CRESER v JUDICIAL CONDUCT COMMISSIONER [2017] NZHC 1486

CRESER v JUDICIAL CONDUCT COMMISSIONER [2017] NZHC 1486 [30 June 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2016-485-262[2017] NZHC 1486UNDER the Judicature Amendment Act 1972 ands 27(2) of the New Zealand Bill of Rights Act1990IN THE MATTER OF an application for Judicial Review under s 16of the Judicial Conduct Commissioner andJudicial Panel Act 2004BETWEEN RICHARD JOHN CRESERApplicantAND JUDICIAL CONDUCT COMMISSIONERRespondentHearing: 24 May 2017Appearances: Mr Creser appearing in personL Theron for the RespondentJudgment: 30 June 2017JUDGMENT OF MALLON JIntroduction[1] It is Mr Creser's view that if a Court, in giving judgment on a matter,inaccurately describes the grounds on which the proceeding is brought or thesubmissions advanced by a party, the Court has breached the Public Records Act 2005.It is his view that the Supreme Court1 has breached the Public Records Act in this way.He made a complaint to the Judicial Conduct Commissioner (the Commissioner) onthis basis and provided two examples of judgments where he considered this hadoccurred.21 He takes the same view of the Court of Appeal (concerning a costs order made against him anumber of years ago), but this is not part of the present claim.2 This first example related to the two decisions: Crequer v Chief Executive of the Ministry of SocialDevelopment [2014] NZSC 119 and Crequer v Chief Executive of the Ministry of SocialDevelopment [2015] NZSC 18. I understand the second example concerned the followingdecisions: Siemer v O'Brien [2015] NZCA 86; Siemer v O'Brien [2015] NZSC 63; Siemer v[2] The Commissioner dismissed the complaint on the grounds it did not havejurisdiction.3 He considered the complaint involved:4 challeng[ing] or call[ing] into question the legality or correctness of anyinstruction, direction, order, judgment, or other decision given or made by aJudge in relation to any legal proceedings.[3] Mr Creser brought this proceeding challenging the Commissioner's decisionon three grounds.5 Essentially, however, they come down to whether his complaint,that inaccurate judgments breach the Public Records Act, challenges "the correctness"of the decisions.6[4] The Commissioner applies to strike out Mr Creser's proceeding. He contendsthe proceeding does not disclose a reasonable cause of action.7 The Commissionersays that a decision which has misunderstood grounds, facts or submissions could giverise to an incorrect decision. Depending on the level of the court such a decision maygive rise to a review or appeal. Depending on the error it may give rise to anapplication for recall.8 It cannot be considered by the Commissioner, however, as itinevitably draws the Commissioner into the correctness of the decision.9[5] The Commissioner also contends the proceeding is vexatious or otherwise anabuse of the court's process.10 This is because the grounds for Mr Creser's reviewO'Brien [2015] NZSC 64; Siemer v O'Brien [2015] NZSC 92; and Siemer v O'Brien [2015] NZSC93.3 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 16(1)(a).4 Section 8(2).5 Error of law, failure to take into account relevant considerations and procedural impropriety.6 It is not in dispute that the Commissioner does not have jurisdiction to consider the "correctness"of a decision.7 High Court Rules 2016, r 15.1(a).8 I note that Mr Creser's complaint concerned two decisions of our highest court. Once avenues ofreview or appeal (or recall, if available) are exhausted, the interests of justice require finality. Theintegrity of the system rests "on the finality of outcomes arrived at judicially" and "requires respectfor subsisting judicial determinations and avoidance of the vexation or re-litigation":Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7 at [55]. See also Adrian Zuckerman,Zuckerman on Civil Procedure Principles of Practise (3rd ed, Sweet & Maxwell, Oxford, 2013)at [25.1]: certainty is an aspect of the rule of law. Accordingly there is a strong public interest inensuring that the possibility of litigation is not open ended. And, at [25.3], citing Ampthill PeerageCase [1977] AC 547 at 568 per Lord Wilberforce: "Any determination of disputable fact may, thelaw recognises, be imperfect: the law aims at providing the best and safest solution compatiblewith human fallibility and having reached that solution it closes the book."9 As the Commissioner said in a similar context, "it is simply the case that when I dwell on anyparticular point, I am drawn inexorably to challenging or calling into question judicial decisions":as quoted in Rabson v Judicial Conduct Commissioner [2016] NZHC 2539, [2016] NZAR 1679at [35].10 Rule 15.1(c) and (d).have been rejected already in a number of similar applications.11 It is also becauseMr Creser has made speculative allegations of serious misconduct against Judges ofthe Supreme Court.[6] Mr Creser says his complaint is not about the correctness of the decisions. Itis about whether the decisions breach the Public Records Act. In his carefullycompiled written submissions he puts it this way: the Act imposes an obligation tokeep full and accurate records in accordance with normal prudent business practice;as to a court decision this requires a full and accurate record of who the parties are, thematters in dispute, the grounds for the application and the facts before the court; thecomplaints of misconduct involve the failure of the Supreme Court to consider all fourof these elements of record keeping.[7] I consider the Commissioner's view is correct.12 If he were to investigate thematter he would need to seek information about the scope of the proceedings beforethe Court, the facts before the Court and the submissions advanced. He would thenneed to consider whether the Supreme Court had accurately described those mattersin its judgment. Inevitably that would involve the Commissioner reviewing theCourt's assessment as to the nature and scope of the proceedings, the relevant factsand the summary of the relevant submissions. Assessment of those matters is part ofthe judicial function in reaching a decision. Material errors in that assessment wouldlead to an incorrect decision.[8] Mr Creser seeks to distinguish between what he describes as "case facts" and"decision facts". He regards his complaint to the Commissioner to be about theformer, and therefore not directed to correctness of the decision. However theexamples forming the basis of his complaint to the Commissioner show that thisdistinction is illusory.11 The Commissioner refers to Siemer v Judicial Conduct Commissioner [2012] NZHC 1481 at [45]-[46]; Siemer v Judicial Conduct Commissioner [2013] NZHC 1853 at [11]; Siemer v JudicialConduct Commissioner [2014] NZHC 596 at [2] and [11]; Rabson v Judicial ConductCommissioner [2016] NZHC 3162 at [11]-[15]; Rabson v Judicial Conduct Commissioner [2017]NZHC 540 at [8]-[9], [26], [29] and [34].12 This was also the view reached in Rabson v Judicial Conduct Commissioner above n 9 and Rabsonv Judicial Conduct Commissioner above n 11 which involved similar issues.[9] In his first example, Mr Creser said the Supreme Court had dismissed an appealby Ms Crequer on the false premise that "the application for leave to appeal involvedinterlocutory issues as to an appeal to the High Court and thus fell to be consideredunder s 13(4) of the Supreme Court Act 2003".13 He says this was false because theappeal was against the Court of Appeal's costs order against the appellant.[10] If Mr Creser was correct that the Supreme Court had misunderstoodMs Crequer's appeal, then its answer to her application would be wrong. That isbecause it would have dismissed the appeal without having considered the relevantmatter that was before it. As the Commissioner submits an incorrect decision can,depending on why it was incorrect, be the subject of a recall application. In this caseMs Crequer did just that. The Supreme Court considered that application anddismissed it. Moreover Mr Creser's submission, that Ms Crequer's appeal fell to beconsidered under s 13(4) of the Supreme Court Act was a false premise, involves alegal assessment of the scope of s 13(4).14 If the Commissioner were to investigatewhether the premise was false he would be drawn into considering the correctness ofthe judicial decision.[11] The second example Mr Creser relied on before the Commissioner concernedan appeal by Mr Siemer.15 Mr Creser said it was his understanding that Mr Siemerappealed on the procedural ground that retrospectively granting the Attorney-Generalstanding was unlawful. He says the Supreme Court described the appeal as beingagainst the general practice of the Attorney-General defending claims against theCrown. He says the actual issue is irreconcilable with the issue as represented by theCourt. However again this is a challenge about the basis on which an appeal has beendismissed. The Court has assessed what it considered the issue to be and has given itsdecision accordingly. Mr Siemer sought recall. The Court considered his applicationsand dismissed them.16 If the Commissioner were to consider whether the Court had13 Refer two Crequer decisions above n 2.14 This section concerns appeals from orders made by the Court of Appeal on an interlocutoryapplication. As the Supreme Court judgment on the recall application went on to explain, itapplied both to a High Court procedural ruling (which had been the subject of an appeal to theCourt of Appeal) and the Court of Appeal's costs order.15 Refer multiple Siemer decisions above n 2.16 In the two judgments on the recall applications of Siemer v O'Brien above n 2 the Court heldrespectively that "the judgment did not set out in detail the proposed appeal ground because it wasnot necessary to do so. There was no material inaccuracy in the judgment and there is no properbasis for it to be recalled"; and "there was no need for the Court to set out in full what the basiserroneously described the issue, he would be called into questioning the correctnessof the judicial decision.[12] Because I have concluded the statement of claim must be struck out asdisclosing no reasonable cause of action, it is not necessary that I determine whetherit was frivolous, vexatious or an abuse of process. I note Mr Creser's submission thathe has been unable to provide evidence of misconduct by the Supreme Court becausehis complaint has not been investigated and he does not have a statement of defence.He is therefore left with what is apparent from the decisions themselves. The difficultywith this is that allegations of serious misconduct should not be made without a properfoundation. Such misconduct is not apparent in the two examples he provided. Thereis nothing in those decisions to suggest that the Court was doing anything other thanjudicially undertaking the task before it.Result[13] The application to strike out the proceeding is granted. The Commissionertherefore need not file a statement of defence. The Commissioner seeks costs on a 2Abasis. I make an order accordingly.Mallon Jon which the challenge to the participation of the second respondent in the appeal was pursued".