In another page from the secret court files of New Zealand’s highest court is the cloak and dagger appeal of Rabson v Judicial Conduct Commissioner SC21/2017.
No one can tell by the Registry’s file reference that this appeal concerns a costs order obtained in favour of Supreme Court justices Sian Elias, William Young, Susan Glazebrook, Terrence Arnold and Mark O’Regan. The Registrar has repeatedly refused to allow his judicial bosses to be properly named in the appeal, writing the Appellant on 13 March 2017, “The High Court struck out the Supreme Court judges as the second respondents and as such they are not included in the application for leave to appeal”. This position comes notwithstanding the appeal ground being the High Court costs order in favour of the “struck out party” was unlawful and unreasoned – as well as the reality these benefactors of the order are improperly hiding behind a defendant who took no position on their application and is unaffected by the order.
The synopsis of the case is the Appellant filed a judicial review of the Judicial Conduct Commissioner’s refusal, on lack of jurisdiction grounds, to consider alleged misconduct by the named judges for meeting off the record, on their own initiative, without notice to or hearing from anyone, then deciding court record search statutes do not apply to the Supreme Court, forbidding their Registrar to comply with such requests and declaring any member of their court can issue an un-appealable order preventing access to every Supreme Court file (see Greer v Smith  NZSC 196).
Rabson said the judges engaged in personal misconduct as they must have known it was unlawful to meet privately on their own to grant themselves new legal powers, let alone powers to prevent transparency into their own actions, against the expressed will of Parliament as it relates to all other courts. (Relevantly, the court transparency statutes were enacted in 1973 and 1974, before the Supreme Court of New Zealand was created by statute in 2003)
Judicial Conduct Commissioner Alan Ritchie dismissed the complaint saying he had no jurisdiction under the Judicial Conduct Commissioner and Judicial Panel Act 2004 to consider whether the Judges had acted unlawfully.
In respect of Judicial Reviews section 9 of the Judicature Amendment Act 1972 requires “every party to the proceedings in which any decision to which the application relates was made, shall be cited as a respondent.” Notwithstanding this requirement, the Supreme Court judges instructed counsel to seek their names be removed. Rather than do this informally under section 10 of the Act, the judges’ counsel sought Mr Rabson appear to answer their application and then went after him for costs despite his lack of opposition to their application.
Ignoring the legal requirement imposed by section 9 of the relevant statute, Joe Williams J’s 100 word ruling on the judges’ application proclaimed, “The position is clear that the judges of the Supreme Court are not properly joined and are struck out accordingly. An award of costs is appropriate.”
Rabson appealed to the Court of Appeal where the Registry variously assigned an incorrect file number, lost his application and claimed to be on stress leave after the November 2016 Wellington earthquake.
To dispose of the appeal altogether and without hearing, Court of Appeal Justice Brendan Brown on 6 March issued a judgment declining to dispense with security and declining an extension of time. Brown J disputed the record by affirming for the first time that a security for costs notice had been sent out by the Registry upon receipt of the appeal in November before adding, “In my view, the appeal brought by the appellant is not reasonably arguable. The Justices of the Supreme Court should not have been cited as respondents… The appellant was aware of that as a consequence of (an earlier ruling to remove Supreme Court judges in similar circumstances). An award of costs on the application for removal of the Justices of the Supreme Court as second respondents was understandable and appropriate.”
Brown J’s judgment did properly name the Supreme Court justices as second respondents.
When one reads the application to the Supreme Court it is difficult not to consider whether any law is enforceable against NZ judges. Section 9 of the Judicature Amendment Act required them to be named, section 10 provided them an informal mechanism to have a lower court colleague remove them, and costs in their favour is customarily reserved for those intrepid souls who oppose their will – which Rabson had not.
If the Registrar succeeds in keeping the Supreme Court judges from being properly named in this appeal against a High Court order obtained on their instructions and in their favour, one legal dilemma becomes whether any costs order can be considered lawful (as 400 years have defined it) where the recipients are exempt from appeal or court standing. Yet the greater injustice may likely be that the legal and factual issues are concealed from public view. The High Court and now the Court of Appeal have issued unreasoned findings that costs orders which defy statutory requirements are “appropriate” when Supreme Court judges are the benefactors of this Orwellian view.
The stain on the the legal fabric of New Zealand resulting from the Supreme Court Registrar hiding such legal exemptions by judges on New Zealand’s highest court must give every law-respecting citizen concern as to what other judicial actions are being hidden, particular in light of this Court’s functus officio decree in Greer v Smith which prohibits public access to the Court record where any one judge objects.