Russell v Taxation Review Authority CA188/02 [2003] NZCA 352; (2003) 21 NZTC 18,309 (16 October 2003)

Last Updated: 29 November 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA188/02

BETWEEN J G RUSSELL AND ORS
Applicants

AND TAXATION REVIEW AUTHORITY
First Respondent

AND COMMISSIONER OF INLAND REVENUE
Second Respondent

Hearing: 13 October 2003 Coram: Gault P
Panckhurst J William Young J

Appearances: F M R Cooke for Applicants
A C Beck for Respondents Judgment: 16 October 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1] In a judgment delivered on 27 August 2003, this Court dismissed an appeal by the five applicants against an order of the High Court striking out the fourth cause of action in a proceeding for judicial review.

[2] Those five applicants now seek conditional leave to appeal to the Privy Counsel from the judgment of this Court. Although it was made clear in the judgment of this Court that the claim by one of those appellants, Managed Fashions Ltd, constituted an abuse of process, it was only during his oral submissions in reply that Mr Cooke (who has not previously had involvement in this and the related

J G RUSSELL AND ORS V TAXATION REVIEW AUTHORITY And Anor CA CA188/02 [16 October 2003]

matters) accepted that Managed Fashions Ltd should be excluded from any conditional leave granted.

[3] The cause of action alleged that the Commissioner by his conduct in objection proceedings before the Taxation Review Authority (TRA), had dishonestly and in breach of legal duties refused to identify and make available documents and witnesses considered material by the objectors, thereby preventing a fair hearing before the TRA.

[4] As was made clear in the judgment of this Court and in the written submissions filed in support of the present application, the focus of the claim, and the relief sought, is in respect of the conduct of the Commissioner. Relief in respect of the TRA although pleaded (albeit inadequately), stands to one side.

[5] O’Regan J, in the High Court, struck out this cause of action which had been allowed to remain in an earlier judgment of Fisher J ((2000) 19 NZTC 15,924), only because of the possibility of salvage by amendment. The judgment of Fisher J, which was primarily directed to other causes of action but in respect of the same general grievances of the appellants, was appealed to this Court. That appeal was dismissed, ((2001) 20 NZTC 17,418), as was a subsequent application for leave to appeal to the Privy Council ((2002) [2002] NZCA 44; 16 PRNZ 168). A petition to the Privy Council for special leave to appeal was unsuccessful.

[6] The present application is based upon r2(b) of the New Zealand (Appeals to the Privy Council) Order 1910. The Court may in its discretion grant leave if in its opinion the question involved in the appeal is one which by reason of its great general or public importance or otherwise ought to be submitted to Her Majesty in Council for decision.

[7] Broadly the questions said to justify leave are whether there are duties on the Commissioner, giving rise to relief by way of judicial review, in proceedings challenging his assessments before the TRA, to make available documents sought by the objector beyond those obtained by the usual discovery process, and to make available witnesses the objector considers are relevant to expose the motives and
processes of those involved in formulating the assessment in issue and other assessments made in respect of similar arrangements.

[8] In support of the application Mr Cooke acknowledged that there is no decision of the Commissioner in respect of which review is sought. But he submitted that, particularly in light of the obligations on the Commissioner under the New Zealand Bill of Rights Act 1990, the Privy Council might be persuaded to provide a remedy to ensure that decisions of the TRA are reached in accordance with procedures fair to the objector. In effect, the submissions in support of the application were those advanced in support of the appeal. It was said that they raise important issues especially since they involve allegations of dishonesty by the Commissioner and his staff in pursuing the alleged vendetta against Mr Russell.

[9] We are not convinced that there is any stronger case for leave in respect of the cause of action in issue than in respect of the other causes of action previously dealt with.

[10] The matters may be important to Mr Russell and his clients, but any wider general or public importance has been ventilated in the previous appeal to the Privy Council in respect of the Managed Fashions assessment. Further, the issues raised, to the extent that they are relevant to the correctness of the assessments, can be pursued in the uncompleted TRA proceedings or appeals from them.

[11] The application is dismissed.

[12] The Commissioner is entitled to costs which we fix at $3,000 together with disbursements approved, if necessary, by the Registrar.

Solicitors:

R J Warburton, Auckland, for Applicants Crown Law Office, Wellington