges. The Judges were removed as respondents by Ellis J and Faire Jsubsequently ordered Mr Rabson to pay costs in the sum of $777.50 ontheir removal.5 This proceeding was subsequently struck out by Faire Jas an abuse of process.6(c) Then, Mr Rabson sought to appeal the costs decision to the Court ofAppeal. He applied for dispensation of security for costs on his appeal,but the Registrar declined his application. Mr Rabson sought a reviewof that decision, but the decision was upheld by French J.7(d) Mr Rabson applied to the Supreme Court for leave to appeal French J'sdecision. On 28 September 2017, the application for leave to appeal2 At [3].3 At [3] and [4]–[12].4 Rabson v Shephard [2016] NZSC 152.5 Rabson v Judicial Conduct Commissioner HC Wellington CIV-2017-485-133, 8 June 2017(minute of Faire J).6 Rabson v Judicial Conduct Commissioner [2017] NZHC 1249.7 Rabson v Judicial Conduct Commissioner [2017] NZCA 349.was dismissed as an abuse of process.8 The Judges noted theimpropriety of Mr Rabson naming judges in judicial reviewproceedings and noted that Mr Rabson knew his conduct was improper.They were satisfied that Mr Rabson's conduct constituted an abuse ofprocess, exemplified by "circularity, repetitiveness and generalvexatiousness".9(e) This was followed by a further complaint to the Commissioner on6 October 2017. This time Mr Rabson complained that William Youngand O'Regan JJ were two of the five judges whom he had initiallynamed as respondents and were accordingly beneficiaries of the costsaward made by Faire J. This meant they should not have consideredhis application.(f) The Commissioner dismissed that application on 29 June 2018.Mr Rabson then filed a further application for judicial reviewchallenging that decision on 8 August. Those proceedings howeverwere not accepted for filing but referred to Cooke J under r 5.35A ofthe High Court Rules 2016. The Judge then struck out the proceedingunder r 5.35B, as an abuse of process.10 In the course of doing so, theJudge said:[8] In my view the proceedings are plainly abusive for essentiallythe same reasons. They are attempting to again relitigate a matter thathas already been addressed by the Courts, including in a judicialreview challenge to a decision of the Commissioner which was struckout as an abuse. In my view the Commissioner was plainly right todismiss the complaint, and the judicial review challenge to hisdecision is also plainly an abuse of process.(g) Mr Rabson then filed a further proceeding seeking judicial reviewwhich Cooke J struck out in the judgment which is the subject of thisappeal. On this occasion, and "[u]nfortunately" as the Judge remarked,the Registrar accepted the proceedings for filing without considering8 Rabson v Young [2017] NZSC 146.9 At [4].10 Rabson v Judicial Conduct Commissioner [2018] NZHC 2053.the powers set out in r 5.35A(1) of the High Court Rules.11 In response,the Commissioner filed a formal application to strike out theproceedings. The Judge observed:[14] It is unnecessary to recount the submissions advanced by theCommissioner, and all the grounds he advances for striking out theproceeding. In my view the central consideration is that Mr Rabsonis seeking to relitigate in this proceeding what has already been finallydetermined against him in other proceedings on more than oneoccasion. The relevant principle preventing Mr Rabson doing this hasbeen described in the following terms by the Supreme Court:12[28] The principle of finality in litigation gives rise toa rule of law that makes conclusive final determinationsreached in the judicial process:Unless a judgment of a Court is set aside onfurther appeal or otherwise set aside or amendedaccording to law, it is conclusive as to the legalconsequences it decides.The rule reflects both the public interest in there being anend to litigation and the private interest of parties to courtprocesses in not being subjected by their opponents tovexatious relitigation[4] The Judge observed that the current proceeding was an abuse of process on thesame basis as that which he had previously struck out. Mr Rabson claimed that theearlier decision was misconceived on the basis that his complaint to the Commissionerhad not sought to challenge the correctness of the decision made by the Supreme Court(within the meaning of s 8(2) of the Judicial Conduct Commissioner and JudicialConduct Panel Act 2004), but was about the decision of judges to sit on the matterwhen were supposedly beneficiaries of the costs award ultimately in issue.The complaint in other words was about the Judges sitting, not the decision theyreached when they sat. Cooke J evidently thought that was a distinction which mighthave merit, but considered that it could not prevent the present proceeding being struckout. The "first, and decisive reason" for that was that Mr Rabson was seeking torelitigate a proceeding which had already been finally determined.13 The finaloutcome of the proceeding was binding on him. Further, and in any event, as11 High Court judgment, above n 1, at [12].12 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013]1 NZLR 804 (footnotes omitted).13 High Court judgment, above n 1, at [19].the Commissioner had held, there was no proper basis to join individual judges to thejudicial review proceeding.14 Any conflict of interest in the Judges, which Mr Rabsonsought to assert, was simply the inevitable consequence of him making complaintsabout the Judges of the Supreme Court and then seeking to have his judicial reviewproceeding about those complaints addressed by that Court.15[5] For completeness, we record that the present appeal initially named theSupreme Court of New Zealand as the second respondent. In a judgment of this Courtdelivered on 11 March 2020 the Supreme Court was removed as a party to theproceeding.16[6] The Judge was correct to strike out Mr Rabson's vexatious claim as an abuseof process for the reasons he gave, which we have summarised at [4] above. Thosereasons need no elaboration and we endorse them. There is no need to consider theambit of s 8(2) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act,although we note the position of the Commissioner, set out in the submissions ofcounsel for the respondent, that s 8(2) excludes the jurisdiction of the Commissionerwhere the complaint made is about a decision of a judge to sit in relation to legalproceedings.[7] The appeal is dismissed.[8] The Commissioner is entitled to costs. If increased or indemnity costs aresought, a memorandum should be filed within seven working days. Any memorandumby Mr Rabson in opposition is to be filed within a further seven working days. If theCommissioner does not seek increased or indemnity costs, he is entitled to costs fora standard appeal on a band A basis.[9] It is clear that Mr Rabson's conduct over a number of years now has involvedthe vexatious and repetitive commencement of proceedings and appeals all apparentlyconcerning the same matter. The consequence is that this Court's time, and that of theHigh Court and the Supreme Court, has been wasted time and time again.14 At [21].15 At [22].16 Rabson v Judicial Conduct Commissioner [2020] NZCA 47.[10] We direct the Registrar to refer a copy of this judgment to the Solicitor-Generalfor the consideration of such further steps as she might consider appropriate havingregard to s 166 of the Senior Courts Act 2016.Solicitors:Meredith Connell, Wellington for Respondent