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Court of Appeal of New Zealand |
Last Updated: 3 June 2020
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BETWEEN |
CLARENCE JOHN FALOON Appellant |
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AND |
THE PLANNING TRIBUNAL AT WELLINGTON First Respondent THE ATTORNEY-GENERAL SUED ON BEHALF OF PALMERSTON NORTH JOINT VENTURE AIRPORT Second Respondent THE ATTORNEY-GENERAL SUED ON BEHALF OF MINISTER OF LANDS Third Respondent THE CLERK OF THE EXECUTIVE COUNSEL Fourth Respondent THE HIGH COURT OF NEW ZEALAND (TAURANGA REGISTRY) Fifth Respondent THE ATTORNEY-GENERAL SUED ON BEHALF OF THE COMMISSIONER OF INLAND REVENUE Sixth Respondent |
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Hearing: |
13 February 2020 |
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Court: |
Kós P, Clifford and Courtney JJ |
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Counsel: |
Appellant in person V McCall and A P Lawson for Third and Sixth Respondents |
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Judgment: |
19 May 2020 at 10 am |
JUDGMENT OF THE COURT
B There is no order for
costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
[1] Civil society requires a fair and effective civil justice system to determine disputes. Without it there would be anarchy and added conflict from resort to self‑help remedies. Access to justice is a critical human right. But there must be some reasonable limits to recourse to law. Otherwise a different form of anarchy arises.
[2] Civil justice has some simple basic rules to maintain order. First, proceedings must involve claims by persons with a legitimate interest in the subject of the dispute (standing). Secondly, all persons likely to be affected directly by a judgment should be joined in the proceeding (joinder). Thirdly, claims cannot be undertaken by instalment: the claimant must bring all his or her claims on a subject together in the one claim (the rule in Henderson v Henderson).[1] Fourthly, claimants who fail usually must pay a substantial contribution to the other side’s costs (costs). Fifthly, the judgment is determinative of all issues in the proceeding and must be implemented unless stayed pending an appeal (execution). Sixthly, generally there is only one right of appeal, but a right to seek leave to bring a second appeal (appeal). Seventhly, once those rights are exhausted, that is that and the final judicial determination is not to be subverted by collateral challenge through further proceedings on the same subject matter (finality).
[3] As this Court observed recently, finality is integral to justice, because justice is concerned with the determination of rights.[2] Serial efforts to reopen otherwise final judgments may deny justice to parties and other persons entitled to depend upon those judgments, and delay justice to others with proceedings of their own needing attention.
[4] Finality and Mr Faloon are however strangers to one another. By this Court’s count, he has filed previously a total of 19 proceedings, giving rise to some 60 judgments. This proceeding, his 20th, concerns, as Dobson J put it in the High Court judgment:[3]
... allege[d] errors in adjudicating [Mr Faloon] bankrupt in 2016, and civil wrongs committed by all manner of entities claimed by Mr Faloon to have responsibility for the re-alignment of a stream on land adjoining the Palmerston North airport, and subsequent taking of that land from a company with which Mr Faloon’s family was associated.
[5] Five of the 19 prior proceedings concerned in a direct way interests in or rights arising from the former ownership of the same land adjoining the Palmerston North airport by the Faloon family and family companies (in particular, a company called Trade Lines Ltd).[4] A further six proceedings were indirectly connected to Mr Faloon’s claims regarding interests in or rights arising from the Palmerston North land. A table annexed to this judgment summarises these proceedings.
[6] Dobson J struck the latest (20th) proceeding out pursuant to r 5.35B of the High Court Rules 2016.[5] At the same time the Judge made a limited restraint order under s 166 of the Senior Courts Act 2016 restricting Mr Faloon or any agent purporting to act on his behalf from commencing any civil proceeding which relates in any way to his adjudication as a bankrupt, or to claimed interests in, or rights arising from, former ownership of land adjoining Palmerston North airport by Trade Lines, this order to have effect for a period of five years.[6]
[7] Mr Faloon appeals.
This proceeding
[8] The statement of claim in this proceeding is, as the Judge said below, prolix in the extreme.[7] It offends almost every rule of pleading. It mixes pleading and evidence in a suffocating and confused concoction. We mean no discourtesy in saying that it has been obscured, rather than informed, by an incomplete legal education received by Mr Faloon some sixty years ago.
[9] The first cause of action purports to seek judicial review of a paragraph in a judgment of Associate Judge Bell, adjudicating Mr Faloon bankrupt, in which he found that Mr Faloon may have acted as an executor de son tort before the grant of probate of his father’s estate.[8] It may be noted that that simple proposition is then attenuated to 11 prayers for relief including money claims against the Attorney‑General. In addition, Mr Faloon seeks judicial review of two decisions of the Planning Tribunal at Wellington in 1987 and 1990.
[10] The second cause of action, purportedly advanced under the Judicial Review Procedure Act 2016 and the Crown Proceedings Act 1950, concerns:
[a] question relating to the title, possession and market-value of 5.6293 hectares of ‘Relationship property’ of [Mr Faloon’s parents] including a question relating to the title, possession, and market value of the 404‑Metre‑long 1977-Year Diversion of the Kawau stream constructed in 4 lands by T J Faloon and the applicant ...
[11] Some 13 prayers for relief are advanced, some incorporating sub-prayers, seeking inter alia declaratory orders that the taking of part of the land, being 1.8404 hectares including a part of the stream diversion under the Public Works Act 1981, was invalid; seeking orders for inspection, photography, measurement, production of evidence, and correcting all errors in a cadastral survey; that alterations made to a plan for the diversion of the Kawau stream were in contravention of the Copyright Act 1962, tortious and a fraud on powers given to Mr Faloon and his father by the Manawatu catchment; and a finding that the:
... ongoing grievance that the applicant has over the taking of the land belonging to the family farming company Trade Lines Ltd ... is, in point of law, a lis mota between the applicant and the Crown ...
[12] The third cause of action concerns further claims in relation to the same 1.8404 hectares of land and seeks declarations in relation to the status of certain deeds and other instruments drawn up in relation to the taking of that land under the Public Works Act by the Crown in 1993. There are some seven prayers for relief in relation to that cause of action.
[13] As the Judge put it:
[2] The statement of claim is prolix in the extreme, running to some 42 pages. The three causes of action reflect legally inconsequential variations on claims that have previously been pursued by Mr Faloon and rejected, both on their merits and as abuses of process. For the reasons I outline briefly below, I am satisfied that all three causes of action in this purported proceeding should be struck out.
...
[4] Mr Faloon’s complaints allege errors in adjudicating him bankrupt in 2016, and civil wrongs committed by all manner of entities claimed by Mr Faloon to have responsibility for the re-alignment of a stream on land adjoining the Palmerston North airport, and subsequent taking of that land from a company with which Mr Faloon’s family was associated. Both complaints have both been aired extensively before the Courts. There are numerous decisions that have held the array of pretexts for Mr Faloon to pursue claims on these matters to be entirely untenable.
Should this proceeding have been struck out?
[14] It is abundantly clear that this proceeding is an abuse of process and that the decision to strike it out was correct. We make three points in the context of the basic rules outlined in [2] above.
Infringement of seventh basic rule (finality)
[15] First, and fundamentally, this proceeding seeks to reopen matters determined in earlier proceedings. As the Judge noted, Mr Faloon has attempted to revive claims that have previously been pursued and rejected, both on their merits and as abuses of process.
[16] As to the first cause of action, the decision of Associate Judge Bell has already been the subject of final consideration by this Court.[9] Mr Faloon has previously raised the issue of rehearing the Planning Tribunal decisions in Faloon v Palmerston North Airport Ltd and must be taken to have been resolved by those proceedings.[10] Further, the pleaded ground for judicial review of these decisions (the existence of special powers) had already been considered and rejected by Duffy J in Faloon v Public Trust.[11]
[17] As to the second cause of action, and the further challenge made there to the decision of Associate Judge Bell, Mr Faloon has already exhausted his appeal rights against that judgment.[12] He may not now go round the back and attempt re‑entry through the tradesman’s entrance of judicial review. The underlying issues regarding the diversion of the Kawau stream have previously been determined, including, as we have noted, the existence of any joint special power. Mr Faloon has without success already sought orders for inspection of the property,[13] an order to correct errors in the cadastral survey affecting the titles to land,[14] an order that the taking of the land (including the diversion) was invalid,[15] an order that compensation had not been paid in respect of the land,[16] orders in relation to alterations made to copyright plans,[17] the existence of an incorporeal hereditament,[18] and orders that Mr Faloon was entitled to the land.[19]
[18] Finally, insofar as the third cause of action seeks to judicially review the compulsory taking of the Palmerston North land in 1993, this issue has already been determined against Mr Faloon, primarily on the basis that this could only be a complaint, if tenable at all, that could be pursued by Trade Lines (as the company from which the land was acquired).[20]
Infringement of third basic rule (rule in Henderson v Henderson)
[19] Secondly, to the extent that any of the relief sought by Mr Faloon in these proceedings has not previously been sought, it is patent that Mr Faloon should have raised those claims in the earlier related subject matter proceedings, in accordance with the rule in Henderson v Henderson.
[20] In particular, in respect of the second cause of action, Mr Faloon had the opportunity to seek a declaratory order that the power to acquire the land under the Public Works Act was an “invalid delegation” and that the Crown failed to obtain written consent to the diversion when making claims against the Minister of Lands in respect of the acquisition of the land and the validity of the diversion.[21] In relation to the third cause of action, to the extent that the various declarations sought by Mr Faloon have not previously been raised, they ought to have been raised in those same proceedings.
Inadvertent non-compliance with r 5.35B(3)
[21] Thirdly, there is nothing in Mr Faloon’s complaint that the judgment was ineffective by reason of oversight by the Judge to comply with the exact terms of r 5.35B(3). The omission was merely to inform Mr Faloon that he had a right of appeal from the order. As an experienced litigant, and appellant, Mr Faloon may be taken to have known that right existed. In any event, the omission was identified by another Judge, who issued a minute advising Mr Faloon of that fact on 2 October 2018.[22] Mr Faloon filed the present appeal the following day, 3 October 2018. He did so within time. He was not prejudiced at all by that inadvertent omission.
Should a limited restraint order have been made?
[22] It is also abundantly clear that the decision to place Mr Faloon under s 166 litigation restraint was correct. We make two points.
[23] First, the prerequisite for making the order was the bringing of at least two proceedings that are or were “totally without merit”.[23] That was plainly made out here, for the reasons given by the Judge at [19] to [22] of his judgment. We set those out:
[19] Having reviewed the history of Mr Faloon’s extensive litigious initiatives, I am satisfied that at least two of those proceedings have been totally without merit. I am annexing to this judgment a schedule of 56 judgments issued in matters in which Mr Faloon has been involved. I accept it may not be entirely exhaustive. I am also annexing a schedule of judgments involving Central Equipment Company Limited, for which litigation Mr Faloon appears to have been at least primarily responsible. Not all of these cases concern the same or similar issues to those in Mr Faloon’s current application, but collectively they demonstrate Mr Faloon’s litigious nature.
[20] I note, for example, that in two separate appeals, the Court of Appeal has described Mr Faloon’s litigation as either “hopeless” or “hopeless” and “an abuse of the process of the Court”.
[21] The effect of numerous High Court judgments has been that Mr Faloon was pursuing untenable causes of action and often was asserting a claim for which he did not have standing.
[22] I am also mindful that whilst Mr Faloon remains an undischarged bankrupt, there would inevitably be issues of his ability to legitimately provide security for costs, which would be a predictable first step for defendants having to deal with any claim that was accepted for filing.
(footnotes omitted)
[24] The degree of abuse of process, refiling proceedings raising issues already determined and otherwise which ought to have been incorporated in those earlier proceedings, is profound. It is as bad a case as this Court has seen. Mr Faloon sought before us to draw distinctions between these and his other proceedings. Even if the distinctions passed muster, and they do not, they fall foul of the third basic rule referred to above. For instance, an aspect which Mr Faloon seeks now to pursue concerning the allegedly concealed diversion and extension of some underground pipes in fact came to his attention when his father told him about it in hospital on 11 March 1977, some 43 years ago. Mr Faloon’s submission that he had “not had the opportunity” to pursue the issue earlier cannot sensibly be accepted.
[25] Secondly, the right to natural justice ordinarily is engaged when making a s 166 order, because of the importance of the right to access the courts.[24] However, because Mr Faloon’s statement of claim sought to re-open matters already finally determined, it was open to the Judge to issue a limited restraint order prohibiting relitigation of those same matters, without notice and without giving him the opportunity to be heard. That very course was anticipated by this Court in Genge v Visiting Justice at Christchurch Men’s Prison:[25]
[We] have said the right to access to the courts will “normally” engage the right to natural justice. But we acknowledge that there may be a narrow class of case where prior notification or hearing before the making of a civil restraint order may not be required. The courts have always had an inherent jurisdiction to prevent egregious abuse of judicial process by, for instance, the repeated filing of claims already adjudicated and determined. In such cases it has been commonplace for the High Court to direct that no further proceedings asserting the same claim be received for filing. That jurisdiction has been enlarged, legislatively, by r 5.35B of the High Court Rules 2016, inserted in 2017, which permits proceedings which are a plain abuse of process to be struck out or stayed by a judge on receipt. The right to a hearing is expressly ousted, although there is (as here) a right of appeal. Conceivably, and alternatively, a judge might instead adopt a parallel course of making an own-motion restraint order, without notice, confined to precluding what in substance is the refiling of a claim already adjudicated.
(footnotes omitted)
[26] In this instance the Judge did both. No objection can be taken to that course in these circumstances. To have struck the proceeding out without making any further order would merely have invited its refiling in some related form.
Applications in support of appeal
[27] For completeness we record that Mr Faloon made two interlocutory applications in support of his appeal. The first was for declaratory orders identifying the character and capacity of the parties on appeal; the second was to adduce further evidence on appeal. The first application is declined as no clear basis for the order has been identified, and would in any case be inappropriate as several of the respondent parties have not been correctly named. The second application is declined as the further evidence Mr Faloon seeks to adduce is neither credible, fresh nor cogent. We say no more about these applications.
Result
[28] The appeal is dismissed.
[29] The Crown not seeking costs, no order is made.
Solicitors:
Crown Law Office,
Wellington for Third and Sixth Respondents
Faloon v Planning Tribunal CA604/2018 — table of previous
judgments
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Case name
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Cause of action and relevant applications
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Held
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Substantive or strike out?
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Proceeding one: collection of duties and tax issues related to amended
assessment of income
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CP670/87
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Mr Faloon claimed that he suffered loss because of the failure of the
Comptroller of Customs to collect duty on hay tedders imported
into New Zealand
by manufacturers other than Central Equipment Company Limited (CEC)
(as required by the Customs Act 1966). Because
of this alleged failure it
was said that Mr Faloon’s company had not received the tariff protection
to which it was entitled
for its own products.
Mr Faloon also sought to have reviewed by the Court the Commissioner of Inland Revenue’s exercise of the discretion under s 31(1) of the Income Tax Act 1976 in refusing to make amended assessments of the income of CEC between 1973 and 1982 based on the patent rights claimed by Mr Faloon and the profits said to have accrued thereon. The respondents applied to strike out both claims. |
Ongley J was not prepared to strike out the claim in relation to the
Comptroller of Customs as being so clearly untenable that it
could not possible
succeed. However, the Judge considered the pleadings to be unsatisfactory
and directed that Mr Faloon file a
fresh statement of claim.
The claim against the Commissioner was struck out on the basis that no reasonable cause of action was to be found in the statement of claim ‑— there was nothing alleged in the statement of claim which laid a foundation for reviewing the exercise by the Commissioner of his discretion under ss 30(2) or 31(1) of the Income Tax Act or to support the contention that he had failed to perform his statutory duties in any way relevant to the proceedings. |
Strike out (application declined in respect of first claim and granted in
respect of second claim).
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Proceeding two: infringement of patents
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CP674/87
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Mr Faloon sought damages from the Commissioner for infringement of patents
which Mr Faloon had obtained for agricultural machinery
inventions used by CEC.
The Commissioner had written to CEC requesting information concerning the
inventions for the purposes of
a tax assessment. Mr Faloon claimed that the
mere mention of the inventions in the letter amounted to an unlawful use of them
and
that a reference to assignments of the patents amounted to a slander of
title to the patents.
The Attorney-General applied to strike out the claim. |
Ongley J struck out the claim on the basis that no reasonable cause of
action was disclosed by the statement of claim. The allegation
of unlawful use
of the inventions was not capable of being reasonably construed to found a cause
of action having a valid legal basis.
Nor was there any reasonable cause of
action established in relation to the alleged slander of Mr Faloon’s title
to the patents.
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Strike out (application granted).
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Applications in respect of proceedings one and two
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Mr Faloon applied to be joined as a party in his capacity as representative
of the estate of his late father to appeals against the
High Court strike out
decisions (see 1 and 2) (as he no longer had standing to act for himself as
appellant due to having been adjudicated
bankrupt).
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Assuming, without deciding, that Mr Faloon was entitled to claim a
representative interest, the Court was satisfied that there was
no basis for
joining him in any different capacity — the first proceeding did not raise
any question regarding the rights of
Mr Faloon’s late father, and the
second proceeding involved a claim made by Mr Faloon personally for damages
against the Crown.
It was not then open to him to assert a different claim on
behalf of the estate of his late father resting on different patents.
References in Mr Faloon’s application to other disputes were irrelevant to
the present appeals so could not assist.
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Interlocutory (application for joinder declined).
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Mr Faloon sought conditional leave to appeal to the Privy Council
against the Court of Appeal’s joinder decision (see 3).
The Court also dealt with applications to strike out the substantive appeals (against the decision in 1 and 2) for failure to prosecute and applications by Mr Faloon seeking orders on a number of other matters. |
The Court declined the application for conditional leave on the basis that
the question of whether (in effect) the estate of the late
Mr Faloon should be
made a party to the appeals was not of great general or public importance, nor
otherwise of a kind which ought
to be submitted to the Privy Council for
decision.
The Court struck out the appeals on the basis that there was evidence showing inordinate delay in prosecuting them, and because there had not been identified any point in the appeals with any real chance of success. The Court declined the other applications by Mr Faloon on the basis that the Court had no jurisdiction to deal with originating applications. |
Application for conditional leave to appeal (application
declined).
Strike out (appeals struck out). |
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Proceeding three: removal of caveats related to Palmerston North
land
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BNZ applied for the removal of a caveat lodged by Mr Faloon in respect of
land registered in the name of Trade Lines Ltd adjoining
the Palmerston North
airport. Mr Faloon claimed two interests in the land: first, ownership of a
diversion of the Kawau Stream;
and secondly, certain partial and qualified
interests in land belonging to Trade Lines Ltd and other adjoining lands for the
purposes
of s 97 of the Public Works Act 1981.
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Goddard J was prepared to accept that Mr Faloon’s claim was capable
of being derived through his interest in the estate of his
late father, in which
he was a residuary beneficiary, subject to a life interest.
However, the Judge could see nothing in the evidence supporting Mr Faloon’s proposition that he or his late father was or had been the “owner of a diversion of the Kawau stream”, and nothing that gave rise to an interest in the land. Similarly, there was nothing giving rise to the interest in the land for the purposes of the Public Works Act. |
Substantive (application for removal of caveat granted).
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Proceeding four: registration of caveats over Palmerston North
land
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Mr Faloon registered two caveats against land owned by Palmerston North
Airport Ltd claiming an interest in that land (an equitable
easement in gross,
based on the piping of the Kawau stream). Palmerston North Airport Ltd
challenged the caveats by presenting a
mortgage for registration. Mr Faloon
then applied to the High Court under s 145 of the Land Transfer Act 1952 for an
order that
the caveats not lapse. That position held until an order made
by consent by Doogue J on 17 December 1996. Mr Faloon’s sister
was then
added as a plaintiff claiming an identical interest.
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Ellis J found that the agreement to pipe did not create an easement, let
alone an easement in gross over airport land. Nor was there
anything in
the letter of 18 August 1975 from the city engineer regarding the piping that
would entitle the late Mr Faloon or anyone
else to charge for conveying water in
the pipe through the middle land. Furthermore, the land was subsequently
acquired under the
Public Works Act, and therefore became absolutely vested in
fee simple in the Crown freed and discharged from all mortgages, charges,
claims, estates or interests of whatever kind. Even if the land taken was
subject to an easement, it would have been in favour of
the airport land and so
the interests would merge. Mr Faloon therefore had no interest in land which
could support a caveat.
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Substantive (application for caveat declined).
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The Land Registrar applied to strike out Mr Faloon’s appeals against
Ellis J’s decision (see 6). The appeals were not
advanced during Mr
Faloon’s bankruptcy by the Official Assignee, and nor had they been
prosecuted since the discharge from
bankruptcy.
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The Court noted that there had been further dealings with the subject land
since the appeals were filed, and there was nothing before
the Court suggesting
any derogation from the presumed indefeasibility of the title of the current
registered proprietors. To the
extent that the appeals sought the restoration
of the caveats their objective was unattainable. The Court concluded that the
appeals
ought to be struck out, having languished, inexcusably, for more than
four years and being unable to serve any useful purpose.
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Strike out (application to strike out appeals granted).
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Proceeding five: bankruptcy (related to guarantees of the indebtedness
of Trade Lines Ltd)
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Mr Faloon applied to set aside bankruptcy notices issued by the High Court
at the instance of BNZ. The debt arose out of guarantees
of the
indebtedness of Trade Lines Ltd. Mr Faloon did not dispute the guarantee or
Trade Lines Ltd’s indebtedness. Rather,
the application turned on his
claim arising out of work done by his father and perhaps himself on the land in
connection with the
diversion of the Kawau Stream (claiming an incorporal
hereditament).
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Ellis J noted that Mr Faloon’s claims were directed to the Palmerston
North City Council, Palmerston North Airport Ltd and the
Crown. BNZ was not
involved. At most the claims could produce money to pay BNZ. The claims
therefore did not constitute a counterclaim,
set off or cross demand that would
assist in the present case.
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Substantive (application to set aside bankruptcy notice dismissed).
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Proceeding six: registration of land
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Mr Faloon claimed that he had been deprived of his interests in land, or
suffered loss, by wrongful actions of the Registrar-General
of Land in making 10
entries in the Register of Land, such entries leading to and causing loss to Mr
Faloon through loss of his interests
in land (being the Kawau stream diversion
and the compulsory acquisition of land).
The Attorney-General applied to strike out the claim. |
Gendall J concluded that the multiple, intricate, detailed but extremely
convoluted pleadings in the statement of claim made it impossible
for the
defendant to properly plead them. The pleadings did not establish any
reasonable cause of action — the two causes
of action of omission or
mistake of misfeasance by the Registrar and by misdescription of the land could
not have any tenable or
possible basis as repeated High Court decisions had held
that none of the plaintiffs had any interest in the land. In the Judge’s
view, the pleadings were so flawed as to be beyond remedy.
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Strike out (application granted).
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Mr Faloon sought to appeal the judgment of Gendall J (see 9) but filed his
appeal out of time.
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The Court granted the application for an extension of time.
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Interlocutory (application for extension of time in which to appeal
granted).
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Mr Faloon sought an extension of time in which to file the case on appeal
and apply for a fixture in respect of his appeal against
the judgment of
Gendall J (see 9) as he had several outstanding proceedings in the High
Court which wold have a bearing on the substantive
appeal, and he had
encountered difficulties accessing the High Court file.
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The Court declined the application for an extension of time to file the
case on appeal. If the appeal were to proceed to a hearing,
there would be two
major obstacles (accepting the facts as pleaded). First, there could be no
interest in the pipeline by any of
the appellants that could found an
ownership interest, ownership having vested exclusively in Trade Lines Ltd. The
appellants’
claim, which depended on showing that the appellants had been
deprived of interests in land through the registration process, was
accordingly
hopeless. Secondly, the appellants, and in particular Mr Faloon, were plainly
relitigating against the Crown issues
already decided adversely to them in their
various previous proceedings (for example the claim for an easement in gross was
the subject
of Ellis J’s judgment rejecting that claim).
|
Interlocutory (application for extension of time to file the case on appeal
declined).
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Proceeding seven: tax issues relating to Central Equipment Ltd, taking
of land under Public Works Act
|
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M757-SD/01
|
Mr Faloon sought to alter “disputable decisions” under s
138P(2)(b) of the Tax Administration Act 1994. The statement
of claim did not
clearly identify the “disputable decision” but it emerged during the
hearing that it was the Commissioner’s
disallowance of CEC’s claim
for a tax credit in December 1996 on the basis that CEC had never paid the rates
in question —
they had been paid by the liquidator of Trade Lines Ltd and
had already been claimed for GST purposes by that company.
A claim was also made against the Minister of Lands which alleged that the Minster acted unlawfully in the matter of the Public Works Act taking by proclamation of land for the Palmerston North airport and in failing to protect the interests of Mr Faloon in the land. The respondents applied to strike out the claims. |
Elias CJ held that Mr Faloon’s first claim was both procedurally
flawed and fatally flawed because Mr Faloon, not being the
taxpayer, was
not a disputant within the definition of the Act and therefore did not have
standing to challenge the assessment.
In respect of the second claim, no tenable cause of action was disclosed and the issues had previously been litigated (including in a strike out application by Gendall J, see 9). The Court had previously decided that neither Mr Faloon nor CEC had any interest in the land taken by proclamation and the taking had been held to be valid. There was therefore no purpose in the proceedings. |
Strike out (application granted).
|
|
Proceeding eight: orders preventing Trade Lines Ltd’s removal
from the Companies Register
|
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|
Mr Faloon made various interlocutory applications in respect of a claim for
orders that Trade Lines Ltd (in liq) not be removed from
the Companies Register
and that the second and final report of the liquidator be rescinded and set
aside.
The interlocutory applications were for an order that the proceeding be referred to a judge pursuant to s 26N of the Judicature Act 1908; an order striking out the Registrar of Companies’ notice of opposition pursuant to rr 458F(1), 244(1) and 186 of the High Court Rules; and an application for orders that a Mr Harte be examined before the Court pursuant to r 509 and that property described in the schedule to an order of the Planning Tribunal be inspected pursuant to r 322. |
Master Faire granted the application for an order referring the proceeding
to a judge as there was no opposition, although noting
that the application was
made out of an abundance of caution.
Master Faire declined the application for an order that Mr Harte be examined before the Court as none of the grounds for making an order under r 509 existed, and he had already made an affidavit in the proceeding and could be cross-examined by the issue of a notice under r 508. Master Faire also declined the application for inspection of property as it would not achieve Mr Faloon’s objective (to ascertain whether the particular title reference in a Planning Tribunal order matched the piece of land that he believed had been taken and for which no full compensation had been paid), nor would it assist in the proper determination of the originating application. Master Faire declined the application for an order striking out the Registrar’s notice of opposition but directed the Registrar to file and serve an amended notice of opposition providing specific responses to each of the numbered paragraphs under the heading Ground in the originating application. |
Interlocutory (application for referral to judge granted; application
striking out the notice of opposition declined; applications
for examination
order and inspection order declined).
|
|
Mr Faloon sought an order striking out the Registrar of Companies’
second notice of opposition for non‑compliance with
r 244 of the High
Court Rules (see 13).
|
Master Faire declined the application for strike out on the basis that the
notice of opposition was compliant with r 244 of the High
Court Rules. He also
set out precisely what was being alleged by the Registrar for Mr Faloon’s
benefit.
|
Interlocutory (application to strike out the notice of opposition
declined).
|
|
Mr Faloon sought orders excusing him from providing security as fixed by
the Registrar in respect of an appeal against a decision
striking out the
proceedings for failing to pay a setting down fee in time, reducing the amount
of security and/or extending the
time to allow him to lodge security, on the
basis that there were exceptional circumstances and the matters Mr Faloon sought
to raise
on appeal were novel and important points.
|
Venning J noted while Mr Faloon saw the appeal as an opportunity to raise
all the issues which had not yet been ruled upon by the
Court in the proceedings
in the High Court in his view, the Registrar of Companies considered the only
issue before the Court of
Appeal would be whether Paterson J was correct to
strike out the proceeding due to Mr Faloon’s failure to comply with orders
of the Court.
Given that the Court of Appeal could only deal with the latter issue, there were no exceptional circumstances or novel points raised by the appeal. On that basis the application to dispense with security was declined, but Venning J did reduce the sum of security and extended the time for payment. |
Interlocutory (application for dispensation of security for costs declined,
applications for reduction of sum and extension of time
in which to pay security
granted).
|
|
Proceeding nine: tax issues related to assessment of gift
duty
|
|||
CIV-2005-470-508
|
Mr Faloon sought to challenge an assessment of gift duty by the
Commissioner under s 138F of the Tax Administration Act 1994. Essentially,
Mr
Faloon’s cause of action related to two easements in gross registered on
the title to the Palmerston North land, for which
the grantee (CEC) paid no
consideration and that Mr Faloon held a “beneficial interest”.
Mr Faloon filed a gift statement
in respect of the grant of the easements, but
this was declined on the basis that the easement in gross had been held to be a
nullity
so no value could be attributed to its creation. Mr Faloon alleged that
this relied on a “disputable decision” and therefore
the gift duty
was assessed incorrectly. What Mr Faloon really sought, however, was an order
that the Commissioner carry out a formal
valuation process in respect of the
gift (which Mr Faloon asserted was required by ss 20 and 68 of
the Estate and Gift Duties Act
1968).
The Commissioner applied to strike out the claim. |
Asher J noted that much of the statement of claim related to
Mr Faloon’s underlying grievances and seemed to be irrelevant to
the
cause of action ultimately pleaded. However, Asher J considered this to be a
new cause of action because it related to the
correctness of a decision of the
Commissioner on gift duty.
Asher J concluded that the underlying easement seemed to create a meaningless right, noting that Gendall, Ellis and Heron JJ had expressed reservations about its legitimacy. The gift statement also did not make commercial sense in terms of its timing (many years after the easement was allegedly agreed or registered), indicating a tactical move (that is, to keep litigation relating to Mr Faloon’s underlying disputes alive). However, the basis of the cause of action (that the Commissioner was required to carry out a valuation process), was, although technical, not without merit, so the claim could not be struck out on this basis. More problematically, Mr Faloon had no status to bring the proceeding as he was not the donor of the easement (but rather Trade Lines Ltd), and therefore had no legitimate status to lodge the gift statement. Mr Faloon therefore had no reasonable cause of action against the defendant and the proceeding had be struck out. This was further exacerbated by the fact that any cause of action had passed to the Official Assignee. |
Strike out (application granted).
|
CIV-2005-470-508
|
Mr Faloon applied for recall of Asher J’s strike out judgment (see
16).
|
Asher J considered that none of the matters raised by Mr Faloon related to
developments since the judgment or a legislative provision
or authoritative
decision of plain relevance to which Asher J was not referred. Any issue
relating to whether Mr Faloon was trustee
of his father’s estate did not
affect the outcome because neither he nor his father was the donor nor the donee
in relation
to the alleged gift which was the subject of the proceedings. No
proper basis had been put forward by Mr Faloon for recall, which
was yet another
attempt in a different form to relitigate the same issues he had been pursuing
since 1996.
|
Recall (application declined).
|
|
Mr and Mrs Faloon applied to review a decision of the Registrar declining
their application for a waiver of security for costs in
respect of an appeal
seeking a “rehearing” of Asher J’s decision declining the
application for recall (see 17).
|
The Court noted that the Faloons had not pointed to any grounds in support
of waiver. The application traversed the perceived merits
of the underlying
disputes and objected to the recall decision being made on the papers.
The Court considered there to be good reasons to require security: it was unclear whether the applicants were impecunious, it was not clear whether the proceeding would be rendered nugatory if security was ordered, previous costs orders had not been paid, the appeal was not genuinely arguable and the purpose of the application appeared to be to relitigate Mr Faloon’s disputes with the Council and the Crown, which meant the present application was not only not in the public interest but bordered on an abuse of process. |
Review of Registrar’s decision (application for review
declined).
|
|
Mr and Mrs Faloon applied to recall the Court of Appeal judgment declining
their application for review of the Registrar’s decision
(see 18). The
basis of the application was that the Court gave insufficient factual
background.
|
The Court considered that the application, being an attempt to relitigate
matters or to challenge the Court’s substantive findings,
was not a proper
basis on which to apply for recall.
|
Recall (application declined).
|
|
Proceeding 10: tax issues relating to filing of statement of
position
|
|||
|
Mr and Mrs Faloon applied jointly for an extension of time under s 89M(11)
of the Tax Administration Act 1994 to file his statement
of position in response
to a statement of position filed on Mr Faloon, with the ultimate aim of proving
a much higher income based
on interest from compensation Mr Faloon believed he
should have been given by the government. Mr Faloon’s primary
argument
was that the Commissioner should be prepared to discuss the issues that
arise from the statement of position with him and his wife
before he should be
obliged to respond to it, relying on s 89A of the Tax Administration Act.
|
Asher J considered that the test for an extension of time (that it is
unreasonable for the disputant to reply to the Commissioner’s
statement of
position within the response period, because the issues in dispute have not
previously been discussed between the Commissioner
and the disputant) had not
been met, as the issues had been traversed and argued “to almost
unimaginable lengths” between
the parties, over a long succession of court
cases initiated by Mr Faloon, such that two months was not an unreasonable time
in which
to respond.
Additionally, Asher J considered that Mr Faloon’s position in relation to his tax matters was tactical, in order to keep his underlying disputes alive, and there was every indication that Mr Faloon had premised his tax position on the misconception that he was entitled to compensation personally, when the claim (if valid) should have been by Trade Lines Ltd. |
Interlocutory (application for extension of time to file statement of
position declined).
|
|
Mr and Mrs Faloon sought an order recalling Asher J’s judgment (see
20) on the grounds that the judgment contradicted statements
and “official
information” supplied by public authority in 1998, and derogated from the
provisions of the Public Works
Act 1981.
|
Asher J declined the application for recall on the basis that none of the
categories in Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 were
made out — Mr Faloon appeared instead to be putting forward “the
same old arguments”.
|
Recall (application declined).
|
|
Mr and Mrs Faloon sought to recall the recall judgment of Asher J (see 21).
|
Asher J declined the application for recall on the papers on the basis that
the request was on its face without merit — no grounds
had been put
forward which met the recall principles in Horowhenua County.
|
Recall (application declined).
|
|
Mr and Mrs Faloon sought an extension of time to apply for the allocation
of a hearing date and file the case on appeal in respect
of their appeal against
the decision of Asher J dismissing the application to recall his previous recall
decision (see 22).
Mr Faloon also sought permission to apply for two orders of “certiorari”, one relating to four titles to land and one relating to seven patents. |
In respect of the extension of time, the Court considered the appeal to be
a continuation of the line of cases in which the applicants
sought to relitigate
their ongoing dispute with the Crown and other parties. The resort to the
tactic of multiple applications for
recall was concerning and the Court did not
see any prospect of the appeal succeeding. There was, in any case, no appeal
before
the Court against the substantive judgment. The proposed appeal would
not put in issue the matters dealt with in the substantive
judgment. In those
circumstances it was a pointless exercise.
The Court also declined the request for permission to seek orders of certiorari on the basis that it was unclear what those applications would entail, and in any event the Court did not have an originating jurisdiction. |
Interlocutory (application for extension of time declined; request to seek
two orders of certiorari declined).
|
|
Proceeding 11: tax issues relating to income assessment, notice of
proposed adjustment and patent rights
|
|||
CIV-2009-470-885
|
Mr Faloon brought three causes of action. The first sought to challenge
assessments of trustee income returned to the Commissioner
which were rejected
by the Commissioner (therefore seeking an increase of the amount of the
assessment of trustee income) and related
declarations. In the second cause of
action the plaintiffs claimed to be entitled to challenge six “disputable
decisions”
made by the Commissioner. Those decisions were the
subject of a notice of proposed adjustment, rejected by the Commissioner, filed
by the plaintiffs in response to the Commissioner’s rejection of the
income assessment, on the basis of the joint “special
power” held by
Mr Faloon and his father in respect of the Palmerston North land arising from a
letter dated 18 August 1975.
The third cause of action dealt with Mr
Faloon’s patent rights, which Mr Faloon claimed were unresolved and
sought an order
determining the correct means of payment for the use of these
patents. The Commissioner had responded to this in the letter rejecting
the
notice of proposed adjustment.
The Commissioner applied to strike out the plaintiffs’ proceeding. The plaintiffs opposed the application and applied to set aside the Commissioner’s submissions upon the strike out application on the grounds they did not contain the material required by r 7.39 of the High Court Rules. |
Associate Judge Christiansen declined the application to set aside the
Commissioner’s submissions on the basis that Mr Faloon
had misconceived
the purpose of r 7.39.
Turning to the strike out application, Associate Judge Christiansen noted that it was clear from the many previous cases involving Mr Faloon that any of the interests in the land in question affected by the works were not owned personally by Mr or Mrs Faloon. Mr Faloon appeared to be trying to compel the Commissioner to accept assessments of income based on claims which had been conclusively rejected in both the High Court and Court of Appeal. It was clear that the first cause of action was not reasonably arguable. Mr Faloon seemed to be saying that, notwithstanding all of those earlier decisions, the Commissioner was bound to accept what Mr Faloon said in the statement of position. Mr Faloon had failed to comply with the relevant requirements of the Tax Administration Act and had not explained in his pleading or any of the related documents how he and his wife were somehow entitled to benefit in respect of interests allegedly owned by the companies. In respect of the second cause of action, Associate Judge Christiansen found that the clear evidence was that Trade Lines Ltd not Mr Faloon owned the land in question, part of which had been taken for the Palmerston North airport and the remainder having been sold by the liquidators of Trade Lines Ltd, and the easement in gross affecting the land was purportedly created in favour of CEC, and had since been extinguished by court order. Mr Faloon could not therefore assert that those land interests continued to exist or that he was entitled to them. In any case the matter had previously been adjudicated and decided adverse to Mr Faloon’s interests, so this was an abuse of process. The third cause of action was struck out on the basis that there had been other cases in which Mr Faloon’s claim in respect of profits from patent rights had been dismissed, one of which dealt directly with the alleged infringement of patent rights by the Commissioner (which was struck out). Each decision was adverse to Mr Faloon, and therefore res judicata clearly applied. |
Strike out (application granted).
|
|
Mr Faloon filed two interlocutory applications relating to the decision of
Associate Judge Christiansen (see 24): the first, seeking
orders setting aside
the judgment for non-compliance with the High Court Rules, and the second,
seeking to review the orders or decisions
made by Associate Judge
Christiansen.
|
Woodhouse J noted that the first application had been responded to by a
minute of Associate Judge Christiansen, wherein the Associate
Judge stated that
if the application was intended to be a recall application, he refused to do so.
The appropriate means of addressing
Mr Faloon’s concerns was an appeal,
and no reasons had been provided to support a recall application. In addition,
he was
satisfied that the application did not raise any issue distinct from
an issue that might be raised on an application for review of,
or an appeal
against, Associate Judge Christiansen’s decision.
The second application had not been served within the relevant time limit. No application for an extension of time had been filed prior to the conference although the plaintiffs had ample notice that the defendants objected. There was no adequate explanation for the delay. Although Mr Faloon was a lay litigant, it was abundantly clear that he was very familiar with the Rules. Woodhouse J also considered that there was no merit in the application, the judgment providing compelling reasons for the proceeding to be struck out. Finally, Woodhouse J noted that this was a further attempt to relitigate matters that had been before the High Court and Court of Appeal in different forms over a number of years. |
Interlocutory (applications for recall and review declined).
|
|
Proceeding 12: tax issues relating to notice of proposed
adjustment
|
|||
|
Mr Faloon sought to reverse an order by Brewer J that he pay indemnity
costs in respect of a judgment declining three interlocutory
applications filed
by Mr Faloon. Mr Faloon indicated in a memorandum that as a trustee he had
a statutory indemnity against costs
being awarded against him in civil
proceedings. Mr Faloon also submitted that no award of costs should be made
against him unless
access to requested official information was provided, and
that his complaint to the Ombudsman was a “special circumstance”
in
the proceeding.
|
Brewer J declined to reverse, discharge or vary the indemnity costs order,
noting that Mr Faloon was incorrect in his view that he
had an indemnity against
costs in civil proceedings generally as a trustee. Even if Mr Faloon was a
trustee and had a “duty
under tax law” to bring the underlying
proceeding, this would not amount to special reasons requiring an adjustment in
indemnity
costs. The three interlocutory applications (to try and prevent the
defendant’s strike out application from being heard) were
without
foundation or merit.
More generally, nothing in Mr Faloon’s memorandum required the order for indemnity costs to be reconsidered, and indeed a submission requesting the order to be reversed and an “increased costs” order be made against the defendant verged on the vexatious. |
Costs (application to reverse indemnity costs order declined).
|
CIV-2010-470-922
|
Following the judgment of Associate Judge Christiansen (see 24) striking
out Mr Faloon’s proceeding, Mr Faloon contacted the
IRD’s Complaints
Management Service and enquired whether a disclosure notice was to issue in
relation to the notice of proposed
adjustment. Mr Faloon claimed that the
response, from a Mr Rodgers, contained three “disputable” decisions:
it was incorrect
that the notice of proposed adjustment was the basis of the
proceeding considered by Associate Judge Christiansen; and the Commissioner
had,
in a letter from a Mr Rodgers, stated he would not be taking any further action
in respect of the notice which implicitly indicated
a “disclosure
notice” would not be issued, contrary to the requirements of the Tax
Administration Act 1994. This also
linked to a claim that titles to the land
needed to be considered and responded to by the Commissioner, which had not been
achieved
by Mr Rodgers’ letter.
The Commissioner sought to strike out Mr Faloon’s claims and generally dismiss the proceeding. |
Associate Judge Christiansen struck out Mr Faloon’s claim for two
reasons. First, the response by the Commissioner to Mr Faloon’s
notice of
proposed adjustment was statute compliant and in reality the end of any
challenge to the notice. Mr Rodgers’ letter
was not a disputable decision
in terms of the Tax Administration Act.
Furthermore, given that the matter had already been adjudicated on by Associate Judge Christiansen, having been clearly before him in the earlier proceeding, there would have been no point in the Commissioner issuing a disclosure notice (and the Commissioner probably had no power to do so). The proceeding was an attempt to relitigate previous decisions decided against Mr Faloon in order to get around the effect of those decisions. This was clearly an abuse of process. |
Strike out (application for strike out granted).
|
CIV-2010-470-922
|
Mr Faloon sought to review the decision of Associate Judge Christiansen
striking out his proceeding (see 27), on the grounds that
the Associate Judge
made his decision on the basis of the statement of claim filed and served by Mr
Faloon at the outset, rather
than the amended statement of claim; that the
Associate Judge erred in holding that it was not reasonably arguable that the
statement
in Mr Rodgers’ letter was a disputable decision; that there was
a real controversy; that different matters were in issue in
this proceeding; and
that the earlier decisions of the Court were not in fact as the Associate Judge
considered them to be.
|
Peters J accepted that Associate Judge Christiansen was required to
determine the strike out application on the basis of the amended
statement of
claim, but was satisfied that he did in fact do this.
Peters J did not address whether it was reasonably arguable that the statement in Mr Rodgers’ letter was a disputable decision because she was satisfied that the Associate Judge was correct to strike out the proceeding on the (independent) ground that the pleading was frivolous, vexatious or otherwise an abuse of process. Even if Mr Faloon was correct that there was a real controversy, on an application to strike out the Court may have regard to wider considerations (in this case, the fact that the issue had already been decided in the earlier decision of Associate Judge Christiansen). Different matters were not at issue in these proceedings, the desired end being the same (that the trust was required to return income deriving from a claim regarding the land subject to the Planning Tribunal orders). Having reviewed the bundle of authorities provided to the Associate Judge, Peters J was satisfied that the Court’s previous findings were as the Associate Judge described them (in that there was no prospect of Trade Lines Ltd now bringing a claim for compensation as it had been wound up; and Mr Faloon did not have an interest in the affected land), and that in bringing the proceeding, Mr Faloon was seeking to circumvent those findings in a manner that amounted to an abuse of process. The Judge also discussed various additional grounds in Mr Faloon’s application for review, all of which she rejected. |
Review of Associate Judge’s decision (application for review
declined).
|
CIV-2011-470-878
|
Mr Faloon sought an order pursuant to pt 30 of the High Court Rules
prohibiting any further hearing of a proceeding which he had commenced
against
the Commissioner in 2010 and which had been struck out (see 27). Peters J had
declined Mr Faloon’s application to
review the Associate
Judge’s strike out decision (see 28).
The Commissioner sought an order striking out the statement of claim and dismissing the proceeding. |
Peters J granted the strike out application primarily on the basis that the
order sought by Mr Faloon had been overtaken by the decisions
at 27–28.
However, she also noted that the basis on which Mr Faloon sought the order
prohibiting any further hearing, that
the Commissioner had not filed a
statement of defence to an amended pleading filed by Mr Faloon, was based on a
misapprehension as
there was no requirement that a party who seeks to strike out
a pleading must first file a statement of defence. Accordingly, the
proceeding
never had any prospect of success.
|
Strike out (application granted).
|
CIV-2011-470-878
|
The Commissioner sought costs on a 2B basis in respect of its strike out
application (see 27) and the subsequent review application
by Mr Faloon
(see 28).
|
Associate Judge Christiansen noted that the fact Mr Faloon may have
had another application before the Court did not prevent the Court
from fixing
costs in relation to a proceeding which had been concluded, and indemnity costs
usually significantly exceed costs awarded
on a 2B basis. The Associate Judge
fixed costs against Mr Faloon on a 2B basis in respect of both the review
application and the
strike out application.
|
Costs (application for costs to be awarded against Mr Faloon by
Commissioner granted).
|
CIV-2010-470-922
|
Mr Faloon sought to review the costs judgment of Associate Judge
Christiansen (see 30). Mr Faloon also sought an order that his application
for
review operate as a stay of the proceedings.
The Commissioner applied for an order that the application be dismissed on the grounds that there is no jurisdiction to review a costs judgment and the only recourse for Mr Faloon would have been an appeal to the Court of Appeal. |
Woodhouse J declined the Commissioner’s application to dismiss the
application on jurisdictional grounds and made directions
for submissions to be
filed in relation to the application for review.
In respect of the stay application, Woodhouse J noted that Mr Faloon’s application was much the same as an application for a stay pending appeal, and therefore applied the same criteria. Mr Faloon’s appeal rights would not be rendered nugatory if there was no stay, and Mr Faloon had no realistic prospect of succeeding in his application for review, such that the Judge encouraged Mr Faloon to withdraw his application lest indemnity costs be awarded against him. The Judge also noted that there was very little scope to challenge the aspect of the decision relating to the judgment of Peters J (merely the Associate Judge’s quantification of the costs awarded by Peters J). The Judge concluded that the application would be deemed to be dismissed unless the total sum of costs was paid into the Court on or before Friday 19 July 2013. |
Review of Associate Judge’s decision (application to review costs
decision accepted).
Stay (application deemed declined unless total sum of costs paid by Mr Faloon to the Court). |
CIV-2010-470-922
|
Mr Faloon had three stay applications before the Court related to the
costs judgment of Associate Judge Christiansen (see 30). The
first application
sought a stay of the costs judgment pending the hearing of an application for
review (see 31). Woolford J subsequently
extended the time for payment by
minute, in large part due to the fact that there were two other stay
applications before the Court
relating to the costs judgment. The second
application sought a stay of the costs judgment pending Mr Faloon’s
separate appeal
to the Court of Appeal, and the third sought a stay of Woodhouse
J’s judgment (see 31) insofar as it related to the first stay
application,
pending an appeal to the Court of Appeal. In respect of the second and third
stay applications, Mr Faloon submitted
that the Commissioner’s notices of
opposition had been filed outside the 10 working days period provided for in the
High Court
Rules.
|
Katz J adjourned the application to review the costs judgment pending
determination of appeals filed by Mr Faloon in respect of the
costs judgment and
the judgment of Woodhouse J, it being inappropriate for there to be both an
extant appeal and an application for
review in relation to the costs judgment.
Although both the first and third applications were arguably moot, relating to the review not the appeal, the review application remained on foot albeit adjourned pending the outcome of the appeal. Consequently, and in order to ensure the applications were dealt with consistently, it was appropriate for the stay applications relating to those two appeals to be determined on the same basis as the first stay application, namely that they would be deemed to have been declined unless the total sum fixed by Associate Judge Christiansen was paid into Court on or before 9 August 2013. If the sum was paid into Court by that time enforcement of the costs judgment would be stayed pending the outcome of the two appeals. |
Stay (applications for stay deemed to be declined unless total sum of costs
paid by Mr Faloon to the Court).
|
CIV-2010-470-922
|
Following the stay judgment of Katz J (see 32), the Commissioner
sought indemnity costs against Mr Faloon pursuant to r 14.6(4)(a)
of the High
Court Rules, Mr Faloon having failed to make payment of the total sum of costs
to the Court by the required date (such
that the stay applications were
declined). In the alternative the Commissioner sought 2B costs and
disbursements.
|
Katz J noted that the Commissioner succeeded in her opposition to the
second and third stay applications, so was entitled to at least
2B costs. The
question was whether indemnity costs should be awarded.
Mr Faloon proceeded with the second and third stay applications despite a clear warning from Woodhouse J that he was risking an award of indemnity costs if he continued. They were, in effect, a collateral attack on Woodhouse J’s judgment, with the aim of avoiding having to pay the costs that had been awarded in the Commissioner’s favour into court. Mr Faloon ought to have known that the second and third applications were unmeritorious in light of this judgment, and therefore their pursuit was unreasonable in the circumstances. This caused the Commissioner to incur costs unnecessarily and therefore satisfied r 14.6(4)(a). |
Costs (application for indemnity costs granted).
|
|
Proceeding 13: tax issues related to statement of position
|
|||
CIV-2013-485-783
|
Mr Faloon filed an interlocutory application for leave to bring an
originating application pursuant to s 89M(11) of the Tax Administration
Act 1994
for an extension of time to reply to a Commissioner’s statement of
position under the tax dispute process.
Mr Faloon also filed an application to set aside the notice of opposition filed by the Commissioner for non-compliance with r 5.44 of the High Court Rules and an affidavit filed in support of this for containing inadmissible hearsay statements. |
Ronald Young J declined the application to set aside the notice of
opposition. The original application was non-compliant with r
5.44 of the High
Court Rules, but when a further notice was filed that was corrected. The
technical failure was of no prejudice
to Mr Faloon and the notice of opposition
was amended to provide for compliance. The application to set aside the
affidavit was
also declined as the statements in the affidavit were not
inadmissible hearsay as they were not adduced to prove the truth of
them.
The application for leave to bring the originating application was declined, as s 89M(11) only applied where the dispute procedure has been instituted by the Commissioner. Where it is the taxpayer that issued the notice of proposed adjustment, there is no right of reply to the Commissioner’s statement of position. Mr Faloon also complained that the Commissioner’s statement of position was not truly a statement of position, but this was not an appropriate or relevant matter for the Judge to rule on. It would be nonsense to consider any application under s 89M(11) seeking an extension of time given there was no right of reply to the Commissioner’s statement, and there could be no justification for allowing Mr Faloon to be given leave to file the originating application. |
Interlocutory (application for leave to bring originating application
declined; application to set aside notice of opposition and
affidavit
declined).
|
CIV-2013-485-783
|
The Commissioner sought indemnity costs in relation to Mr Faloon’s
interlocutory application for leave to bring an originating
application (see 34)
pursuant to r 14.6(4) of the High Court Rules.
|
Ronald Young J granted the application for indemnity costs on the basis
that the Commissioner had, by a letter, made an offer which
effectively would
have provided Mr Faloon with the opportunity he sought by virtue of his
originating application, which Mr Faloon
did not respond to. Further, the
application could never have succeeded, the proceeding being “misconceived
hopeless and unsuccessful”.
Mr Faloon was distracted by his
unmeritorious objection to documents filed by the Commissioner and timetabling
orders rather than
focusing on his application, and the primary purpose in
bringing these proceedings was to attempt to relitigate issues previously
determined.
|
Costs (application for indemnity costs granted).
|
|
Applications relating to proceedings 12 and 13
|
|||
|
Mr Faloon sought an extension of time to review a Registrar’s
decision that he lodge security for costs in respect of two appeals
(see 33 and
34).
|
Miller J declined the application for an extension of time on the basis
that no sufficient explanation had been advanced for the delay,
the original
application to dispense with security did not establish that it was in the
interests of justice to waive or reduce security,
and the merits were
weak.
|
Review of Registrar’s decision (application for extension of time to
review declined).
|
|
Mr Faloon applied for an extension of time to apply for the allocation of a
hearing date and to file the cases on appeal in respect
of two appeals (see 33
and 34).
As Mr Faloon had failed to pay security for costs, the Commissioner applied for an order striking out the appeals on the basis that the appeals were hopeless. |
The Court considered that Mr Faloon’s failure to pay security for
costs was particularly relevant because it prohibited him
from applying for the
allocation of a fixture and allowed the Commissioner to apply for an order
striking out the appeals, which
the Commissioner duly did.
The Court found that Mr Faloon had no statutory right to reply to the Commissioner’s statement of position, and therefore no prospect of successfully appealing Ronald Young J’s decision. The second appeal was similarly hopeless. Furthermore, Mr Faloon had ample time in which to pay security for costs, and had given no reasons for his failure to do so other than an assertion that his wallet was then empty. Given Mr Faloon’s failure to give security for both appeals, his applications for extension of time would be automatically barred: this factor in itself would operate as an absolute barrier to the Court exercising its discretion in Mr Faloon’s favour. |
Interlocutory (application for extension of time declined).
Strike out (application granted). |
|
Proceeding 14: issues around trustees of trusts created by the late Mr
Faloon’s will
|
|||
|
Mr Faloon’s statement of claim gave rise to three causes of action.
The first cause of action sought the appointment of a new
trustee for trusts
established by the late Mr Faloon’s will on the grounds that the Public
Trust had renounced probate, as
the Public Trust did not take “the
fee” to four “improved” lands, pursuant to s 31 of the Wills
Act 1837.
The second cause of action sought to apply for the appointment of a
“new trustee” to the trusts, as well as focusing
on the position of
the Public Trust as executor under the late Mr Faloon’s will, claiming
that the plaintiffs were aggrieved
by an act or omission of the “trustee
in renouncing probate of the will”, seeking relief in the form of a series
of declarations
under the Administration Act 1969 including granting Mr Faloon
the administration of the estate. The third cause of action sought
to have the
Court review acts and omissions or decisions of the Public Trust, essentially
repeating the complaint that the Public
Trust failed to “take the
fee” under the Wills Act, as well as that the Public Trust failed to
assert a purported interest
in the copyright to engineering plans which were
used as the basis for the stream.
The Public Trust applied to strike out the statement of claim pursuant to r 15.1 of the High Court Rules. |
Associate Judge Doogue struck out the first cause of action as the section
of the Wills Act did not apply in the circumstances, there
having been no devise
to a trustee. It was apparent that the plaintiffs did not rely on a specific
devise of land but rather sought
to imply that the equivalent of such a devise
occurred when the late Mr Faloon carried out improvements to land which was not
his.
Section 129 of the Land Transfer Act 1952 also had nothing to do with the
management of the late Mr Faloon’s estate and could
not give rise to any
entitlements for the late Mr Faloon or his successor. Furthermore, the pleading
was likely to cause prejudice
and delay and may have been vexatious as it was
largely unintelligible.
The second cause of action was also confused and unclear. The plaintiffs asserted that the trustee had misconducted itself in the administration of the estate. However, as the omission complained of was renouncing probate of the will under s 31 of the Wills Act, which had no application to the circumstances of the case, there were no grounds for removal of the trustee and its replacement. In respect of the third cause of action, the alleged omission was not concerned with anything the Public Trust was required to do, as the plans were likely to have been brought into existence by Trade Lines Ltd and not the late Mr Faloon, and more importantly, the late Mr Faloon and Trade Lines Ltd clearly consented to works being carried out on the basis of the plans. The time at which those two parties could have held out for compensation was before the works which the plans provided for were to be carried out. Additionally, any claim was likely to be subject to the statute of limitations. |
Strike out (application granted).
|
|
Mr Faloon sought to review the decision of Associate Judge Doogue striking
out his claim against the Public Trust (see 40). Mr Faloon
submitted at the
hearing that everything turned on the existence of a joint “special
power” held by the late Mr Faloon,
arising from a letter dated 18 August
1975.
|
Duffy J agreed with Associate Judge Doge that, looked at objectively, the
statement of claim did not disclose a reasonable cause of
action.
The Judge considered whether the statement of claim could, however, be refashioned into a coherent and intelligible pleading. Having regard to the 18 August 1975 letter, the Judge considered that the letter could not be construed as the source of the special power for which Mr Faloon contended, and neither Mr Faloon nor his father could have any legal claim to a pipeline in circumstances where the pipeline ran through land that was never owned by them. Any claim that might once have been made to the pipeline lay with the owner of the land, Trade Lines Ltd, and had been lost once the company was liquidated. As there was no basis for the special power, there could be no basis for a claim against the Public Trustee for failing to enforce this alleged power (by making the landowners through whose property the pipeline passes pay a fee to the holders of the special power relating to the pipeline). Further difficulties arose as the special power was unregistered and the delay in attempting to enforce it would in itself preclude any proceeding then being taken to do so. In addition, the Public Trustee completed his administration of the estate of the late Mr Faloon in the 1990s so it was too late to obtain directions from the Court requiring the Public Trustee to take any further step in administering the estate. All other allegations in the statement of claim hinged on the special power, so they were also without foundation. Consequently, the statement of claim was not capable of being refashioned into something on which a tenable claim could be based. |
Review of Associate Judge’s decision (application for review
declined).
|
|
Mr Faloon sought leave to cross-examine a senior trust officer for the
Public Trust who swore affidavits on behalf of the Public Trust
in support of
the strike out application under r 7.28 of the High Court Rules in respect of an
application for leave to appeal the
decision of Duffy J (see 41).
|
Asher J declined the application for cross-examination, noting that there
appeared to be no conceivable basis upon which, if leave
to appeal were granted,
leave to cross-examine the officer would be granted by the Court of Appeal in
the course of hearing the substantive
appeal (as the evidence would not be fresh
nor cogent), and therefore there was no good reason to order the attendance of
the officer
for cross-examination in the leave application.
|
Interlocutory (application for leave to cross-examine declined).
|
CIV-2010-470-52
|
Mr Faloon sought to review a costs judgment of Duffy J fixing costs against
Mr Faloon on a scale 2B basis following the decision declining
Mr Faloon’s
review application (see 39) on the basis that the costs order presented for
sealing by the Public Trust was incorrectly
dated.
Mr Faloon sought to raise other issues before the Court including revisiting the issue of costs, submitting that none of the parties were heard in relation to the order for costs in breach of r 7.43 of the High Court, and arguing that the heading of the order did not comply with r 5.12 as it differed from the heading of the statement of claim. |
Venning J ordered that the costs order be resealed and dated correctly,
thereby granting the application.
The Judge considered that there was nothing in any of the points Mr Faloon sought to make about the costs order. Rule 7.43 had no substantive application to the case, applying only to interlocutory orders made during the course of substantive proceedings, and the heading of the order followed the summarised form of intituling used by Duffy J in delivering both the substantive judgment and the costs judgment. In any event there was no basis to review costs as the costs award was to scale, and the Public Trust was entitled to costs as Mr Faloon had failed in his application to review the Associate Judge’s decision (see 39). The Judge also noted that the attempt by Mr Faloon to revisit the substantive merits of the proceedings in submissions was entirely inappropriate as the proceedings had been struck out. |
Costs (application for order that costs judgment be corrected
granted).
|
|
Proceeding 15: appeal against Taxation Review Authority
decision
|
|||
CIV-2015-485-289
|
Mr Faloon sought to appeal a decision of the Taxation Review Authority
holding that the Authority had jurisdiction to hear a strike
out
application by the Commissioner in respect of a “challenge” filed by
Mr Faloon.
The Commissioner opposed the appeal on the basis that the High Court had no jurisdiction to entertain an appeal from an interlocutory decision of the Authority. |
Brown J accepted the Commissioner’s argument that no appeal to the
High Court could lie from the Authority’s decision,
as it was plainly
an interlocutory decision and not a final determination of Mr Faloon’s
challenge proceeding. Consequently,
the appeal was dismissed.
|
Appeal (dismissed on jurisdictional grounds).
|
|
Proceeding 16: declarations relating to stream diversion
|
|||
ENV-2012-WLG-40
|
Mr Faloon applied for declarations pursuant to s 311 of the Resource
Management Act 1991 (RMA) that Palmerston North Airport Ltd (the
Airport
company) had diverted water contrary to the provisions of the RMA; that Mr
Faloon and his father were entitled to divert
a stream in accordance with a land
improvement agreement; that no duplicate of the land improvement agreement had
been provided to
Mr Faloon to enable registration against the title to the land;
that an Airport Crash Map No 4 was altered without Mr Faloon’s
consent; and that the Airport company had made no payment to Mr Faloon for
occupation of a diversion of the Kawau stream.
Mr Faloon also raised the issue of rehearing an appeal under the Town and Country Planning Act, which he alleged had been ordered by the Planning Tribunal. |
Judge Dwyer did not consider that the declarations other than the first
fitted within the ambit of s 310 of the RMA. The Judge therefore
struck out
those applications on the basis they disclosed no reasonable or relevant case in
respect of the proceedings.
In respect of the first declaration, the Airport company had indicated it sought to strike out Mr Faloon’s application in total, and therefore the Judge directed that it file and serve submissions to that effect. In respect of rehearing the previous appeal, the Judge indicated that it was highly unlikely the Court would undertake a rehearing at such a belated stage. However, the Judge was having the file investigated and would address that matter as part of the application for strike out proceedings. |
Strike out (application granted in part).
|
ENV-2012-WLG-40
|
Palmerston North Airport Ltd applied to strike out the remaining
declaration sought by Mr Faloon under s 311 of the RMA (see 44) —
that is,
that the Airport company had diverted water contrary to the provisions of the
RMA. In the event the application was not
struck out, the Airport company
sought security for costs.
|
Judge Dwyer considered it was apparent from Mr Faloon’s own
documentation that the proceedings were not brought to achieve any
discernible
resource management outcome, but rather as part of Mr Faloon’s
ongoing grievances about acquisition of the Trade
Lines Ltd land in 1993. The
Judge therefore determined that the application for declaration had been brought
vexatiously. The Judge
also considered that nothing in the material provided to
the Court disclosed any breach of s 14 of the RMA on the part of the Airport
company, and therefore Mr Faloon’s case disclosed no reasonable or
relevant case in respect of the declaration sought.
The combination of these two factors also meant it would be an abuse of process to allow Mr Faloon’s case to be taken further. Consequently the Judge struck out the proceedings. |
Strike out (application granted).
|
CIV-2012-485-2265
|
Mr Faloon appealed the strike out decision of Judge Dywer (see 44), on
the basis he should have been heard, his case was arguable,
and he had no
ulterior motive beyond ensuring compliance with s 14 of the RMA.
Mr Faloon also filed two interlocutory applications in relation to the proceedings, the first to set aside an affidavit and supporting memorandum filed by the respondent in response to Williams J’s request for more information about the runway diversion, and the second an application under r 7.9 of the High Court Rules. |
Williams J noted that the arguments on appeal were somewhat overtaken by
events, as it became clear during the hearing that Mr Faloon’s
case was
not, as the Environment Court had interpreted it, a challenge to the lawfulness
of the Faloon diversion, but rather a challenge
to the legality of the runway
diversion into the Faloon diversion. The Judge therefore proceeded
to consider afresh whether it was appropriate to strike out Mr Faloon’s
allegation on the papers.
First, Williams J concluded that there was no factual basis upon which Mr Faloon could establish that the airport company was in breach of s 14 of the RMA. To succeed he would have had to establish that the runway diversion was built after 1967 and without a permit under the Water Soil and Conservation Act 1967, which he simply could not do (it having been built in 1958 under the predecessor Act, at which time stream diversion was considered to be an incident of private ownership). Secondly, Williams J considered that despite the general principle that the party most affected by a strike out application is entitled to be heard in person except in the most exceptional cases, the principle that a hearing must have a point counted decisively against Mr Faloon — there was simply nothing he could have said at such a hearing that stood any chance of changing the results. Williams J declined both interlocutory applications. |
Appeal (dismissed).
Interlocutory (applications to set aside affidavit and memorandum and for directions under r 7.9 of the High Court Rules declined). |
|
Mr Faloon applied for special leave to appeal to the Court of Appeal
against the judgment of Williams J (see 45), on the basis that
the lower courts
had made three errors of fact which separately or collectively constituted an
error or errors of law, and which
satisfied the criteria for special leave to
appeal: the first, in relation to a reference to certain evidence in the
Environment
Court decision; the second in relation a finding by Williams J in
his substantive judgment that a portion of the Faloon diversion
was acquired by
the Airport company under the Public Works Act 1981; and the third from Williams
J’s leave judgment (declining
leave to appeal).
|
The Court declined the application for special leave to appeal, noting that
the first alleged error related to the Environment Court
decision and therefore
was not the subject of the proposed appeal; the second alleged error was clearly
not an error of fact (there
was no doubt that the Airport company acquired a
portion of the land, and it was not material whether this was under the Public
Works
Act or not); and the third alleged error was made in the leave judgment
and therefore could not possibly constitute a question of
law requiring the
Court’s determination.
|
Application for special leave to appeal (application declined).
|
|
Mr Faloon applied to recall the Court’s judgment declining his
application for special leave to appeal (see 46).
|
The Court declined the application for recall on the basis that Mr Faloon
sought to challenge substantive findings of fact made in
earlier judgments and
his application was irrelevant to whether his appeal raised a question of law
justifying special leave being
granted.
|
Recall (application declined).
|
ENV-2012-WLG-40
|
The Airport company sought indemnity costs in respect of the strike out
decision of Judge Dwyer in the Environment Court (see 44).
The issue of costs
was reserved until the determination of the High Court and Court of Appeal
proceedings.
|
Judge Dwyer considered that indemnity costs were appropriate due to the
following factors: arguments were advanced without substance;
the process of
the Court was abused; and the case was poorly pleaded or presented.
|
Costs (application for indemnity costs granted).
|
CIV-2015-485-734
|
Mr Faloon applied for an extension of time in which to file an appeal
against the costs decision of Judge Dwyer (see 48).
|
Brown J considered that the majority of Mr Faloon’s ground revisited
substantive issues rather than costs concerns, and there
was no requirement for
the Court to convene an oral hearing for the determination of costs in the
absence of any request to do so
(which there was no evidence of). None of the
additional matters raised by Mr Faloon at the hearing identified any question of
law
relevant to the question of costs. Brown J therefore declined the
application for leave to appeal out of time on the basis that
it would be a
fruitless exercise to grant leave when no question of law was engaged by the
proposed appeal.
|
Appeal (application for leave to appeal out of time declined).
|
|
Proceeding 17: patent issues
|
|||
CIV-2015-485-1
|
Mr Faloon sought to appeal “all the decisions of the Commissioner of
Patents” in an examination report following a patent
application made by
Mr Faloon. Mr Faloon also sought an order declaring that the Commissioner of
Patents, Trade Marks, and Designs
had made an error of law in a letter from 1987
relating to an earlier patent granted to Mr Faloon, for which he made an
application
for leave to appeal out of time and an application for joinder of
various parties to that appeal.
In respect of the examination report, the Commissioner of Patents, Trade Marks, and Designs applied for the appeal to be struck out on the basis that it disclosed no reasonably arguable grounds as the jurisdiction of the High Court was not engaged (there having been no decision in terms of either the Patents Act 1953 or the High Court Rules). |
In respect of the strike out application, Brown J found that
“decision” in the relevant sections of the Patents Act could
not
encompass an examination report as this was a preliminary step in the processing
of patent applications and therefore the appeal
was struck out.
Brown J declined the application for leave to appeal out of time the decision of the Commissioner of Patents as the relevant provision of the Patents Act contained no right of appeal, and in any case the person who may exercise the power described in the section was the Attorney-General not the Commissioner of Patents, Trade Marks, and Designs. In light of the decision not to grant the extension of time, Brown J also declined the request for joinder. |
Strike out (application granted).
Appeal (application for leave to appeal out of time declined). Interlocutory (application for joinder declined). |
|
Mr Faloon applied for leave to appeal the decision of Brown J striking out
his appeal (see 50).
|
The Court declined Mr Faloon’s application on the basis there was no
evidence whatsoever to support his submission that the
examiner’s second
report was in law the Commissioner’s decision on his patent application.
Rather, Mr Faloon’s
argument confused the function of the examiner with
the Commissioner’s decision making power, and in fact the second report
unequivocally outlined the further action open to the Commissioner before
determining the application. Mr Faloon’s application
for leave to
appeal did not identify a question of law for determination, let alone one
capable of bona fide and serious argument
involving a question of public
interest.
|
Application for leave to appeal (application declined).
|
|
Proceeding 18: bankruptcy adjudication
|
|||
CIV-2015-470-95
|
The Commissioner applied for Mr Faloon to be adjudicated bankrupt for
non-compliance with four bankruptcy notices, the debt in each
notice being an
order for costs made in proceedings between Mr Faloon and the
Commissioner.
Mr Faloon filed a notice of intention to oppose the applications, as a part of which he proposed that the proceeding be halted under s 38 of the Insolvency Act 2006, as well as making several technical objections and raising various arguments to suggest that an order adjudicating him bankrupt could not be made. Mr Faloon also took issue with the standard pleading in the bankruptcy application that the Commissioner had no security for debt and contended that the Commissioner was acting oppressively in bringing the bankruptcy application against him to prevent further litigation. |
Associate Judge Bell considered that, subject to Mr Faloon’s
grounds in opposition, the Commissioner had brought herself within
the
requirements of s 13 of the Insolvency Act. The Associate Judge considered that
none of the technical aspects raised by Mr Faloon
stood in the way of such a
finding. Furthermore, Mr Faloon did not enjoy any immunity from bankruptcy.
The security that Mr Faloon
was offering (based on the Palmerston North Airport
water diversion) was entirely speculative and therefore could not be taken into
account in the exercise of the discretion under ss 36 and 37 of the Insolvency
Act. Mr Faloon’s arguments relating to his
expectation that he may be
able to bring proceedings against the Crown that would give him relief more
extensive than the orders
for costs made against him (essentially an argument
for insolvency set-off) were rejected on the basis that Mr Faloon could not have
any prospect of success in trying to relitigate matters on which he had failed
so many times before. Furthermore, the Associate
Judge dismissed the submission
of oppression, there being no evidence that the Commissioner was acting in any
way improperly. Having
regard to factors in the general exercise of the
discretion under ss 36 and 37 of the Insolvency Act, including the lack of any
realistic
alternatives to adjudication, the need for accountability, the fact
that Mr Faloon had been adjudicated bankrupt once before and
the ultimate
outcome that the debts would be lifted off after the bankruptcy, Associate Judge
Bell was satisfied in all the circumstances
that an adjudication in bankruptcy
was appropriate and duly make an adjudication order.
|
Substantive (application for adjudication of bankruptcy granted).
|
CIV-2015-470-92-95
|
Mr Faloon applied to review the order made by Associate Judge Bell
adjudicating him bankrupt (see 52). He also applied to review
decisions
made by two Deputy Registrars of the High Court not to accept
“appeal” documents for filing.
|
Heath J held that there was no jurisdiction under s 414(1) of the
Insolvency Act for the High Court to review the decision to adjudicate
Mr Faloon
bankrupt. Rather, the decision needed to be appealed to the Court of
Appeal.
|
Review of Associate Judge’s decision (application for review
declined).
Review of Deputy Registrars’ decisions (application for review declined). |
|
Mr Faloon applied to review the Deputy Registrar’s decision to
decline his application to dispense with, reduce or defer payment
of security
for costs in respect of his appeal against the decision of Associate Judge Bell
(see 53).
|
Kós J declined the application for review, agreeing with the Deputy
Registrar that there was inadequate information to ascertain
whether Mr Faloon
was impecunious, and in any case the proposed grounds of appeal lacked merit
(therefore the appeal was not one
which a reasonable and solvent litigant would
prosecute). Furthermore there was no public interest warranting dispensation of
security.
|
Review of Deputy Registrar’s decision (application for review
declined).
|
CIV-2015-470-92
CIV-2015-470-93
CIV-2015-470-94
CIV-2015-470-95
|
Mr Faloon applied to have his bankruptcy adjudication suspended until the
Court of Appeal decided his appeal. He sought five orders
— the first two
were suspending orders, and then the remainder were to be conditions of any such
order. The third was an order
directing the Commissioner to make certain
findings under s HR6 of the Income Tax Act 2007, the fourth was for declaratory
orders
under s 25(3) of the Property (Relationships) Act 1976 and the fifth
was an order directing that alleged errors in a survey office
plan be corrected
under s 52(2)(c) of the Cadastral Survey Act 2002.
|
Associate Judge Bell considered the essential basis for Mr Faloon’s
suspension application to be that he wanted everything to
be put on hold,
including his appeal against the adjudication, while he continued with his other
proceedings that were on foot when
he was adjudicated bankrupt. This did not
provide a sound reason to suspend his adjudication pending hearing of the
appeal, as the
arrangements to put the litigation on hold were unlikely to cause
Mr Faloon to suffer undue prejudice if the proceedings were to
await the outcome
of his appeal, and the contrary position was likely to result in further
unnecessary litigation, particularly given
Mr Faloon’s litigiousness.
This was further supported by the factors to be taken into account in
determining a stay application
(an analogous procedure).
|
Interlocutory (application for suspension of bankruptcy pending appeal
declined).
|
|
Mr Faloon sought an extension of time to allocate a hearing and file the
case of appeal in respect of his appeal against Associate
Judge Bell’s
decision adjudicating him bankrupt (see 52).
Mr Faloon sought to defer the hearing of the appeal against the orders adjudicating him bankrupt to enable the bankruptcy suspension appeal to be heard first. |
The Court noted that in reality, Mr Faloon was seeking to indefinitely
delay the hearing of the appeal while he continued with his
proceedings in the
High Court — and therefore his reasons for the extension of time were
illegitimate. In addition, the Court
considered the merits of the proposed
appeal to be equally fatal to the application as the Court was satisfied his
appeal was hopeless,
being based primarily on arguments that had already been
heard and rejected on multiple occasions. A new argument, that various
entries
on the land register in respect of the land connected to the compulsory
acquisition process were invalid because they were
“disallowable
instruments”, was untenable.
|
Appeal (application for extension of time declined).
|
|
Mr Faloon applied to recall the Court of Appeal’s judgment declining
to grant an extension of time (see 56).
|
The Court declined the application for recall on the basis that the grounds
set out by Mr Faloon were simply an attempt to re-run
arguments already raised
at the hearing of the appeal and addressed in the judgment.
|
Recall (application declined).
|
|
Mr Faloon filed a second application for recall of the Court of
Appeal’s judgment declining to grant an extension of time (see
56).
|
The Court declined the application on the basis that Mr Faloon was
again seeking to advance arguments already raised and determined
in those
proceedings and in others.
|
Recall (application declined).
|
|
Mr Faloon sought leave to appeal the Court of Appeal decision declining to
grant an extension of time (see 56).
|
The Court declined Mr Faloon’s application for leave to appeal,
upholding the Court of Appeal’s finding that the basis
upon which Mr
Faloon sought an extension of time was illegitimate. Furthermore, given
Mr Faloon had not provided a credible argument
for challenging the view of
the Court of Appeal as to his reasons for an extension, the Court did not
consider it necessary to go
into that aspect of the case, although noting that
it was inclined to the view that, for the reasons given by the Court of Appeal,
the adjudication appeal could be regarded as truly hopeless.
|
Appeal (application for leave to appeal declined).
|
|
Proceeding 19: patent issues
|
|||
CIV-2016-485-129
CIV-2016-485-189
|
Mr Faloon applied under r 7.49 of the High Court Rules to vary or rescind a
decision of the High Court noting in a minute the dismissal
of Mr Faloon’s
proceedings due to the filing of notices of discontinuance by the Official
Assignee and recording that applications
by Mr Faloon to set aside both of the
certificates was declined.
|
Churchman J noted that Mr Faloon’s submissions did not engage with
the relatively limited circumstances in which r 7.49 can
be invoked to vary or
rescind an order or judgment and accepted that if Mr Faloon wished to challenge
any decision or action taken
by the Official Assignee in relation to his
bankruptcy, he could not do so in these proceedings, but only in the context of
the bankruptcy.
Churchman J also noted that in filing applications where he had
given no thought to the legal basis of the application Mr Faloon
was wasting the
Court’s time and that of the respondents, and if he persisted in such
activity he risked being declared a vexatious
litigant.
|
Application to vary or rescind decision (application declined).
|
[1] Henderson v Henderson [1843] EngR 917; (1843) 67 ER 313 (Ch). See also Commissioner of Inland Revenue v Bhanabhai [2006] NZCA 368; [2007] 2 NZLR 478 (CA) at [58]–[62]; Beattie v Premier Events Group Ltd [2014] NZCA 184, [2015] NZAR 1413 at [43]–[46]; Johnson v Gore Wood & Co [2002] 2 AC 1 (HL); and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160 at [17]–[26].
[2] Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [10]; and Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38.
[3] Faloon v Planning Tribunal [2018] NZHC 2420 [High Court judgment] at [4].
[4] Bank of New Zealand v Faloon HC Wellington M354/96, 18 October 1996; Faloon v District Land Registrar [1997] 3 NZLR 498 (HC); Faloon v Attorney-General HC Wellington CP310/99, 5 October 2000 (and associated judgments); Faloon v Commissioner of Inland Revenue [2002] NZHC 162; (2002) 20 NZTC 17,618 (HC); and Faloon v Palmerston North Airport Ltd [2012] NZEnvC 105 (and associated judgments).
[5] High Court judgment, above n 3, at [17].
[6] At [24]–[25].
[7] At [2].
[8] Commissioner of Inland Revenue v Faloon [2016] NZHC 760, (2016) 27 NZTC 22-076 at [30].
[9] Faloon v Commissioner of Inland Revenue [2016] NZCA 537, (2016) 27 NZTC 22-077 [Faloon v Commissioner of Inland Revenue (CA)]. Mr Faloon twice applied for recall of this decision: Faloon v Commissioner of Inland Revenue [2016] NZCA 588, (2016) 27 NZTC 22-083; and Faloon v Commissioner of Inland Revenue [2017] NZCA 5, (2017) 28 NZTC 23-003, and unsuccessfully sought leave to appeal to the Supreme Court: Faloon v Commissioner of Inland Revenue [2017] NZSC 65, (2017) 28 NZTC 23-014.
[10] Faloon v Palmerston North Airport Ltd, above n 4, at [11].
[11] Faloon v Public Trust HC Tauranga CIV-2010-470-52, 15 August 2011 at [7]–[10]. The existence of the joint “special power” has been discussed and rejected in a number of other proceedings, including: Faloon v Attorney-General, above n 4, at [19]–[22]; Faloon v Commissioner of Inland Revenue, above n 4, at [9]–[10]; and Faloon v Commissioner of Inland Revenue (2010) 24 NZTC 24,230 (HC) at [7], [15], [34] and [36].
[13] Faloon v Registrar of Companies HC Tauranga M53/02, 18 February 2003 at [8(c)] and [28]–[34].
[14] Faloon v Commissioner of Inland Revenue [2016] NZHC 2063 at [1].
[15] Faloon v Commissioner of Inland Revenue, above n 4, at [34]–[35].
[16] Faloon v Palmerston North Airport Ltd, above n 4, at [7]. Mr Faloon’s claim for compensation has also been discussed in the context of other proceedings, including: Faloon v Commissioner of Inland Revenue CIV-2009-470-319, 21 August 2009 at [14]–[18]; and Faloon v Commissioner of Inland Revenue, above n 4, at [30].
[17] Faloon v Public Trust HC Auckland CIV-2010-470-52, 30 September 2010 at [18]–[21].
[18] Re Faloon ex parte Bank of New Zealand HC Wellington B175/97, 12 August 1997 at 3.
[19] Faloon v Attorney-General, above n 4, at [22].
[20] See, for example, Faloon v Attorney-General, above n 4, at [17]–[22]; Faloon v Commissioner of Inland Revenue, above n 4, at [34]–[35]; and Faloon v Commissioner of Inland Revenue (CA), above n 9, at [25].
[21] Faloon v Attorney-General, above n 4; and Faloon v Commissioner of Inland Revenue, above n 4.
[22] Faloon v Planning Tribunal HC Palmerston North CIV-2018-454-77, 2 October 2018 (Minute of Mallon J) at [4].
[23] Senior Courts Act 2016, s 167(1).
[24] Genge v Visiting Justice at Christchurch Men’s Prison [2019] NZCA 583, (2019) 24 PRNZ 695 at [15].
[25] At [16].
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