Faloon v Commissioner of Inland Revenue [2010] NZCA 393; (2010) 24 NZTC 24,456 (24 August 2010)

Last Updated: 13 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA680/2009

[2010] NZCA 393

BETWEEN CLARENCE JOHN FALOON
First Applicant

AND RUTH ENID FALOON
Second Applicant

AND THE COMMISSIONER OF INLAND REVENUE
Respondent

Hearing: 17 August 2010

Court: O'Regan P, Arnold and Ellen France JJ

Counsel: First applicant in person
J A L Oliver for Respondent

Judgment: 24 August 2010 at 11.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to apply for the allocation of a hearing date and file the case on appeal is dismissed.
2. The request for permission to seek two orders of certiorari is declined.

100. The applicants must pay costs to the respondent calculated on the same basis as for an application for leave to appeal on a band A basis, with usual disbursements.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] The applicants have appealed to this Court against a decision of Asher J[1] dismissing an application to recall an earlier decision of Asher J[2] refusing to recall a substantive judgment of Asher J[3] dismissing an application for an extension of time in which to reply to a statement of position issued by the respondent, the Commissioner of Inland Revenue. That application was brought pursuant to s 89M(11) of the Tax Administration Act 1994.
[2] The applicants filed their appeal against the second recall judgment on 29 October 2009. They did not appeal against the first recall judgment or the substantive decision.

Application for extension of time

[3] On 16 April 2010 the appellants filed an application seeking to extend the time within which to file the case on appeal and to apply for a fixture under r 43(3) of the Court of Appeal (Civil) Rules 2005 (the Rules). In the application, the reason for not taking these steps within the prescribed six month period was expressed as follows:

The reason for the application is that the 2 appellants wait a decision of a Judge made after reviewing the decision of the Registrar by letter 8 March received 11 March 2010. The decision requires the appellants to pay security for costs of $4,740 within 10 working days.

The application for review was filed 18 March 2010. To date no decision for the review has been received.

The applicants are not able at present to:

Give security for costs,

Apply for a hearing date,

File the Case on Appeal.

[4] In making his oral submissions to the Court, Mr Faloon added a new reason for not having filed the case on appeal and sought a fixture date: he said that he had been ill for some months in the period between August 2009 and April 2010, and this had prevented him from undertaking those steps.
[5] The position with the application for waiver of security of costs has been resolved since the application under r 43(3) was filed. The application for review of the Registrar’s decision declining to waive payment of security for costs was dealt with by Arnold J. He issued a judgment on 31 May 2010 dismissing the application.[4] The applicants then sought the recall or reopening of that judgment on the basis that Arnold J had not given sufficient factual background to his decision as outlined in the affidavits which were filed in support of it. That application was declined.[5]
[6] Just prior to the hearing of the present application, the applicants paid the amount of security for costs.

Commissioner’s position

[7] The Commissioner opposed the present application. He accepted that an extension of time may have been appropriate pending a decision on the review of security for costs, but that once that matter was resolved there was no continuing reason to grant an extension. Counsel for the Commissioner, Mr Oliver, argued that:

(a) The proposed appeal is devoid of merit because the circumstances in the High Court did not fall within the guidelines for recall of a judgment set out by this Court in Erwood v Maxted.[6]

(b) The proposed appeal purports to be against a decision of Asher J declining to recall an earlier decision, declining to recall a substantive decision;

(c) This is another attempt to re-litigate matters already decided adversely to the applicants and interests associated with them.

Our evaluation

[8] The present appeal is a continuation of a long line of cases in which the applicants have sought to re-litigate their ongoing dispute with the Crown and other parties. The resort to the tactic of multiple applications for recall is concerning, and as Mr Oliver pointed out such applications which merely seek to re-litigate matters which have already been considered or to challenge substantive findings of fact or law should not be entertained. This Court made that clear in Erwood v Maxted. We do not see any prospect of the appeal succeeding, and even if it did, it would affect only the judgment under appeal, which dealt only with the application to recall the judgment refusing recall of the substantive judgment. There is no appeal before the Court against the substantive judgment, and the proposed appeal would not put in issue the matters dealt with in the substantive judgment. In those circumstances we see it as a pointless exercise.
[9] An extension of time under r 43(2) is essentially an indulgence, and we see no reason for the Court to grant such an indulgence to the applicants so that they can pursue an appeal of this nature.[7]

Certiorari applications

[10] Mr Faloon wrote to the Court on 2 August 2010 seeking permission to apply for two orders of “certiorari”, one relating to four titles to land and one relating to seven patents. It is unclear to us what these applications would entail but in any event this Court does not have an originating jurisdiction and we therefore decline permission to apply for such orders.

Result

[11] We dismiss the application for an extension of time to apply for the allocation of a hearing date and file the case on appeal. The applicants’ appeal is therefore to be treated as abandoned under r 43(1) of the Rules.
[12] We award costs to the respondent calculated on the same basis as for an application for leave to appeal on a band A basis, with usual disbursements.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Faloon v Commissioner of Inland Revenue HC Tauranga CIV-2009-470-319, 12 October 2009.
[2] Faloon v Commissioner of Inland Revenue HC Tauranga CIV-2009-470-319, 9 September 2009.
[3] Faloon v Commissioner of Inland Revenue HC Tauranga CIV-2009-470-319, 12 August 2009.
[4] Faloon v Commissioner of Inland Revenue [2010] NZCA 223.
[5] Faloon v Commissioner of Inland Revenue [2010] NZCA 242.
[6] Erwood v Maxted [2010] NZCA 93 at [13]- [14].
[7] Scenic Developments Ltd v Kelmarna Properties Ltd [2004] NZCA 271; (2004) 17 PRNZ 489 (CA) at [29].