FALOON V COMMISSIONER OF INLAND REVENUE HC TAU CIV-2009-470-0319

FALOON V COMMISSIONER OF INLAND REVENUE HC TAU CIV-2009-470-0319 9 September 2009IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CIV-2009-470-0319BETWEEN CLARENCE JOHN FALOON AND RUTH ENID FALOON Applicants AND COMMISSIONER OF INLAND REVENUE Respondent Hearing: Determined on the papers Judgment: 9 September 2009 at 10:30 amJUDGMENT OF ASHER J [COSTS]This judgment was delivered by me on 9 September 2009 at 10:30 am pursuant to Rule 11.5 of the High Court Rules .. Registrar/Deputy Registrar .. DateSolicitors: C & R Faloon, 68 Waikite Road, Welcome Bay, Tauranga 3112 Crown Law Office, PO Box 2858, Wellington 6140[1] Clarence John Faloon and Ruth Enid Faloon have sought an order that my judgment of 21 August 2009 be recalled under "r 11.5" of the High Court Rules. This appears to be an error, and I assume they are referring to r 11.9, which is referred to late in their application. [2] The grounds put forward are difficult to discern but include assertions that the judgment contradicts statements and "official information" supplied by public authority in 1998, and derogates from the provisions of the Public Works Act 1981. The application for recall, like the application for extension of time which is dealt with in the substantive judgment, again covers issues relating to the long-running dispute and litigation between Mr Faloon and the Commissioner. [3] The rule itself does not set out the basis upon which a judgment can be recalled. The principles to be applied were discussed by Wild CJ in Horowhenua County v Nash (No. 2) [1968] NZLR 632. At p 633 he stated:Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.[4] None of the points made by Mr Faloon fall within any of the first two categories mentioned by Wild CJ. There has been no amendment to a relevant statute or regulation or a new judicial decision of relevance since the hearing, and there has been no failure of counsel to direct the Court's attention to a legislative provision or authoritative decision of plain relevance. [5] In relation to the third category, which includes non-contentious mistakes, no issue arises. Mr Faloon appears to be putting forward the same old arguments.[6] As I mentioned in relation to a previous application for recall (Faloon v Commissioner of Inland Revenue HC TGA CIV-2005-470-508 30 March 2006) at [16]: No proper basis has been put forward by Mr Faloon for the recall of this judgment, which is yet another attempt in a different form to litigate the same issues that he has been pursuing since 1996.No proper basis has been put forward on this occasion that gives rise to the application of r 11.9.Result[7] The application is dismissed.Costs[8] The Commissioner is entitled to costs on a 2B basis. This particular application involved only the filing of a notice of opposition. There was no hearing, and the plaintiffs are to pay costs on that basis. I decline the Crown's request for costs on an indemnity basis. Asher J