ANDREW MILAN ILICH V COMMISSIONER OF INLAND REVENUE HC AK CIV-2009-404-000891

ANDREW MILAN ILICH V COMMISSIONER OF INLAND REVENUE HC AK CIV-2009-404-000891 1 March 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-000891BETWEEN ANDREW MILAN ILICH Applicant AND COMMISSIONER OF INLAND REVENUE Respondent Hearing: 1 March 2010 Counsel: Applicant in person T Molloy for the respondent Judgment: 1 March 2010(ORAL) JUDGMENT OF STEVENS JSolicitors/Counsel: Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140 Copy to: A M Ilich, PO Box 151, Pokeno 2440Introduction[1] Andrew Milan Ilich (the applicant) has made an application for leave to appeal to the Court of Appeal (the application) against the decision of this Court declining leave to appeal a decision of a Judge of the District Court: see Ilich v Commissioner of Inland Revenue (2009) 24 NZTC 23,556. [2] That decision concerned the applicant's application for special leave to appeal out of time against the decision of Judge Hole. It was heard in June last year and leave was refused on the basis that the applicant had completely failed to provide an adequate explanation for the 38 month delay in bringing the intended appeal, both in respect of the alleged physical, mental and financial difficulties referred to and his inability to obtain legal advice. While the length of the delay was extreme in all the circumstances, I did not consider that it was in the interests of justice to grant leave. As to the merits of the case, it seemed doubtful whether the proposed new evidence would have made any difference: see [44] – [46]. [3] The reasons for declining special leave were summarised as follows:[52] The appellant has completely failed to provide an adequate explanation for the delay in bringing the intended appeal. This is both in respect of the alleged physical, mental and financial difficulties and his inability to obtain legal advice. The intended appeal is most likely without merit. But this is not the determinative of the application. Here, the delay of 38 months was extreme in all the circumstances. It is not in the interests of justice to grant leave.Jurisdiction for the application[4] The applicant raised a number of grounds in support of his application. However, he did not specify the statutory provision under which the application was made. Presumably he was seeking to rely on s 67 of the Judicature Act 1908. Section 67 provides :(1) The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision— (a) to the Court of Appeal; or[5] The judgment to which this application relates was one which involved a declining of special leave to appeal out of time. It did not determine the application. In other words, it was not the determination of an appeal from an inferior Court. Thus, as Mr Molloy counsel for the respondent correctly identified, s 67 of the Judicature Act has no application. [6] Rather, it is s 66 of the Judicature Act which is relevant here. Section 66 provides that a right of appeal to the Court of Appeal exists against "any judgment, decree, or order save as hereinafter mentioned of the High Court":66 Court may hear appeals from judgments and orders of the High CourtThe Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the [High Court], subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.Applicable authority[7] In Simes v Tennant (2005) 17 PRNZ 684 (CA) the Court of Appeal at [39] noted that it was satisfied that there was no right of appeal against a decision of a lower Court refusing leave to appeal. However, at [42] the Court stated that a decision granting or refusing an extension of time for the bringing of an appeal is a "judgment, decree, or order" for the purposes of s 66 of the Judicature Act. The Court also added at [48]:We should not be taken as encouraging appeals against decisions of High Court Judge refusing extensions of time to appeal and even less so appeals against decisions granting extensions of time.[8] The Court of Appeal made the point that such decisions are discretionary and the threshold for success is high. But the key point is that it is the Court of Appeal, not the High Court, that must determine the issue. This is confirmed by the learned authors of McGechan on Procedure (Brookers online) at J66.03.Disposal[9] Accordingly the application is misconceived. The applicant has a right of appeal under s 66 of the Judicature Act to appeal directly to the Court of Appeal. There is no requirement to seek the leave of this Court before bringing such an appeal. [10] For these reasons, the application to this Court for leave to appeal to the Court of Appeal must be dismissed for want of jurisdiction.Costs[11] No application for costs was made on behalf of the respondent and no order is made. _________________________ Stevens J