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Court of Appeal of New Zealand |
Last Updated: 26 January 2018
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For a Court ready (fee required) version please follow this link
IN THE COURT OF APPEAL OF NEW ZEALAND |
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CA564/2011
[2012] NZCA 411 |
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BETWEEN DAVID ANDREW TAUBER
First Appellant |
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AND LISA MARIE TAUBER
Second Appellant |
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AND PAUL NIGEL WEBB
Third Appellant |
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AND ROSEMARY WEBB
Fourth Appellant |
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AND MAREE ANNE BOCKETT
Fifth Appellant |
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AND SCORE TRUSTEES LIMITED
Sixth Appellant |
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AND WESTPARK MARINA LIMITED
Seventh Appellant |
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AND HONK BERTHS LIMITED
Eighth Appellant |
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AND HONK LAND TRUSTEES LIMITED AS TRUSTEE OF THE HONK LAND TRUST
Ninth Appellant |
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AND AIRPORT TRUSTEES LIMITED AS TRUSTEE OF HONK AIRPORT TRUST
Tenth Appellant |
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AND THE COMMISSIONER OF INLAND REVENUE
Respondent |
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Hearing: 23 July 2012
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Court: Stevens, Miller and Simon France JJ
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Counsel: M T Lennard for Appellants
P H Courtney and E J Norris for Respondent |
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Judgment: 7 September 2012 at 11.00 am
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Para No
The Commissioner seeks access to documents [1]
Some further background [4]
The statutory scheme [9]
Appropriateness of judicial
review [20]
Consideration of
the unredacted affidavit [23]
Was the Commissioner’s
reliance on s 16 powers reasonable? [26]
Interpretation of s 16(4) [27]
Interpretation of s 16C [41]
Obligation of candour and completeness [49]
Alleged errors and omissions
in affidavit [51]
Intention to search the whole of Ms Bockett’s dwelling [53]
Imputation credits [57]
Litigation before the Taxation Review Authority [60]
Withholding of information by Mr Webb [64]
Compliance with s 17 notices [67]
Nature of Mr Webb’s assets [70]
Overall evaluation [74]
The form of the
warrants [77]
Overall
conclusions – were the warrants reasonably required? [82]
Access warrants for private dwellings of Messrs Tauber and
Webb
and removal and retention of warrants [84]
Access warrant for private dwelling of Ms Bockett and
removal
and retention warrant [86]
Result [93]
The Commissioner seeks access to documents
[1] In March 2011 agents of the Commissioner of Inland Revenue, acting pursuant to warrants issued under ss 16(4) (the access warrants) and 16C(2) (the warrants to remove and retain documents) of the Tax Administration Act 1994 (the Act), entered six premises in Auckland seeking access to documents relevant to the Commissioner’s investigation into the tax affairs of the first and third appellants and associated entities. The appellants brought judicial review proceedings in the High Court challenging the issuing and execution of the warrants and seeking orders directing the Commissioner not to inspect the seized documents and to return them to the appellants. Venning J dismissed the application.[1] The appellants have appealed against that decision.
[2] The appellants contend that Venning J made three errors. First, in finding that it was not unreasonable for the Commissioner to have invoked his powers under s 16 of the Act. Second, in finding that the over-emphasis of some aspects of the material and under-emphasis of others in the affidavit put forward to support the application for the warrants was not material and could not possibly have affected the District Court Judge’s decision to issue the warrants. Third, in finding that the warrants were not invalid as being too widely drawn, general and lacking specificity.
[3] The appeal also gives rise to an ancillary point. This involves the ability of this Court to consider the full unredacted version of the affidavit filed in support of the applications for the access warrants and the warrants to remove and retain documents.
Some further background
[4] The first appellant, Mr Tauber, is an accountant. He controls a number of companies known collectively as the Honk entities. The third appellant, Mr Webb, is a shareholder and/or director of several of the Honk entities. The Commissioner commenced investigations into the tax affairs of Messrs Tauber and Webb in 2008. Those investigations centered on income suppression, claiming deductions to which there was no entitlement and tax avoidance. In the course of that investigation the Commissioner encountered problems in obtaining information. He considered that requests to provide information pursuant to s 17 of the Act had not been fully complied with or were not complied with in a timely manner. In response to those difficulties, the Commissioner decided that the most timely and effective way to obtain the information would be to use s 16 of the Act.
[5] An application for warrants pursuant to ss 16(4) and 16C(2) of the Act, together with a supporting affidavit and an accompanying memorandum of counsel, was filed in the District Court in Auckland on 9 March 2011. On the following day Judge Field issued four warrants to enter private dwellings and eight warrants to remove and retain documents from places to be accessed under s 16.
[6] A week later authorised officers acting on behalf of the Commissioner entered a number of sites in Auckland and removed a large volume of information considered to be necessary to the ongoing investigations. Six sites are relevant to this appeal. The first two were the private homes of Messrs Tauber and Webb. The third site was the registered address (as well as the home address) of the accountant for the Honk entities, Ms Bockett. These sites were entered pursuant to the access warrants issued under s 16(4). The fourth site was a boat shed located in Hobsonville. The fifth and sixth sites were business premises of the Honk entities.[2]
[7] The second appellant, Mrs Tauber, is the wife of Mr Tauber. Similarly the fourth appellant, Mrs Webb, is the wife of Mr Webb. Score Trustees Ltd (the sixth appellant) owns the boat shed, and Westpark Marina Ltd (the seventh appellant) operates the boat harbour at Hobsonville. Honk Berths Ltd (the eight appellant) is a company in Auckland. Honk Land Trustees Ltd (the ninth appellant) and Airport Trustees Ltd (the tenth appellant) are the trustees of Honk Land Trust and Honk Airport Trust respectively. Honk Land Trust and Honk Airport Trust are engaged in separate disputes with the Commissioner.
[8] On 8 April 2011 the appellants filed applications for judicial review, interim relief, and discovery seeking disclosure of the material placed before the District Court in support of the access and removal warrants. Interim relief was granted by consent and a redacted version of the affidavit supporting the application for the warrants, together with the application itself, was voluntarily made available to the appellants. Following the hearing in the High Court, the appellants failed to make out any grounds for review. As noted, the judicial review application was dismissed.
The statutory scheme
[9] The Act provides for a broad range of investigatory powers designed to counteract “taxpayer frailty”[3] and enable the Commissioner to seek out the information required to make an assessment of a taxpayer’s liabilities. The fact that such powers are available even before any issue of fact arises between the Commissioner and the taxpayer distinguishes the Act from other similar legislation. Alongside such powers, however, the Act provides for the protection of the public interest in privacy. Examples of such protection are found in the imposition of stringent secrecy obligations on the Commissioner and his officers,[4] the protection of privileged information[5] and the non-disclosure of tax advice.[6] Thus, viewed as a whole, the Act carefully seeks to balance the public interest in privacy against the public interest in the ascertaining of liability for tax.
[10] This case concerns the provisions of the Act dealing with the Commissioner’s powers to obtain information. Those provisions are found in Part 3 of the Act, which deals with information, record-keeping, and returns.
[11] The Commissioner’s powers to access premises to obtain information are provided for in s 16 of the Act. The Commissioner also has power, under s 16C, to remove documents from a place accessed under s 16 and to retain such documents for a full and complete inspection.
[12] Section 16(1) sets out the Commissioner’s general rights of access. It provides for the Commissioner (or an authorised officer) to have full and free access to all lands, buildings and places, and to all documents, for the purpose of inspecting any documents and any property, process, or matter which the Commissioner considers necessary or relevant for the purpose of collecting any tax or duty under any of the Inland Revenue Acts or for the purpose of carrying out any other function lawfully conferred on the Commissioner. This general power is limited by s 16(3), which provides that notwithstanding s 16(1), the Commissioner (or any authorised officer) shall not enter any private dwelling except with the consent of an occupier or pursuant to a warrant issued under s 16(4).
[13] The occupier of any land, building or place entered must provide all reasonable facilities and assistance for the effective exercise of the Commissioner’s powers under s 16. Moreover the occupier must answer all questions relating to the effective exercise of such powers orally or, if so required, in writing.[7]
[14] Under s 16(4) a judicial officer may issue to the Commissioner or an authorised officer a warrant to enter a private dwelling. The written application is made on oath. Section 16(4) provides:
A judicial officer who ... is satisfied that the exercise by the Commissioner or an authorised officer of his or her functions under this section requires physical access to a private dwelling may issue to the Commissioner or an authorised officer a warrant to enter that private dwelling.
[15] Section 16(5) sets out the specific requirements for such a warrant. Those requirements include being in a form prescribed by regulations made under the Act, specifying an authorised officer of the department, either by name or in general, who may act under the warrant, and specifying whether other persons may accompany the officer acting under the warrant. The access warrant will be valid for a period of one month from the date of its issue or such lesser period as the judicial officer considers appropriate. Finally the warrant must state its period of validity, or the date on which it expires.
[16] Where documents are accessed by the Commissioner under s 16, there is power in s 16B to remove and copy such documents. Any copies of the documents so removed must be made, and the documents returned, as soon as practicable.[8] It seems that this provision was intended to permit the Commissioner or an authorised officer to remove and copy documents where there are a manageable number of documents that are able to be copied and the original documents returned within a relatively short timeframe. The section does not contemplate removal and retention for later consideration and inspection.
[17] Section 16C[9] gives the Commissioner the power to remove documents from a place accessed under s 16 and retain them for a full and complete inspection if the Commissioner has either the consent of an occupier or a warrant issued under s 16C(2). A judicial officer may issue a warrant for the purpose of removing documents from a place and retaining them for a full and complete inspection where the judicial officer is satisfied that the exercise by the Commissioner or an authorised officer of his or her functions under s 16 may require removing documents from a place and retaining them for a full and complete inspection.[10]
[18] The Commissioner may also require that information be furnished to him. Such a request will usually be made in writing. Section 17 provides that every person, when so required, shall furnish in writing any information and produce for inspection any documents which the Commissioner considers necessary or relevant for the purposes of an investigation involving, or enforcement of, any of the Inland Revenue Acts or any purpose relating to the administration of any matter arising from any other function lawfully conferred on the Commissioner. If a person fails to provide information to the Commissioner as required by a written notice under s 17, the Commissioner may apply to the District Court under s 17A for an order requiring the person to produce the information for review.
[19] The Commissioner also has powers under s 19 to require any person to attend and give evidence before the Commissioner. Finally, under s 18 the Commissioner may apply in writing to the District Court for a judge of that Court to hold an inquiry for the purposes of obtaining any information with respect to the tax liability of any person.
Appropriateness of judicial review
[20] In Gill v Attorney-General this Court held that judicial review of the issue or exercise of a search warrant will not usually be appropriate.[11] That is because the most suitable remedy for any errors occurring in the process of obtaining and exercising a search warrant is the exclusion of wrongly seized evidence. Any such exclusion would normally occur within the context of the relevant trial process. However, the Court recognised that there were exceptions to that general rule:
[20] We have not overlooked the possibility that grounds may exist in appropriate cases to challenge a search warrant by judicial review proceedings. This Court has previously entertained such challenges by way of judicial review where the defect in the search warrant is of a fundamental nature, where the matter could be said to go to the jurisdiction of the issuing officer or where some other ground of true unlawfulness (such as want of jurisdiction) is established. ...
[21] A key issue in this case is the correct interpretation of ss 16(4) and 16C(2). The nature and scope of these provisions impacts directly on the powers of the Commissioner in such cases and the question of whether those powers have been lawfully exercised. They are also relevant to the approach to be taken by the judicial officer considering whether to issue the warrant concerned. Accordingly, this case falls within the recognised exceptions to the rule in Gill.
[22] In that context we consider first the correct interpretation s 16(4) and s 16C(2) of the Act before turning to consider whether those provisions have been correctly applied to the facts in this case.
Consideration of the unredacted affidavit
[23] The judicial review proceeding in the High Court was approached on the basis that the Commissioner considered that, in order to respond to the various challenges, it was not necessary for a copy of the unredacted affidavit in support of the application to be provided to the Court.[12] Venning J reserved his position on that point and indicated that he would, if necessary, call for an unredacted copy of the application.[13] The Judge did not require to view the full unredacted application.[14]
[24] At the hearing of the appeal we questioned counsel as to how it would be possible for us to deal with challenges to the decision of Judge Field to issue the warrants without having before us the same material (that is, the full unredacted form of the application) as was before the Judge. We observed that such a procedure was regularly adopted both in the lower courts and in this Court when dealing with challenges to the legality of search warrants issued, for example, under s 198 of the Summary Proceedings Act 1957.[15] There was no opposition from counsel for the parties to this procedure being adopted in this case. A copy of the full unredacted version of the application was made available to us. We agreed with counsel first to review the redacted portions to ensure that there was no material that had been improperly redacted.[16] Having done this, we are satisfied that there is no need for any of the redacted material to be made available to the appellants or to call for further submissions. While a couple of small portions of the redacted material might arguably have been wrongly masked, we do not consider that the material is relevant to the issues on appeal.
[25] We are also satisfied that it is proper for us to have access to, and consider, the full unredacted application. We do not regard the judgment of the High Court in Davis v Commissioner of Inland Revenue,[17] referred to us by counsel for the Commissioner, as providing a decisive basis for declining to read the whole of the application. That case concerned an application pursuant to the inherent jurisdiction of the Court to obtain a copy of a search warrant application or have a Judge review its content to determine whether it disclosed a sufficient and appropriate basis for the issue of the warrant. But when the request for access to the application was made there was no bona fide challenge to the lawfulness of the warrant advanced. The application was more in the nature of a “fishing request”.[18] That is not the case here.
Was the Commissioner’s reliance on s 16 powers reasonable?
[26] This question focuses on whether the exercise by the Commissioner of his powers to obtain information under s 16(1) of the Act was a proper one. We must consider whether the access warrants and the warrants to remove and retain documents were required to enable the Commissioner to exercise his functions. In the case of applications under both ss 16(4) and 16C the judicial officer must be satisfied that the Commissioner requires physical access to a private dwelling or requires the removal and retention of documents from their current location. The parties did not dispute that the right set out in s 21 of the New Zealand Bill of Rights Act 1990 (NZBOR Act) (the freedom from unreasonable search and seizure) applies to the provisions of ss 16(4) and 16C of the Act. The issue is how s 21 influences the interpretation of those sections.
Interpretation of s 16(4)
[27] In this context, the statutory framework relating to the Commissioner’s powers to obtain information in Part 3 of the Act is important. This issue was considered in Avowal Administrative Attorneys Ltd v District Court at North Shore.[19] Baragwanath J held:[20]
The s 16(4) warrant is not a warrant for search of the premises, for which [s 16(1)] gives authority, but is for access from which the s 16(1) search may follow. Section 16(4) does not establish a stand-alone code for access by the Commissioner to dwellings and information they contain; it forms part of the s 16(1) scheme with the added protection of judicial intervention.
[28] We are in agreement with Baragwanath J on this point. A warrant issued under s 16(4) is not a warrant to search premises for particular information or documents. Rather, it gives authority for access to enter a private dwelling. Once entry is made pursuant to the warrant the authorised officer(s) then has the powers under s 16(1) of the Act, which involve at all times having “full and free access to all lands, buildings, and places, and to all documents ... for the purpose of inspecting any documents”. In other words s 16(4) does not alone provide a full code for access to a private dwelling and the information it may contain. It is but a part of a broader statutory scheme to enable the Commissioner to obtain access to information, but with the added protection of the requirement of a warrant where the place is a private dwelling.
[29] In Avowal Baragwanath J also considered how s 21 of the NZBOR Act influenced the interpretation of s 16(4). He concluded that:
[95] The judge considering the application must be satisfied that there is reasonable basis for belief that entry into a private dwelling is required to enable the s 16(1) purposes to be carried out. So there must be a purpose of inspecting books and documents necessary or relevant to the collection of tax or the performance of other functions of the Commissioner. But it is to be emphasised that the application is made at an information-gathering stage; not after the Commissioner has established tax avoidance.
[96] The Judge will or should also be concerned with the reasonableness element and withhold authority if that is not established.
(Original emphasis.)
[30] These comments indicate that s 21 requires that s 16(4) is to be read subject to an overall test of reasonableness. While this point was not directly raised on appeal in Avowal, this Court indicated that it supported Baragwanath J’s conclusion:
[23] Given the overarching impact of s 21, the inquiry about the legality of the Commissioner’s exercise of the s 16 powers needs to focus on reasonableness in the circumstances.
(Emphasis added.)
[31] The appellants contend that Venning J erred in finding that in the circumstances of this case it was not unreasonable for the Commissioner to have invoked his powers under s 16, including the power of access to private dwellings under s 16(4). Mr Lennard’s submission focussed on the meaning of “requires” as used in s 16(4). He submitted that a search will not be “required” merely because the Commissioner wants to search a private dwelling or suspects that relevant documents will be found there. Instead, the search must be “necessary in all the circumstances”. He further submitted that it is unlikely a search will be “necessary” unless the Commissioner can show that the other avenues for obtaining information under the Act have been exhausted.
[32] Before us, the Commissioner emphasised that ascertaining the meaning of s 16(4) requires balancing the public interest in privacy and the public interest in the assessment and enforcement of liability for tax. In terms of the public interest Mrs Courtney emphasised that the Commissioner has a statutory duty “to collect over time the highest net revenue that is practicable within the law”[21] and have regard to “the importance of promoting compliance, especially voluntary compliance, by all taxpayers with the Inland Revenue Acts”.[22] As a law enforcement authority the Commissioner must act in maintenance of the law and in the interests of justice, which includes being able to complete investigations in a timely way and without obstruction.
[33] Therefore Mrs Courtney submitted that “requires” should be given a broad meaning, in line with the low standard required for a search under s 16(1). We understood this to be an argument that s 16(4) will be satisfied merely when the Judge is satisfied that a search is “required” in the sense that the search will further the Commissioner’s investigations in some nonnegligible way. When challenged on this point, counsel accepted that some element of materiality was required before a search could be said to be “required”. She suggested a number of factors that could be relevant to such an enquiry, including the nature of the search locations, the nature of the investigation, and other steps taken to date.
[34] Counsel for the appellants submitted that there was very little distance between the reading of s 16(4) proposed by the appellants and the view reached by counsel for the Commissioner during the course of the hearing. We agree. We consider that when viewed together these submissions point towards a correct interpretation of s 16(4). That interpretation can be stated as follows:
A judicial officer who ... is satisfied [in all the circumstances] that the exercise by the Commissioner or an authorised officer of his or her functions under this section [reasonably] requires physical access to a private dwelling may issue to the Commissioner or an authorised officer a warrant to enter that private dwelling.
[35] This interpretation is consistent with the NZBOR Act.[23] Section 21 of that Act states that everyone has the right to be secure against unreasonable search and seizure. We consider the interpretation of s 16(4) originally advanced by the Commissioner to be inconsistent with this right. That is because it would enable the Commissioner to enter a private dwelling in any case where entry could potentially further the Commissioner’s investigation in some way. This runs contrary to the long-established principle that individuals are entitled to a high expectation of privacy in relation to residential property.[24] By contrast, the interpretation set out above imparts the “reasonableness” element in s 21 directly into the meaning of s 16(4), so could not be said to be inconsistent with the s 21 right.
[36] A further factor supports this interpretation of s 16(4). Warrants under s 16(4) are issued in a form set out in the Tax Administration (Form of Warrant) Regulations 2003 (the Regulations). The required form is as follows:
Warrant to enter private dwelling
Section 16(4), Tax Administration Act 1994
(or To [full name], officer of the Inland Revenue Department authorised by the Commissioner of Inland Revenue under section 16 of the Tax Administration Act 1994 (you)
Dated at ............. this day of ............. 20...
[37] This requirement for the judicial officer to be satisfied on “reasonable grounds” is not set out in the text of s 16(4).[25] It is, however, entirely consistent with our conclusions on the meaning of s 16(4) as set out above and provides confidence that our conclusions on s 16(4) are aligned with Parliament’s intentions in creating this legislation.
[38] Finally, we note that our interpretation of s 16(4) is consistent with, and expands upon, the interpretation upheld by this Court in Avowal.
[39] Having concluded that a search will not be “required” for the purposes of s 16(4) unless it can be shown to be reasonably required in the circumstances, we now turn to consider what those “circumstances” might entail. The following matters are likely, amongst others, to be relevant when considering warrant applications under s 16(4):
- (a) the Commissioner’s “tax interest”; i.e the nature of the investigation;
- (b) what, if any, steps to obtain information have already been taken and with what results;
- (c) why the Commissioner considers it is appropriate to use s 16 powers;
- (d) the proposed search locations;
- (e) why relevant information is likely to be found in those locations;
- (f) the nature of the information likely to be found;
- (g) why other mechanisms are not suitable; and
- (h) whether there is any element of urgency.
[40] We do not accept the suggestion made by the appellants that a search of a private dwelling will not be reasonable unless the Commissioner can demonstrate that all other options available to him under the Act have been exhausted. Whether or not other options (such as those described at [18]–[19] above) have been pursued is one of the factors to be taken into consideration by the judicial officer when making an assessment of whether the access warrant is reasonably required. But there should be no absolute requirement that the Commissioner m[26]t exhaust all options.26 We consider that such an approach would be inconsistent with the scheme of the Act, which does not establish a “hierarchy” of investigatory powers. Moreover it does not arise from a contextual interpretation of s 16(4), even when the reasonableness overlay is included.
Interpretation of s 16C
[41] The power of the Commissioner to remove and retain documents for inspection is a more intrusive power than the power to remove and copy documents given under s 16B, for which no warrant is required. But, as we have seen, where removal and retention of documents is required for the purpose of a full and complete inspection the Commissioner needs either the consent of the occupier of the place accessed or a warrant.[27] Section 16C(2) provides for the issue of a warrant as follows:
(2) A judicial officer may issue, to the Commissioner or an authorised officer, a warrant for the purpose of removing documents from a place and retaining them for a full and complete inspection if, on written application made on oath, the judicial officer is satisfied that the exercise by the Commissioner or an authorised officer of his or her functions under section 16 may require removing documents from a place and retaining them for a full and complete inspection.
[42] Every warrant issued under s 16C(2) must meet the requirements of s 16(5) described at [15[28] above.28 The form of the warrant is prescribed by Schedule 2 of the Regulations. Clause 2 of the warrant, like the access warrant equivalent, provides that there are “reasonable grounds for believing” that the exercise of the Commissioner’s inspection functions under s 16 requires the removal of books or documents from a place. The wording in the warrant broadly mirrors the wording in s 16C(2) but with the addition of the existence of a belief on reasonable grounds.
[43] The submissions of counsel did not address the meaning of s 16C(2) in any detail. However, some brief observations are offered, given that we were told that it is common for the Commissioner to seek removal and retention warrants in conjunction with s 16(4) access warrants.
[44] Section 16C(2) requires the Commissioner to seek a warrant before removing and retaining documents regardless of the place from which the documents are to be removed. A warrant is required in the case of removal both from a private dwelling or commercial premises. This is because retaining documents is inherently more intrusive than simply taking copies under s 16B, especially given that documents so retained may be held “for so long as is necessary for a full and complete inspection”.[29] Therefore just as s 16(4) recognises that individuals are entitled to a high expectation of privacy in relation to their homes, s 16C(2) recognises that removing documents might, particularly in the case of a commercial enterprise, cause significant inconvenience and disruption to the owner of the document.
[45] That said, there is a material difference in the wording between s 16(4) and s 16C(2). In the latter case what the judicial officer must be satisfied about is that the exercise by the Commissioner of the s 16 functions of obtaining information “may require removing documents from a place”. Section 16(4) uses the expression “requires physical access to a private dwelling”.
[46] Although the privacy interest of a taxpayer under investigation in retention of documents may well be less than the interest in the privacy of a dwelling place, Parliament’s plain intention was that the former interest also be protected by requiring the Commissioner to obtain a warrant. While the nature of the interest is balanced by the statutory obligations in assessing and enforcing the Inland Revenue Acts, we see merit in applying a similar approach to warrant applications under s 16C(2) as to those in s 16(4). Hence, the qualifying phrase “in all the circumstances” should follow the word “satisfied” in s 16C(2). Similarly, reading “reasonably” before “may require” is also appropriate.
[47] If applications for an access warrant and a removal and retention warrant are made at the same time, the application will address matters such as those listed at [39] above. Additional factors supporting the need for removal and retention might include:
- (a) why the Commissioner considers removal and retention may be required; and
- (b) what is it about the investigation and/or the documents sought that may require retention for a longer period than contemplated by s 16B.
[48] Such an approach achieves consistency between the two types of warrant, as well as being an interpretation that complies with s 21 of the NZBOR Act. When the judicial officer is considering an application for a warrant under s 16C(2), the level of satisfaction to be met is that in all the circumstances there are reasonable grounds for believing that the exercise by the Commissioner of his functions may require removing documents.
Obligation of candour and completeness
[49] There was no dispute between the parties that when the Commissioner was applying for a warrant under either ss 16(4) or 16C(2), an obligation of candour and completeness applied to the content of the application. This flows from the ex parte nature of the application process. The content of the obligation is based on the expectation that the applicant for the warrant will make full and candid disclosure of all facts and circumstances as are relevant to whether the warrant should issue. Such a principle has been endorsed by this Court in the context of an application for a search warrant under the Commerce Act 1986.[30] Held to be apposite were the observations of this Court in relation to an application for a search warrant under s 198 of the Summary Proceedings Act in R v McColl:[31]
... the applicant should lay before the judicial officer all facts which could reasonably be regarded as relevant to the judicial officer’s task. An applicant should not present the judicial officer with a selective or edited version of the facts. There is an obligation on the applicant to be candid and to present the full picture to the judicial officer, not just the conclusion which the judicial officer is asked to draw, supported by so much of the factual background as the applicant chooses to disclose.
[50] We now consider the specific concerns raised by the appellants before giving our conclusions on the lawfulness of the warrant in the light of the principles described above.
Alleged errors and omissions in affidavit
[51] When the appellant argued the case in the High Court the Judge had before him only the redacted form of the affidavit filed in support of the application for the warrants considered by Judge Field. As discussed above,[32] we are now in the position where we can assess the appellants’ challenges in the light of the contents of the unredacted affidavit. However some of the appellants’ concerns can be addressed with reference only to the redacted affidavit. In this section we provide a short description of each challenge, together with an outline of the view of Venning J based on the material before him. Our evaluation then follows.
[52] The gist of the appellants’ submission under this head is that aspects of the information put before Judge Field by the Commissioner were erroneous. Some six concerns are identified in this category. The appellants submitted that the cumulative effect of the erroneous material is that the affidavit as a whole is misleading to a material degree and that renders the warrants obtained in reliance on the information invalid. We therefore discuss the six concerns.
Intention to search the whole of Ms Bockett’s dwelling
[53] The appellants contended that Judge Field ought to have been informed that the Commissioner intended to search all parts of Ms Bockett’s private dwelling and not just her home office.[33] Counsel submitted that, the fact that the entire house was searched is evidence that such a intention existed at the time when the application for the warrant was made.
[54] Counsel for the Commissioner submitted that the scope of any intended search did not need to be signalled. The submission to the contrary misunderstood the fact the s 16(4) warrant merely granted access to a private dwelling. If access were permitted following a successful warrant application the extent of the Commissioner’s general access rights was spelled out in s 16(1). Moreover documents and other information of the type sought can easily be stored in various parts of a private dwelling. This is illustrated by the fact that relevant information was found hidden in a ceiling cavity of Ms Bockett’s residence. As Venning J found,[34] Ms Bockett had not identified these documents at the outset.
[55] The Judge concluded that the failure to spell out in detail the proposed scope of the search at Ms Bockett’s private dwelling did not render the search and seizures unreasonable in terms of s 21 of NZBOR Act. Neither was the application deficient on this basis. We agree. It is not the purpose of an application for an access warrant to deal with what might or might not occur once entry to the private dwelling occurs. That process is governed by the provisions of s 16(1) and (2) of the Act. As we have seen, there are specific obligations on occupiers to provide all reasonable facilities and assistance and to answer all proper questions in relation to the exercise in a building or place of the Commissioner’s powers to obtain information. Not until an officer of the Commissioner enters a private dwelling, particularly where there is a home office, and makes enquiries of the occupier, will the location of documents and other information be known. If the occupier co-operates voluntarily and complies with the s 16(2) obligations, all relevant documents and information may be provided and no search will be required.
[56] We consider that there is no requirement in the context of an application for an access warrant for the Commissioner to address how any necessary search is to be carried out. It follows that this ground of challenge fails.
Imputation credits
[57] The appellants contended that the affidavit left the impression that Mr Tauber had been involved in, and lost, two disputes with the Commissioner relating to imputation credits. But this was not the full story. Rather, Mr Tauber had received incorrect advice from Inland Revenue and had incorrectly claimed imputation credits as a result. Later the Commissioner had recognised this and no penalties had been imposed. Hence the references to disallowed imputation credits was designed to paint a picture of default by Mr Tauber. The Commissioner submitted that the information regarding imputation credits was relevant as it provided background to that issue and the wider investigation.
[58] On this issue, Venning J held:[35]
... in my view Mr Lennard overstates the point. The correspondence discloses the Commissioner agreed not to impose shortfall penalties on Mr Tauber in relation to the imputation credits. This was against the background that the treatment of the imputation credits had given rise to an apparent tax shortfall. That was on its face, a discrepancy. It was resolved. In context, this aspect of the affidavit was not misleading. The important point is that the investigation into other issues was ongoing. The Judge was advised that while there may no longer have been any issues in relation to certain of the imputation credits and other expenses claimed there were still issues in relation to the balance which supported the investigation and the application for the access warrants. That was correct.
[59] We agree with the Judge’s reasoning. Moreover, in the light of the matters disclosed in the unredacted affidavit, this point (even if some further discussion about the imputation credits had been appropriate) would have made no material difference to the assessment of Judge Field. This ground of challenge also fails.
Litigation before the Taxation Review Authority
[60] The appellants submitted that the fact that two of the appellants, Honk Airport Trustees Ltd and Honk Land Trustees Ltd, were involved in cases before the Taxation Review Authority was not sufficiently spelled out in the affidavit. It is said that the Commissioner intended, once the warrants were issued, to search for and seize documents relating to these two cases which were already being litigated.
[61] The Commissioner denies this allegation and placed evidence before the High Court that steps were taken both in the planning process and during the search to identify and separate out any documents relating to these two cases. There was no evidence to suggest that the Commissioner’s intention changed between the swearing of the affidavit and the execution of the search.
[62] The Judge’s finding on this challenge was as follows:[36]
The fact that there were cases before the TRA was disclosed to the Judge. Ms Fleming identified in her affidavit that there were: “... two cases with the [TRA] for hearing”. There is no basis for the complaint of non-disclosure of the fact cases were before the TRA. The evidence does not support the submission the purpose of the search was to obtain information for the TRA hearing.
[63] We agree with the Judge’s conclusion. The appellants have not succeeded in showing that the Judge fell into error. This ground must also fail.
Withholding of information by Mr Webb
[64] This challenge relates to a statement in the affidavit that “Mr Webb [the third appellant] has advised the Commissioner in an interview that he deliberately hid assets from the Official Assignee”. The appellants submitted that the statement was misleading and did not provide a fair interpretation of what was said in the context of the interview.
[65] In the High Court, the Judge considered the relevant part of the transcript of the interview of Mr Webb.[37] We do not need to include the detail. Venning J held:
[82] The passage is somewhat ambiguous. At most from the Commissioner’s point of view it could be said that Mr Webb accepted that he had kept assets of a household nature to a value of $50,000 in the container and that he had not disclosed the fact to the Official Assignee when bankrupt. The bald statement that Mr Webb advised the Commissioner that he had deliberately hidden assets from the Official Assignee gives a more serious impression than that. However, even in the context of the redacted affidavit and the purpose and reason for the searches the point is not a material one. I accept Mrs Courtney’s submission that in making that statement Ms Fleming relied on the impression conveyed to her by the officer who had interviewed Mr Webb and that it was not made in bad faith.
[66] We agree with the Judge’s conclusions. The key point is whether this overstatement of the impact of the interview was material when viewed in the context of the whole application. Like the Judge, we do not think it was. In any event materiality needs to be assessed in the light of the broader context now available to us in the unredacted affidavit. The Commissioner’s position is even stronger when this material is taken into account. This ground of challenge also fails.
Compliance with s 17 notices
[67] This challenge arises from the fact that two formal notices under s 17 of the Act had been issued to Mr Webb. The appellants say that Mr Webb had complied with both requests (albeit late in each case) and had no knowledge that the Commissioner did not consider that there had been full compliance with the notices. The submission is that more information ought to have been provided in the affidavit about compliance with the notices including the ongoing discussions between the parties regarding the manner of Mr Webb’s compliance.
[68] The Judge rejected this claim holding:[38]
... the information in the affidavit is strictly correct. The affidavit records that Mr Webb had complied in part with the second notice. The important feature of that aspect of the information provided to the Judge is that the Commissioner had issued s 17 notices and he did not accept they had been satisfactorily complied with. The Judge was made aware that the Commissioner had tried other means to obtain the information, but that he did not consider the applicants had complied. That information supported the application for warrant. Ms Fleming was entitled to make that point in the affidavit.
[69] The appellant has not shown that the Judge’s conclusions were wrong. We consider that the information in the affidavit, even in its redacted form, was sufficient to meet the reasonableness standard we have outlined above.[39] This ground of challenge fails.
Nature of Mr Webb’s assets
[70] This challenge relates to the following statement in the affidavit about Mr Webb’s wealth:
Mr Webb has returned minimal income but appears to have built up a significant asset base ... . A media article has stated that Mr Webb’s net worth as at 20 October 2006 was $20,000,000”.
The appellants submit that the transcript of the interview with Mr Webb shows him consistently denying that he had substantial assets, specifically denying the accuracy of media reports and certain bank file notes that had been put to him. He is said to have referred instead to living largely off loans, signifying that he was in a negative asset position.
[71] The Judge rejected this challenge in relatively short order. He held that:[40]
... [this] matter was fairly outlined to the Judge. It is unlikely the Judge would have placed much, if any, weight on the reference to the media article (which was only referred to in passing). More significance might have been placed on the HSBC diary note that suggested Mr Webb had net worth of $40,360,000. It was unnecessary to record Mr Webb denied that.
[72] The appellant has not shown that the Judge’s conclusions were wrong. We consider that the information in the affidavit, even in its redacted form, was sufficient to meet the reasonableness standard we have outlined above.[41] This ground of challenge fails.
[73] We agree with the Judge’s assessment. The point has no merit and this ground of challenge fails.
Overall evaluation
[74] With respect to the overall impact of these errors and omissions, the appellants submitted that when considered against the totality of the redacted affidavit, almost half of the material put forward comprised challenged information.
[75] On the totality question the Judge held:[42]
The errors or failings which are contained in the affidavit, such as they are, are primarily in relation to emphasis. In the context of a lengthy affidavit (even in its redacted form) they are not material.
...
In the present situation, the over emphasis of some aspects of the material and under emphasis of others was not done in bad faith, was not material, and could not possibly have affected Judge Field’s decision to issue the access warrants under s 16(4) and the warrants under s 16C(2).
[76] We agree with the Judge’s conclusions. The mere fact of a challenge says nothing about its merit. We have found that none of these specific challenges arising from alleged errors or omissions can be sustained. Even if we were restricted to considering the redacted affidavit, none of such challenges would succeed. We reject the appellant’s submission that, stripped of such flawed material, the affidavit makes no case for justifying access to the private dwelling houses and the right to remove and retain documents.
The form of the warrants
[77] There are two parts to the appellant’s claims as to the form of the warrants. The first relates to whether the warrants met the requirements of s 16(5)(b) of the Act.[43] The second concerns whether the warrants were too widely drawn and lacking in specificity.
[78] As to the first point, s 16(5)(b) requires that the warrants must specify “an authorised officer of the Department, whether by name or in general, who may act under the warrant”. Here the warrants referred to “every officer of the Inland Revenue Department authorised by the Commissioner of Inland Revenue under s 16 of the Tax Administration Act 1994”. The appellants contended that this was too broad to meet the requirements of s 16(5)(b).
[79] During the course of argument Mr Lennard indicated that he did not press this point strenuously. He was right not to do so. Section 16(5)(b) only requires that the warrant issued specify a class of persons who may have physical access to a private dwelling under a warrant issued under s 16(4). A class comprising every officer authorised by the Commissioner plainly meets this test. There was no failure to meet this requirement.
[80] The second point concerned the degree of specificity in the warrant. Counsel for the appellants relied on cases such as Tranz Rail Ltd v Wellington District Court,[44] Gill v Attorney-General[45] and A Firm of Solicitors v District Court at Auckland[46] for the proposition that warrants must not be drawn too widely and must have as much specificity as the circumstances allow. The same submission was rejected by this Court in Avowal as follows:
[22] The access and inspection power under s 16(1) is expressed in broad terms. It is not analogous to the search and seizure power in provisions like s 198 of the Summary Proceedings Act 1957. That means that cases ruling against unspecific search warrants like A Firm of Solicitors and Tranz Rail Ltd v Wellington District Court are not directly on point. The circumstances in which tax investigations occur differ from criminal investigations and the Commissioner’s powers under s 16 are necessarily broad given the complexity that is often inherent in tax investigations. We see no need to read down the broad words of s 16.
[81] We see no reason to depart from the Court’s findings in Avowal on this point. This statutory code, dealing with a civil tax-recovery scheme, is quite different to those dealing with applications for warrants under the Commerce Act and the Serious Fraud Office Act 1990. The form of the two types of warrant are prescribed by the Regulations. We consider that the wording of s 16 of the Act and the statutory scheme is decisive. As we have seen, there is a material difference between the powers to access premises to obtain information under s 16(1) and the quite different legislative provisions underlying search warrants in the cases relied on by the appellants. An access warrant under s 16(4) is of an entirely different kind from a search warrant under the criminal law and in legislation such as the Commerce Act and the Serious Fraud Office Act. We observe that the warrants in this case were similar to those considered by this Court in Avowal. Those warrants were not expressed too broadly. Neither are those in the present case.[47] We are satisfied that the appellants cannot succeed in their challenges on either of the bases just discussed.
Overall conclusions – were the warrants reasonably required?
[82] Having dealt with, and rejected, these specific challenges, it remains to determine whether the application for the warrants met the test described above.[48] In so doing we have considered the full unredacted form of the affidavit filed in support.
[83] We have also given separate consideration to the application for the access warrants to the private dwellings of Messrs Tauber and Webb, as opposed to that of Ms Bockett.
Access warrants for private dwellings of Messrs Tauber and Webb and removal and retention warrants
[84] We are satisfied that the application by the Commissioner for the access warrants for the private dwellings of Messrs Tauber and Webb and the related removal and retention warrants under s16C were lawful and reasonable. Specifically we consider that the affidavit filed in support met the requirements of the tests in ss 16(4) and 16C(2) respectively. With respect to the access warrants we are satisfied that the affidavit demonstrated that it was reasonable in all the circumstances of the case for the Commissioner to seek the access warrants on the basis that such warrants were reasonably required. The detailed circumstances set out in the unredacted affidavit amply demonstrate that the matters identified in [39](a)–(h) were satisfied. For the reasons already given it was not necessary for the Commissioner to demonstrate that all other options available to him under the Act had been exhausted. The investigation had been ongoing since 2008. There had been extensive delays in making the information requested by the Commissioner available. The completeness of that information was, as far as the Commissioner was concerned, questionable. Time limits were running. We are satisfied that following the various requests made under s 17 of the Act it was appropriate and reasonable for the Commissioner to proceed to seek an access warrant so that the powers in s 16(1) could be exercised. It follows that it was in all the circumstances reasonable for the judicial officer considering the application to have granted the warrants.
[85] The same outcome applies in relation to the removal and retention warrants. It is clear from all the circumstances that there was likely to be a significant quantity of information and documentation. Given the complexity of the investigation, the number of persons and entities involved made it obvious that the Commissioner would require removal and retention of documents so that a full and complete inspection could be carried out. The application justified the grant of such warrants in the case of the private dwellings of Messrs Tauber and Webb.
Access warrant for private dwelling of Ms Bockett and removal and retention warrant
[86] We have considered the position of Ms Bockett separately out of deference to her status as a professional. Ms Bockett is a chartered accountant who, via her company MB Accountants Ltd, acted for a number of the Honk entities. She was specifically listed as the “agent” of three such companies for the purposes of s 17 requests made by the Commissioner. Two of those requests were not fully complied with.[49] We consider that this failure by the entities for whom Ms Bockett acted to respond fully to the s 17 notices is significant, especially given that Ms Bockett had both statutory and professional obligations to provide information and documents requested by the Commissioner.[50] Had Ms Bockett ensured full compliance with the s 17 notices, or given a reasonable explanation why she could not, then it is possible that it would not have been reasonable for the Commissioner to seek a warrant.
[87] A further issue concerns the sufficiency of the information provided on behalf of the Commisioner in the affidavit filed in support of the application for the warrants. The affidavit records that Ms Bockett provided accounting services for Honk Group Ltd; Honk Land Trust; Education Holdings Ltd; Honk Aviation Ltd; Honk Airport Trust; and Honk Events Ltd. It also records the registered address of MB Accountants Ltd and notes that this is the private residence of Ms Bockett.
[88] Having reviewed all the evidence, we are satisfied by a narrow margin that the affidavit filed in support of the warrants in the case of the private dwelling of Ms Bockett demonstrated that it was reasonable in all the circumstances of the case for the Commissioner to seek warrants under ss 16(4) and 16C(2). We place particular weight on the fact that the evidence points towards a pattern of action on the part of the Honk Entities and others that had the effect of obstructing the Commissioner’s investigations. Viewed against that background, we consider that the affidavit contained sufficient detail to support the issuing of warrants under ss 16(4) and 16C(2). We therefore find that the access warrant and the warrant for removal and retention in her case were lawful. The judicial officer was correct to conclude that the Commissioner required physical access or removal of documents under s 16C(2), thus justifying the issue of the warrants.
[89] Had we reached a different conclusion on this point it would have been necessary to consider the question of remedy. This was a judicial review application and whether or not relief is granted is a matter for the discretion of the Court.[51] In Air Nelson Ltd v Minister of Transport, this Court explained the nature of that discretion as follows:[52]
[59] Public law remedies are discretionary. In considering whether to exercise its discretion not to quash an unlawful decision or grant another remedy, the court can take into account the needs of good administration, any delay or other disentitling conduct of the claimant, the effect on third parties, the commercial community or industry, and the utility of granting a remedy.
[60] Nevertheless, there must be extremely strong reasons to decline to grant relief. ...
[61] In principle, the starting point is that where a claimant demonstrates that a public decision-maker has erred in the exercise of its power, the claimant is entitled to relief. The usual assumption is that where there is “substantial prejudice” to the claimant, a remedy should issue.
[90] This principle has recently been re-examined by this Court, albeit in a different context, in Rees v Firth. [53] The Court held:[54]
This Court has said that, although public law remedies are discretionary, there must be “extremely strong reasons” to decline to grant relief where a public decision-maker is shown to have erred in the exercise of his or her powers. That approach has been criticised as being insufficiently nuanced, although the Court seems to have had in mind situations where it could be shown that there was substantial prejudice to the claimant. In any event, given the discretionary nature of public law remedies, it may be that a more nuanced approach is necessary in the generality of cases.
[91] We agree with the observation made in Rees that Air Nelson is directed towards situations where the claimant has suffered “substantial prejudice”. We also support the suggestion that a more “nuanced” approach than that set out in Air Nelson is likely to be appropriate in many cases. We wish to record that, even if we had determined that the affidavit contained insufficient information to justify a warrant in relation to Ms Bockett, we are satisfied that no relief ought to have been granted. Had the matter been approached by the Commissioner by further notices under s 17 of the Act, Ms Bockett would have been required to make all relevant documents available to the Commissioner. There was no basis upon which provision of the documents could have been refused by her. On that basis the Commissioner would have obtained the documents in any event. Accordingly it could not have been said that Ms Bockett suffered any “substantial prejudice” as a result of the Commissioner’s decision. A similar conclusion would have been available in the case of the appellants and the client entities for whom Ms Bockett was acting. They could not have been said to have suffered any substantial prejudice either as a result of the Commissioner’s approach. The documents and information sought affecting them would have been required to be supplied following further requests under s 17 of the Act or through the application of other available processes under the Act.
[92] Furthermore, we consider that even if we had determined that there were a breach of the disclosure requirements in this case, that breach could only have been classified as slight. Such an error would have arisen in the context of a provision where the requirements for affidavits in support of an access warrant under s 16(4) or a removal warrant under s 16C had not previously been considered by the courts at appellate level.
Result
[93] All challenges to the warrants in the case of Messrs Tauber and Webb and the other appellants have failed. It follows that the appeal must be dismissed.
[94] As to costs, the appellants, jointly and severally, must pay the respondent one set of costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Holland & Holland,
Auckland for Appellants
Crown Law Office, Wellington for Respondent
[1] Tauber v Commissioner of Inland Revenue HC Auckland CIV-2011-404-2036, 12 August 2011 [High Court judgment].
[2] Warrants are not required where the access sought is for other than a private dwelling (ss 16(1) and 16(3) of the Tax Administration Act 1994 [the Act]), but in respect of those three sites the Commissioner sought warrants to remove and retain documents under s 16C.
[3] New Zealand Stock Exchange
v Commissioner of Inland Revenue [1990] 3 NZLR 333 (CA) at 337.
[4] Section 81.
[5] Section
20.
[6] Sections
20B–20G.
[7] Section 16(2): the
Commissioner may even require questions to be answered by statutory
declaration.
[8] Section
16B(2).
[9] Inserted into the Act
in December 2006.
[10] Section
16C(2): a written application on oath is
required.
[11] Gill v
Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433.
[12] This procedure had been
discussed at a case management conference before Duffy J. No steps were taken
at that stage to have the
Judge review the extent of the redacting put forward
by the Commissioner.
[13] High
Court judgment, above n 1, at
[5].
[14] At [71].
[15] As illustrated in McQuillan v R [2012] NZCA 120. On occasions, Judges have considered it appropriate (in order to preserve confidentiality) to appoint an amicus curiae to present submissions on behalf of the party making the challenge, after having viewed the full unredacted application: this procedure was followed by this Court in McKenzie v R [2012] NZCA 299.
[16] If any improper redaction
had occurred, the material would be made available to the appellants and both
parties would be given an
opportunity to make further
submissions.
[17] Davis v
Commissioner of Inland Revenue (2004) 21 NZTC 18,675
(HC).
[18] As discussed by this
Court in Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385
(CA).
[19] Avowal
Administrative Attorneys Ltd v District Court at North Shore [2010] 2 NZLR
794 (HC).
[20] At [97]. This point was
not directly considered on appeal: Avowal Administrative Attorneys Ltd v
District Court at North Shore [2010] NZCA 183, [2010] 3 NZLR
661.
[21] The Act, s
6A(3).
[22] Section
6A(3)(b).
[23] This approach to New Zealand Bill of Rights Act 1990 [NZBOR Act] analysis – first identifying alternative interpretations, making a judgment on the relative merits of those interpretations, and then testing that meaning for NZBOR Act compliance – is akin to the approach followed by this Court in Commerce Commission v Air New Zealand [2011] NZCA 64, [2011] 2 NZLR 194 and Television New Zealand Ltd v Solicitor-General [2008] NZCA 519, [2009] NZFLR 390; see also Paul Rishworth “Human Rights” [2012] NZ L Rev 321 at 332. We note that this methodology is also consistent with this Court’s decision in R v Laugalis (1993) 10 CRNZ 350 (CA), in which it was held that warrants under s 18(2) of the Misuse of Drugs Act 1975 were subject to an implied exception that a search without a warrant is only justified if a warrant cannot be obtained in time.
[24] See R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [113] citing R v McManamy (2002) 19 CRNZ 669 (CA).
[25] Regulations can be considered as an aid to the interpretation of a statute when they are contemporaneous with a statue and the statute is ambiguous: Interfreight Ltd v Police [1997] 3 NZLR 688 (CA) and Hanlon v Law Society [1981] AC 124 (HL). We note that the version of the warrant form used in this case (set out above) was not issued contemporaneously with the statute but instead was brought into force in 2003. However, the version of the warrant form that was issued contemporaneously with the Act also referred to “reasonable grounds for believing that the exercise by [the officer] of his or her inspection functions under s 16 of the Tax Administration Act 1994 [required] physical access”: see Tax Administration (Form of Warrant) Regulations 1995.
[26] A similar view was
expressed by the High Court in Avowal Administrative Attorneys Ltd v District
Court at North Shore, above n 19,
at [82].
[27] The Act, s
16C(1).
[28] Section 16C(3).
[29] Section 16C(6). The owner
of documents so removed is, however, entitled to obtain a copy at the premises
to which the documents
have been removed: s
16C(5).
[30] Tranz Rail Ltd v
Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780 (CA) at
[21].
[31] R v McColl
[1999] NZCA 131; (1999) 17 CRNZ 136 (CA) at
142–143.
[32] At [23]–[25].
[33] Citing Chief Executive,
Ministry of Fisheries v United Fisheries Limited [2010] NZCA 356, [2011]
NZAR 54 at [35], Descôteaux v Mierzwinski [1982] 1 SCR 860 at [60]
and Baron v Canada [1993] 1 SCR 416 at
437.
[34] At
[60].
[35] At
[77].
[36] At
[79].
[37] Set out at
[81].
[38] At
[83].
[39] At [34]–[40]
above.
[40] At
[84].
[41] At [34]–[40]
above.
[42] At
[85]–[86].
[43] This provision applies to
both the access warrants and the removal and retention warrants:
s 16C(3).
[44] Tranz
Rail Ltd v Wellington District Court, above n 30, at [38] and
[42].
[45] Gill v
Attorney-General, above n 11.
[46] A Firm of Solicitors v
District Court at Auckland [2005] NZCA 435; [2006] 1 NZLR 586
(CA).
[47] We note that a
similar conclusion was reached by Venning J at
[29].
[48] At [34]–[40].
[49] The fact of non-compliance is confirmed by the evidence, set out at [54] above, that relevant documents were found in the ceiling cavity of Ms Bockett’s residence.
[50] Failure to comply with a s
17 request is an offence punishable by up to five years’ imprisonment or a
fine of up to $50,000:
ss 143–143B of the Act. If Ms Bockett refused to
comply with a s 17 request she would also be in breach of her professional
obligations under the Code of Ethics of the New Zealand Institute of Chartered
Accountants.
[51] Judicature
Amendment Act 1972, s 4(3).
[52]
Air Nelson Ltd v Minister of Transport [2008] NZCA 26; [2008] NZAR 139 (CA) (citations
omitted).
[53] Rees v Firth [2011]
NZCA 668, [2012] 1 NZLR 408. That case concerned the decision of an adjudicator
under the Construction Contracts Act
2002.
[54] At [48] (footnotes
omitted).
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