A Wellington man bankrupted by the NZ courts on a $29,000 debt while the court-appointed trustee of his trust valued at over $2 million refused to provide accounts has filed a judicial review of the Supreme Court Registrar’s failure to publicly record an unreasoned judgment in refusing his appeal to the Supreme Court.
The failure to publicly record occurred in an appeal where the Supreme Court appeared to concur three senior Court of Appeal judges breached the rule of law in their judgment. The Supreme Court nonetheless dismissed the man’s application on the grounds no public importance evolved because the miscarriage of justice was confined to the appellant and he had the option (undefined) to seek recall from the Court of Appeal.
Last month the Supreme Court rejected M E Rabson’s application to appeal against a Court of Appeal judgment awarding costs to the court- appointed trustee on the basis his better option was to seek recall of the Court of Appeal judgment notwithstanding strict limitations on recall and recall not being available where a right of appeal against the judgment conclusion exists.
That Court of Appeal judgment, by (now Supreme Court) Justice Mark O’Regan, Justice Douglas White and Justice Forrie Miller, was a reserved judgment which awarded costs to the court trustee despite expressly acknowledging Mr Rabson had no standing at the hearing for which costs of $5,000 were awarded against him and personally in favour of the court-appointed trustee.
Mr Rabson lodged an appeal on a point of law: he pleaded it is unlawful and unprecedented for judges to award costs against parties expressly recognised to have no standing (and therefore could not be heard).
The Supreme Court first sent a private Minute asking Mr Rabson to withdraw his appeal in favour of a lower court recall. After Mr Rabson refused on grounds the Supreme Court provided the statutory remedy under the Supreme Court Act 2003, the Supreme rejected his application, stating, “We do not consider it in the interests of justice to grant Mr Rabson’s application for leave. This is not a matter of general or public importance as it arises out of the particular facts of Mr Rabson’s case. Further, there is no risk of a miscarriage of justice as Mr Rabson has the ability to apply for a recall of the Court of Appeal’s decision. In addition, the Court of Appeal is the best placed to assess any issues that may arise as to costs on the abandoned appeal.”
Mr Rabson sought recall of the Supreme Court dismissal on the ground the Supreme Court, having recognised a miscarriage, evaded its statutory obligations to correct errors by the Court of Appeal after confirming three senior judges of the Court of Appeal made a rule of law error sufficient to warrant the extraordinary remedy of recall. Rabson cited the 2011 Supreme Court ruling in Chapman v Attorney General which reasoned the establishment of the Supreme Court as a new mechanism to correct rights breaches by Court of Appeal judges was a mitigating factor in declaring judges exempt from remedial compliance with the New Zealand Bill of Rights Act 1990.
What happened next is the subject of the judicial review. Mr Rabson received an unauthored email from an anonymous ‘Supreme Court’ email address which stated “The application raises no new matters and is dismissed. -14 August 2014.” The Registrar then refused requests this anonymous and unreferenced judgment dismissing the recall be publicly recorded.
Transparency of New Zealand Supreme Court business is a mounting problem. In addition to this latest review, the Supreme Court Registrar is the subject of judicial review proceedings for refusing to allow general public access to Supreme Court records on grounds the lack of enabling legislation applicable to the other courts do not apply to the Supreme Court. Three unrelated requests to inspect written applications made to the Supreme Court have been rejected as “prohibited” activities by Registrar Gordon Thatcher.