[1] This is an application for special leave to appeal a decision of Chisholm J delivered in the High Court at Christchurch on 20 May 2005. The Judge refused leave pursuant to r 716 of the High Court Rules for Mr Machirus to adduce further evidence in support of his appeal to the High Court against a decision of the Taxation Review Authority (Authority). Mr Machirus wished to adduce evidence from three witnesses, at least one of whom had given evidence before the Authority.
[2] In considering the application the Judge noted that Mr Machirus’s prime objective in seeking to adduce further evidence appeared to be to bolster his allegation that there had been breaches of the New Zealand Bill of Rights Act. The Commissioner, on the other hand, took the view that Mr Machirus was seeking to embark on a fishing exercise.
[3] The Judge was persuaded that there should be an affidavit filed by a police officer confirming that all business documents seized by the police relating to Mr Machirus, as far as the police were aware, had been handed to IRD.
[4] That requirement was met within the Judge’s timeframe and, therefore, the application was dismissed.
[5] On 27 June 2005 Chisholm J refused to grant leave to appeal to this Court against his decision.

Discussion

[6] The issue which arises on this application for leave to appeal is the question of jurisdiction.
[7] Ms Deligiannis noted that under s 28 of the Taxation Review Authorities Act 1994 a decision of the High Court on any case on appeal under s 26 of that Act can be appealed to the Court of Appeal. The right of appeal, however, is restricted to a final determination made by the High Court and does not confer the right of appeal on interlocutory matters: M J Wetherill Company Ltd & Ors v Taxation Review Authority & Anor (2004) 21 NZTC 18, 924 at [60] (CA).
[8] Mr Machirus, who represented himself, had apparently received legal advice about his written submissions but on this point was unable to provide oral assistance. His refrain was that there had been a breach of the Bill of Rights and there must be a right of appeal. As explained at the hearing, this Court is a creature of statute and its jurisdiction is entirely statutory.
[9] The only other possible alternative source of jurisdiction would have been under s 66 of the Judicature Act 1908. This section provides this Court with a limited power to hear appeals from any “judgment, decree or order”. A ruling refusing to admit evidence is not within that categorisation: Murphy v Murphy [1989] 1 NZLR 204 at 206 (CA). In Association of Dispensing Opticians NZ Inc v Opticians Board [2000] 1 NZLR 158 at [36] this Court drew a distinction between rulings made in the course of a hearing or proceedings which are not susceptible to appeal and rulings that have some substantive effect on rights and liabilities in issue which are subject to appeal.
[10] Even if a jurisdictional path could have been identified, this is not a situation in which leave to appeal would have been granted.
[11] When the Judge made his decision he noted at [15]:

Rule 716 of the High Court Rules relevantly provides:

“(2) ... a party to an appeal may adduce further evidence only with the leave of the Court.

(3) The Court may grant leave only if there are special reasons for hearing the evidence, for example, if the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.

Leave will only be granted sparingly. In Telecom Corporation of New Zealand Limited v Commerce Commission [1991] 2 NZLR 557 (CA) the Court of Appeal warned that in exercising these powers the Court must be alert to the danger of allowing what the legislature intended to be a genuine appeal against the decision of an expert body being transformed into a new trial.

[12] The situation which the Judge was dealing with was circumscribed and nothing has been advanced which would suggest that this Court should intervene further in the matter.

Result

[13] Leave to appeal is accordingly refused as there is no jurisdiction in this Court.

Solicitors:
Crown Law Office, Wellington

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