Tamihere v Commissioner of Inland Revenue [2017] NZHC 3012 (6 December 2017)

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UNDER THE	Judicature Amendment Act 1972
BETWEEN	ROBIN NOEMA HUGHES TAMIHERE Applicant
AND	COMMISSIONER OF INLAND REVENUE First Respondent
AND	ATTORNEY-GENERAL Second Respondent
AND	THE DISTRICT COURT AT MANUKAU Third Respondent

Hearing:	17 July 2017
Appearances:	Applicant in person S Leslie for First Respondent
_Judgment:	_{6 December 2017}

This judgment was delivered by me on 6 December 2017 at 11 am pursuant to r 11.5 of the High Court Rules.

[1] This is an interlocutory application by the Commissioner of Inland Revenue to strike out Mr Tamihere’s statement of claim against the first respondent. The Commissioner’s application is made on the grounds that the statement of claim discloses no reasonably arguable cause of action; the statement of claim is frivolous, vexatious and an abuse of court processes; Mr Tamihere has no standing to bring proceedings on behalf of himself; and Mr Tamihere has no standing to bring any proceeding in relation to or on behalf of Rags 2 Go Ltd. Mr Tamihere opposes strike-out – although no formal opposition was filed. Mr Tamihere filed a memorandum in which he purported to seek a strike-out of the Commissioner’s strike-out application.

[2] For the reasons I shall outline, I consider that Mr Tamihere’s claim discloses no reasonably arguable cause of action and is an abuse of process. There is a rather extensive background of proceedings leading to Mr Tamihere’s present claim as detailed in his Third Amended Statement of Claim dated 25 April 2017, and to explain my reasons for concluding that the proceeding must be struck out, it is first necessary to review that background.

[3] Mr Tamihere’s claim and affidavits do not themselves clearly set out the background facts which give rise to his claim. Ms Julia Snelson, who was the Inland Revenue solicitor assigned to oversee the Commissioner’s previous litigation with Mr Tamihere, has sworn an affidavit which does provide the essential background and the following summary comes largely from Ms Snelson’s affidavit and the supporting documents annexed as exhibits. Ms Snelson explains that the company “Rags 2 Go Ltd” (Rags to Go) was incorporated in 1999 as Ragtag Cleaning Supplies Ltd. Mr Tamihere was the sole director. In 2007 the company changed its name to “Rags 2 Go Ltd”.

[4] It appears that, notwithstanding the incorporation of the company to operate the business, Mr Tamihere had for a time also operated as a sole trader. Although the exact period is unclear, Ms Snelson refers to actions taken by Mr Tamihere as a sole trader in the periods ending 31 December 2004 through to 30 November 2007.

[5] Rags 2 Go was placed into liquidation by an order of Associate Judge Bell on

24 June 2011. The order for liquidation was made on the application of the Commissioner for unpaid GST and PAYE. Rags 2 Go was removed from the register on 17 June 2014. Ms Snelson is not aware of any subsequent application seeking to have Rags 2 Go restored to the register.

[6] While operating as a sole trader, Mr Tamihere, either himself or through a tax agent on his behalf, filed self-assessed GST returns. PAYE deductions were assessed by the IRD as owing based on Mr Tamihere’s Employer Monthly Schedules. These GST and PAYE taxes were not paid by their due dates. Late payment penalties and interest accrued. Mr Tamihere did not engage in the statutory procedures under Part

4A and Part 8A of the Tax Administration Act 1994 to dispute or challenge the IRD

[7] On 20 April 2012, the Commissioner served a notice of claim on Mr Tamihere in relation to the unpaid tax debts. Mr Tamihere filed a notice of response and a counterclaim against the first respondent. On 29 August 2012, Judge Hubble in the District Court at Manukau struck out the applicant’s response and counter-claim, and entered judgment for the Commissioner against Mr Tamihere for the sum of

(b) That the person named on his birth certificate is entirely different from himself, the flesh and blood person.

(d) That he has rights under the Treaty of Waitangi Act [that] have been ignored.

(f) The proceedings are unconstitutional and such other matters including the following:

(g) As a Freeman on the Land here in NZ I am not a member of the NZ Government controlled society. I am a member of my own society called “Robin’s Society”. I am the only member of my “Robin’s Society” and set the rules (Oh you like to call them laws). I call these rules Robin’s Laws. Robin’s Society lives under and adheres to the common law. Both the defence and the counterclaim are based on such matters, (inaudible) the law, pursuant to s.109 of the Tax Administration Act 1944 (“TAA”). The District Court does not have jurisdiction to hear and determine a tax dispute in relation to the assessments, penalties and interest that have been imposed. “

[9] The Judge also noted that Mr Tamihere made a claim that he was acting as a cestui-qui trustee and the Commissioner was pursuing the wrong person.

A further argument developed by Mr Tamihere was that the Inland Revenue owed him money because he had given them his “bond” and this created legal tender to cover all of his debts and legal obligations to the tax department. He claims that giving his “bond” for some six times over that claimed by the Inland Revenue they therefore owed him money.

[11] Judge Hubble noted that there is no right for a taxpayer to challenge late penalties or interest under the Tax Administration Act. Further, the Judge noted that s

(a) no disputable decision may be disputed in a court or in any proceedings on any ground whatsoever; and

(b) every disputable decision and, where relevant, all of its particulars are deemed to be, and are to be taken as being, correct in all respects.

[12] The Judge referred to decisions of the Supreme Court and High Court confirming that the District Court does not have jurisdiction to consider the matter.³

The Judge stated that “the claim by the Commissioner is now indisputable and this Court has no powers to take any further steps in any event”.⁴Accordingly, Judge Hubble granted the Commissioner’s application to strike out both the defence and the counter-claim and awarded the Commissioner judgment for the full amount of its claim together with costs and disbursements on a scale 2B basis.

[13] On 26 September 2012, the Commissioner received from Mr Tamihere a document headed “Notice of appeal In the Court of Appeal of New Zealand”. Farzana Nizam of Meredith Connell solicitors, who had acted for the Commissioner in the civil proceeding against Mr Tamihere, wrote to Mr Tamihere on 16 October

2012 advising that his appeal was out of time, queried whether the appeal had been filed in the High Court, and noted that there was a presumption that the appellant would be required to provide security for costs. Ms Nizam advised Mr Tamihere to take urgent legal advice.

[14] In April 2013 Mr Tamihere filed an application in the High Court seeking leave to appeal Judge Hubble’s decision out of time on the basis that the delay in filing was due to his being a litigant in person. The grounds on which Mr Tamihere’s appeal was based were:

[1] The APPLICANT, bases his grounds of APPEAL, on the FACT, Judge Hubble stated on the RECORD, at page [thirteen] (13) “Well no”. This answer was to my question and I quote – “Have you already claimed jurisdiction in this Court” – unquote. However, as per my affidavit, the transcript has been ultered. [sic]

[2] I stated on the RECORD I was the BENEFICIARY of my CESTUI QUE VIE TRUST. I ask the High Court, how is it that the Beneficiary was found guilty?.

³At [5]; Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012]

2 NZLR 153; and Johnson v Commissioner of Inland Revenue HC Auckland M1330/01, 8

[4] I stated on the RECORD that the Judge was ROBIN NOEMA HUGHES TAMIHERE, and that the JDUGE was the TRUSTEE called ROBIN NOEMA HUGHES TAMIHERE.

[5] I COLLAPSED the CONSTRUCTIVE TRUST, (which effectively nullified the Court Hearing) so I ask, under what Court Rule, does a Judge have the Right to proceed on this the case, and make a determination in the Courts [sic] favour.

[7] Has Judge Hubble not injured my live, living warm blooded human being, and serious relief in the form of compensation, NOW not due and payable to the APPLICANT.

[15] Ellis J heard the application and observed that the Court is generally minded to be generous to unrepresented litigants who may have misunderstood technical or procedural requirements, saying:⁵

But in the present case any leniency that I might wish to accord to Mr Tamihere cannot overwhelm the difficulties that are posed by the nature and tenor of the appeal itself. While I do not for one minute doubt the sincerity of Mr Tamihere's position it is one that is simply untenable.

As I think he now recognises, “freeman” arguments that assert that a person such is he is not a citizen or not a taxpayer — whether that contention is said to be derived from the 1835 Declaration of Independence, the Treaty of Waitangi, the Bible or from anything else — have consistently been rejected by the Courts. And of course, there is also the fact that any PAYE that has been retained by Mr Tamihere is not his money at all; he holds it on trust and on behalf of others, who are certainly taxpayers.

With all due respect to Mr Tamihere the thinking which appears to underlie his position in this respect is not thinking that the law recognises. An appeal that is based on it therefore has no prospects of success.

⁵Tamihere v Commissioner of Inland Revenue [2013] NZHC 1651, (2013) 26 NZTC 21-021 at

Lastly, Mr Tamihere's criticism of the fact that no witnesses were called by the Commissioner in the District Court also involves a misunderstanding of the nature of the claim against him. As a matter of law the assessments speak for themselves; their correctness may not be disputed and are sufficient to establish the debt. No further evidence (other than, presumably, an affidavit producing the assessments) is required.

[19] On 1 August 2013, the applicant was adjudicated bankrupt by Associate Judge Sargisson on the application of the Commissioner.⁹Associate Judge Sargisson noted the jurisdictional requirements for an order of adjudication under s 13 of the Insolvency Act 2006. The Associate Judge considered an application by Mr Tamihere for an adjournment on the basis of his intention to file an application for special leave to appeal the judgment on which the bankruptcy proceeding was based, saying:¹⁰

If he is successful in that appeal, it may be open to him to apply under s 309 to have the order of adjudication annulled. Mr Tamihere also relies on a tax credit which he says may be sufficient to cancel the amount of the judgment debt. A difficulty he faces with that argument, is that he has had the opportunity under the Tax Administration Act 1994 to challenge the assessments on which the judgment debt is based and under s 109, the assessments are now deemed correct. It is not therefore open to Mr Tamihere to challenge them in this proceeding.

[20] On 2 August 2013 Mr Tamihere filed an application seeking a stay of the bankruptcy order. Mr Tamihere stated that he had secured the services of a tax agent who had reviewed his history of tax returns for accuracy and who had claimed that Mr Tamihere’s previous accountant had done a very poor job. He said that there were numerous tax credits due to him which would clear the debt. Mr Tamihere claimed that his access to his records with the Inland Revenue had been blocked. Mr Tamihere also claimed:

The applicant is a member of the Diplomatic staff of JOHN MURRAY MONGA (Rua) the Diplomatic of Atooi. Polynesian Kingdom of Atooi (D012819650128).

[21] Associate Judge Christiansen declined this application on 6 August 2013.¹¹

The Associate Judge noted that the affidavit handed up by Mr Tamihere concerned matters that had already been raised by him in argument before the other Judges, and stated that it was not appropriate to reconsider those matters. Associate Judge Christiansen stated:¹²

It is clear he wants to revisit the Commissioner’s assessment of his tax liability – in particular with respect to the component comprising penalties and interest added to the core debt. He believes also that there are tax credits due to him which will also impact on the calculation of what he says is the correct sum owing by him.

[22] The Associate Judge considered that no substantial miscarriage would occur by refusing the stay application, and noted that Mr Tamihere had already had access to the review processes which he claimed he was being denied.¹³

[23] On 13 August 2013, Mr Tamihere filed an “interlocutory application on notice to dispute the validity of and strike out Associate Judge Christiansen’s judgment”. In this application he alleged that Associate Judge Christiansen lacked jurisdiction. Mr Tamihere also claimed that Associate Judge Christiansen exceeded his judicial oath when he failed to address evidence of fraud by the prosecutor and had breached his rights and various treaties. Mr Tamihere also raised what is generally referred to as a “sovereignty argument” – arguing that the New Zealand government has no authority to govern in New Zealand, claimed that Inland Revenue is “registered and domiciled in a foreign jurisdiction”, that their “Corporate Charters” do not mention “enslaving the citizens of New Zealand”, and that all corporations are illegal. Associate Judge Christiansen issued a minute stating that if the purpose of this memorandum was to seek that the Judge recall his judgment, he was not prepared to do so; and if the purpose was to seek an appeal – he should file

[24] Mr Tamihere then filed another application described as an “Interlocutory application on notice to null and void Associate Judge Sargisson’s judgment” on the

¹⁴Commissioner of Inland Revenue v Tamihere HC Auckland CIV-2013-404-1056, 10 September

basis that his tax agent had prepared and filed amended tax reports. Venning J considered this application and noted that the bankruptcy stands unless it is appealed or an application for annulment is made in proper form and on a proper basis, that Mr Tamihere was now out of time to appeal the decision, that the fact that Mr Tamihere had filed returns did not affect the status of the judgment, and that no grounds under s 209 of the Insolvency Act 2006 were made out on the material

[25] On 20 June 2014, Mr Tamihere applied to annul his bankruptcy. Associate Judge Doogue struck out the application on the ground that even if Mr Tamihere’s amended returns were correct, there would still remain substantial debts owing.¹⁶

[26] In 2012 the Commissioner brought charges against Mr Tamihere for offences relating to PAYE. There were 18 charges alleging that Mr Tamihere, as a sole trader, knowingly applied PAYE deductions for purposes other than making payments to the Commissioner, and 37 charges of aiding and abetting Rags 2 Go to knowingly apply PAYE deductions for purposes other than payments to the Commissioner. Judge McAuslan noted that Mr Tamihere had denied all charges and did not recognise the jurisdiction of the Court. Judge McAuslan outlined the elements of the offences, the evidence of the Commissioner’s witnesses, and the defences advanced by Mr Tamihere which were largely based on sovereignty arguments. In a reserved decision

[27] Ms Snelson’s evidence is that, prior to his sentencing, Mr Tamihere made late repayments and reduced the tax debt to $65,656.75 excluding penalties and interest. Mr Tamihere did not appear for sentencing on 8 April 2014. A warrant for his arrest was subsequently issued. He was arrested and granted bail to appear to be sentenced on 19 August 2014. Mr Tamihere challenged the jurisdiction of the Court to enter convictions against him. He was remanded in custody until sentencing. On 20

_{August 2014, Mr Tamihere brought an application for a writ of habeas
corpus in}

¹⁵Commissioner of Inland Revenue v Tamihere HC Auckland CIV-2013-404-1056, 13 September

¹⁷Commissioner of Inland Revenue v Tamihere DC Manukau CRI-2012-057-382, 8 January 2014.

relation to being remanded in custody. This was based on an assertion that the Court had no jurisdiction over Mr Tamihere. Andrews J dismissed the application.¹⁸Mr Tamihere was sentenced on 31 October 2014 to five months’ home detention. Counsel for the Commissioner informs the Court that there is no record of Mr Tamihere having exercised any right of appeal against his convictions or sentence.

[28] Mr Tamihere’s third “statement of claim” dated 25 April 2017 lists as respondents the three original respondents, being the Commissioner of Inland Revenue, Mr Finlayson QC as Attorney-General, and the Manukau District Court. However in his third amended statement of claim he has also added as respondents; Ms Farzan Nizam (who was a Crown prosecutor) as fourth respondent; “Manukau District Court Registrar (John Doe)” as fifth respondent; Dame Patsy Reddy (Governor-General of New Zealand) sixth respondent, Una Jagose (Solicitor- General) seventh respondent, Judith Collins “Ex Minister of Justice”(eighth respondent); Bill English (Prime Minister) ninth respondent; Peter Dunne (“Ex Minister of Revenue in 2012”) tenth respondent, Julia Snelson (“solicitor for Inland Revenue Department”) eleventh respondent; and Amy Adams) “Ministry [sic] of Justice”, twelfth respondent.

[29] On 7 April 2017 Peters J granted the Manukau District Court leave to be excused from further participation in the proceedings and noted that it would abide the decision of the Court. On 27 April 2017 Woolford J removed the Attorney-General as the second respondent.

[30] Although Mr Tamihere has added the persons named as the fourth to twelfth respondents in the third amended statement of claim, there is no proof of service of the proceedings upon any of those persons. In the circumstances, Ms Leslie for the first respondent seeks an order that the 4^thto twelfth respondents be removed as

[31] Mr Tamihere’s statement of claim is exceedingly discursive and prolix. It contains extravagant allegations of fraud on the part of almost all those involved in the proceedings referred to above including the Commissioner, Judge Hubble, the prosecutor, the Court Registrar, the Crown witnesses and solicitor, and the Crown Law Office. He alleges official corruption, “systematic continuous State-Abuse” by and at the hands of the Commissioner, and numerous specified and unspecified human rights breaches. However, the statement of claim, despite making serious claims and allegations, fails to clearly specify the particulars and the factual basis for those claims. As far as I have been able to ascertain, Mr Tamihere’s specific complaints are that:

(b) No contract exists between Mr Tamihere and the Commissioner; (c) Mr Tamihere is in credit with Inland Revenue;

(d) The tax debts were inflated as Mr Tamihere, as a dealer in second-hand goods, was exempt from GST;

(f) The other government ministers and officials named as respondents are aware of the fraud perpetrated on Mr Tamihere and are therefore tainted or directly involved in the fraud;

(g) The prosecutor colluded with other government agents, acted as both a witness and a prosecutor and should have withdrawn the “charges” as there was no plaintiff, informant and no injured party;

(h) The Manukau District Court Registrar accepted non-compliant documents; failed “to handle the accounting and to settle the constructive trust and close the account”; is guilty of “appointing the

(i) Judge Hubble did not have “subject matter jurisdiction” as no sworn charging documents had been filed; did not ascertain whether the accused was competent to defend himself; had no jurisdiction as no informant or injured party appeared in Court; and altered the Court transcript

1. The quashing of Hubble J's judgment of the 29th August 2012 (order of certiorari) and the removal of all recorded records to the bankruptcy charges registered against applicant's name.

5. A Court document signed by the Judge that alludes to the quashing, acquittal and or reversal of all charges from CIV-2012-055-00100.

6. The CIR remove all adverse publicity that has sullied applicant's name and place a retraction notice on the internet in the public domain apologizing for the fraud that was perpetrated upon the applicant. (Notice is to be at the applicant's satisfaction). And placed for a minimum of 48 months.

7. An apology from the CIR placed on the front page of the NZ Herald Mondays [sic] Edition, one week after trial ends with a minimum size of two columns ten line (Must be to the satisfaction of applicant).

8. Compensation for the lifelong fraud to the value of the GST refund that was defrauded from the applicant over 16 years of $4 Million dollars for actual and punitive defamatory damages plus for every single breach of NZBORA 1990 and others ....

9. Compensation for loss of earnings both personal and business earnings, for both the applicant and applicant's partner Janine Edwards and the loss of business turnover and business stock, loss of customer base, and others ...

iii) Unlawfully levied charges includes every charge laid, as the Commissioner has no lawful right to prosecute Tax assessments in the District Court. As is stated by Hubble J in his Reserved Judgment and because applicant was in credit with IRD that exceeded IRD debt.

[33] Mr Tamihere also seeks “substantive form of relief such as compensation” for

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

[35] The principles that apply on an application for strike-out are well settled.¹⁹

(a) The application proceeds on the assumption that the pleaded facts are true. However, this does not extend to pleaded facts where there is plain evidence that they are unsupportable – “that is, entirely speculative and without foundation”.²⁰

(b) Before the Court may strike out the proceeding, the causes of action must be so clearly untenable that they cannot possibly succeed.

(c) The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has the requisite material.

(d) The fact that an application to strike out raises difficult questions of law and requires extensive argument does not exclude jurisdiction.

(e) Special caution is required where a claim involves a developing area of law, unless the tenability of a cause of action is not dependent upon evidence, but can be determined solely by reference to settled legal principles.²¹

[36] These principles apply to applications for strike-out of a judicial review claim.²²

_{statement of claim discloses no reasonably arguable cause of action. Ms
Leslie for}

¹⁹The following principles are from Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267-

268, unless otherwise noted. The principles from Attorney-General v Prince were approved by the Supreme Court in Carter Holt Harvey Ltd v Ministry of Education [2016] NZSC 95, [2017]

²⁰Commissioner of Inland Revenue v Michael Hill Finance (NZ) Ltd [2016] NZCA 276, [2016] 3

²¹Queenstown Lakes District Council v Charterhall Trustees Ltd [2009] NZCA 374, [2009] 3

²²Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR

the respondent submits that there is no jurisdiction to challenge bankruptcy and liquidation orders, no jurisdiction to challenge tax assessments, no jurisdiction to now challenge the criminal convictions in this civil proceeding, and the exceptions to the principle of finality of judgment do not apply.

[38] Ms Leslie submits that the bankruptcy and liquidation orders cannot be challenged in judicial review as they were made in the High Court. This Court is not subject to judicial review.²³

[39] Ms Leslie submits that, under s 109 of the Tax Administration Act 1994, other than in a challenge proceeding under Part 8A, no disputable decision may be disputed in a court or in any proceedings on any ground whatsoever, and every disputable decision, and all of its particulars where relevant, are deemed to be correct in all respects. The Supreme Court in Tannadyce Investments Ltd v Commissioner of Inland Revenue confirmed that taxpayers are not able to challenge disputable decisions by way of judicial review unless the taxpayer could not practically invoke

the relevant statutory procedure.²⁴Ms Leslie says that both the PAYE and GST were

disputable decisions under the Act but Mr Tamihere failed to take any steps under any of the relevant statutory provisions set out in the Act.

[40] Ms Leslie submits that, to the extent that Mr Tamihere wishes to challenge them, neither the imposition of interest nor penalties for late payment or filing can be challenged. She refers to:

(1) A taxpayer may not object to or challenge the imposition of interest payable under this Part.

(2) Subsection (1) does not limit a taxpayer’s right to object to or challenge the taxpayer’s liability to pay tax.

²³Accent Management Ltd v Attorney-General [2014] NZCA 351 (2014) 26 NZTC 21-087 at [29]–

²⁴Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2

(a) may challenge the penalty in the same way as a taxpayer may challenge the assessment of tax to which the penalty relates; and

(b) has the same rights and obligations, in relation to proceedings concerning the penalty, as a person has in relation to proceedings concerning the tax.

[41] In respect to Mr Tamihere’s criminal conviction and sentence, Ms Leslie submits that Mr Tamihere had the usual rights of appeal against his sentence and conviction but did not exercise those rights. She notes that he has already served his sentence. Further, she submits that even if a reviewable error could be identified, the power to review actions of the District Court in criminal proceedings is, in any event, exercised sparingly, citing Auckland District Court v Attorney-General.²⁵

[42] Ms Leslie also submits that, to the extent Mr Tamihere wishes to overturn the judgments based on fraud, there is no evidence of any kind to suggest any reasonable cause of action based on fraud. Rather, Mr Tamihere has made nothing but bare allegations of fraud many of which are simply ridiculous, and patently without any foundation whatsoever.

[43] Counsel further submits that Mr Tamihere has no standing to bring proceedings to challenge the decisions in question, either on his own behalf or on behalf of Rags 2 Go. Although the Commissioner has also addressed this point separately to the ground of “no reasonable cause of action”, I consider that this

_{argument also falls within that same proposition. Counsel for the
Commissioner}

submits that, under s 101 of the Insolvency Act 2006, all property including rights of action, vested with the Official Assignee upon Mr Tamihere’s bankruptcy adjudication. An affidavit from a member of staff of the Official Assignee states that the Assignee has not disclaimed the right to bring the proceeding under s 177 of the Insolvency Act, nor consented to bringing this proceeding, and explaining that the Official Assignee will seek to discontinue the proceeding if it is not struck out. In respect of Rags 2 Go, Ms Leslie notes that the company having been removed from the register, no longer exists. Even if it did, she argues, Mr Tamihere would have no standing as companies have no right of appearance in court other than through counsel.

[44] Ms Leslie submits that the statement of claim and the allegations therein are an abuse of the processes of the Court as it seeks to relitigate matters that have already been determined. Ms Leslie refers to the observation of Lord Bingham in Johnson v Gore Wood & Co and quoted by the Supreme Court in Z v Dental Complaints Assessment Committee:²⁶

As the Court of Appeal points out, the abuse of process doctrine is a broad one applicable in varied circumstances. Unlike res judicata and issue estoppel, it is not limited in its application to litigation between the same parties. Lord Bingham has said, in a case where a plaintiff sought to raise an issue that could have been dealt with in earlier litigation, that in deciding whether further proceedings are abusive a court makes:

“a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether in all the circumstances a party is misusing or abusing the process of the court.”

[45] Ms Leslie notes the steps that Mr Tamihere could or should have taken to dispute the various decisions through appeals (or in the case of the bankruptcy decision – through an application for annulment), and the instances in which Mr

_{Tamihere did not take advantage of those available, and the challenges
he has made.}

[46] Finally, Ms Leslie submitted that each statement of claim filed by Mr Tamihere (the current statement of claim is the third amended statement of claim) are properly characterised as being outrageous claims against all parties named, and the filing of the third amended statement of claim makes clear that Mr Tamihere is not capable of amending his pleadings to remove the scandalous allegations, even if there was any cause of action which might reasonably be pursued. She accordingly submits that the appropriate relief is an order to strike out the pleading in its entirety.

[47] Mr Tamihere’s opposition to strike out is largely a reiteration of the contents of his statement of claim and affidavit. However, to these contentions he adds allegations of fraud against counsel for the Commissioner.

[48] In his oral argument, Mr Tamihere submitted that the Commissioner was a fictitious plaintiff and that the strike out application is itself a fraud. He submits that all the cases brought against him were commenced with fraud, although he did not specify how other than saying that the contents of affidavits filed in the proceedings were false.

[49] Mr Tamihere challenged the determination of the core tax upon which the penalties were imposed, saying that he had mistakenly filed GST returns when he ought not to have, and that this had led to the determination of his tax liability. He said that all of the Commissioner’s assessments of his tax liability were wrong and had been inflated in an attempt to have him sentenced to imprisonment.

[50] Mr Tamihere referred to the hearing before Judge Hubble and was critical of the Judge for proceeding with the hearing when he had been unable to obtain or retain counsel to represent him. Mr Tamihere said that the Judge had allowed counsel for the Commissioner to introduce hearsay evidence. He was critical of the Judge for striking out his counterclaim and evidence. Mr Tamihere also criticised Judge Hubble in connection with the transcript of the evidence, claiming that the Judge had made a large number of amendments to the transcript following the hearing.

[51] Mr Tamihere raised a number of other issues which related to the conduct of the earlier proceedings and the allegedly incorrect calculation of the tax liability and penalties.

[52] As regards the fourth to twelfth respondents, he submits that they should all be retained as parties to the proceedings as they have “shown a willingness to assist in the fraud”.

[53] Mr Tamihere submits that he does have a reasonably arguable cause of action and he reiterates the claims made in his statement of claim.

[54] Mr Tamihere denies that his claim is a collateral attack on previous decisions

as, if this was the case, “[his] documents would have stated this, but they do not”.

[55] Despite the discursive nature of the pleadings as set out in the third amended statement of claim, I consider that Mr Tamihere’s application is primarily directed at Judge Hubble’s decision in which judgment was entered for the Commissioner totalling $195,278.12 together with costs and disbursements. However, throughout Mr Tamihere’s statement of claim and affidavit he also makes challenges to the decision resulting in his criminal convictions and to the decision whereby he was adjudicated bankrupt.

[56] In respect of the criminal charges, the only direct complaint in respect of those charges that I can discern (apart from the challenges to the tax debt which underpins those charges as well as the civil findings), is that the convictions amount to “double jeopardy” as the same “charges” were in the civil case and the criminal case. The New Zealand Bill of Rights Act 1990 s 26(2) provides that “[n]o one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.” Mr Tamihere has misunderstood the nature of the matter considered by Judge Hubble. That was a civil proceeding in which the Commissioner sought recovery of a debt. That proceeding did not result in the acquittal, conviction, or pardon of Mr Tamihere. The result of that proceeding was that Mr Tamihere was required to repay the debt to the Commissioner. It so happens

that Mr Tamihere’s actions in relation to the debt were also a criminal offence. An analogy would be where someone has driven carelessly or recklessly and crashed a car into a house. The driver could be charged and sentenced for careless driving in a criminal proceeding, and in a separate civil proceeding ordered to pay the cost of repair to the damaged house. Although both these proceedings stem from the same action (careless driving and crashing the car), there is no double jeopardy. Only the criminal proceeding results in the person being convicted and punished - the civil proceeding does not.

[57] For these reasons, I do not consider that Mr Tamihere has disclosed any grounds on which to challenge his convictions or sentence. Further, Mr Tamihere has not provided any argument as to why this Court should engage in a judicial review of a criminal proceeding – in which context judicial review is exercised only sparingly.

[58] Mr Tamihere challenges Judge Hubble’s decision on the grounds that no tax was owing by him and he was, in fact, in credit. This is a challenge to the tax payable, which is only challengeable through the statutory procedure – unless that procedure could not practically be invoked. Mr Tamihere has raised no factual basis to suggest that was the case here. The same applies to the bankruptcy proceeding. The bankruptcy cannot be challenged by judicial review for the additional reason that those orders were made by this Court which is not open to challenge in judicial review.

[59] Mr Tamihere also challenges the civil proceedings on the basis of various perceived procedural and jurisdictional errors. None of these in my view have any factual foundation or basis. Overall, Mr Tamihere’s claim is misconceived and is based upon serious allegations which are in turn founded on apparent misunderstandings of the legal process and the earlier proceedings brought against him. For example, Mr Tamihere challenges the civil judgment on the ground that no sworn charging documents were filed. This suggests he mistakenly believes that the civil case was based on a criminal charge against him.

[60] Mr Tamihere also makes claims of bias, corruption and fraud without providing any particulars or facts capable of supporting those claims. For example,

Mr Tamihere claims that Judge Hubble fraudulently altered the transcript of the hearing before him. I note the words of the Court of Appeal:²⁷

We rejected the appellants' claims of bias in the proceedings below. In particular, we took judicial notice of the fact that the National Transcription Service (NTS) performs transcription services for all statutory tribunals administered by the Ministry of Justice, and that there is no opportunity for a judicial officer to interfere with the recording and retention of transcripts in that process.

That was in reference to a tribunal but the same applies to courts. While there may be unintentional errors in the transcript, this does not support an allegation of fraud.

[61] Additionally, most, if not all, of Mr Tamihere’s claims have already been addressed and dismissed by the decisions of other Judges. I consider that Mr Tamihere’s present claim is yet a further attempt to relitigate matters already determined, and is an abuse of process. Mr Tamihere says that this claim cannot be a collateral attack simply because his documents do not say so. The Court must consider the substance of the claim not the way in which it is described and, as I have said, the substance of Mr Tamihere’s present claim is to challenge the earlier finding as to the liability of his and his former company Rags 2 Go for unpaid tax and all the subsequent judicial determinations that followed.

[62] I grant the Commissioner’s application to strike out the proceeding. It discloses no reasonably arguable cause of action in respect of any of the named parties. It is also an abuse of process. I award costs to the Commissioner on a 2B basis.

[63] In relation to the other respondents, the allegations made in the statement of claim are all dependent upon the validity of the claims made against the first respondent Commissioner, or are allegations made regarding the civil and criminal hearings in the District Court which, if to be raised at all, should have been

[64] Having reviewed and considered the allegations made in the statement of claim as against the other respondents, I consider that they are clearly without any foundation whatsoever. For example, the claims are expressed to be made upon the basis that as office holders, the respondents were responsible for the conduct of the staff engaged in dealing with Mr Tamihere’s tax related matters and the legal proceedings arising. There are no allegations made against them other than simply based on the positions they hold or held, and no allegations that do not fall away in circumstances where the claims against the first respondent are found to be without foundation.

[65] I also note that there is no proof of service to show that the proceedings have been served on the fourth to twelfth respondents. However, I nevertheless consider that there is no reasonably arguable cause of action maintainable against any of them, and the proceeding is an abuse of process, and consequently is appropriately struck out.

High Court of New Zealand Decisions

Tamihere v Commissioner of Inland Revenue [2017] NZHC 3012 (6 December 2017)