FALOON V THE COMMISSIONER OF INLAND REVENUE HC TAU CIV-2011-470-878

FALOON V THE COMMISSIONER OF INLAND REVENUE HC TAU CIV-2011-470-878 [28 May 2012]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCIV-2011-470-878[2012] NZHC 1154UNDER the Judicature Act 1908IN THE MATTER OF an application for the "extraordinaryremedy" of an order of prohibition underPart 30 of the High Court RulesBETWEEN CLARENCE JOHN FALOONPlaintiffAND THE COMMISSIONER OF INLANDREVENUEDefendantHearing: 7 February 2012(Heard at Hamilton)Appearances: Plaintiff in personJ A L Oliver and K Ross for DefendantJudgment: 28 May 2012JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 28 May 2012 at 2 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Crown Law, Wellington: kristen.ross@crownlaw.govt.nzCounsel: J A L Oliver, Barrister, Wellington: john.oliver1@xtra.co.nzCopy for: C J Faloon: randcfaloon@clear.net.nz[1] The Applicant ("the Commissioner") seeks an order striking out the Respondent's ("Mr Faloon") statement of claim and dismissing the proceeding. Theorder to strike out is sought on the grounds that the statement of claim discloses no reasonably arguable cause of action, is frivolous or vexatious or is otherwise an abuse of the process of the Court.1[2] In his statement of claim dated 20 October 2011, Mr Faloon seeks an order pursuant to Part 30 of the High Court Rules. In particular, Mr Faloon seeks an order prohibiting any further hearing of a quite separate proceeding, CIV-2010-470-922("CIV 922").[3] CIV 922 is a proceeding that Mr Faloon commenced against the Commissioner in 2010. The Commissioner made the same application in respect of the statement of claim and proceeding as is before me in this proceeding. In November 2011, an Associate Judge granted the Commissioner's applications inCIV 922. I heard and dismissed Mr Faloon's application to review the Associate Judge's decision in February 2012.[4] Accordingly, aside from anything else, the order that Mr Faloon seeks in this proceeding has been overtaken by events.[5] I should, however, also refer to the basis on which Mr Faloon seeks the order referred to in [2]. Mr Faloon pleaded in this proceeding that the Commissioner was not entitled to pursue an application to strike out in CIV 922, because the Commissioner had not filed a statement of defence to an amended pleading that Mr Faloon had filed in CIV 922.[6] There is no requirement that a party who seeks to strike out a pleading must first file a statement of defence. Accordingly, the present proceeding has never had any prospect of success.1 High Court Rules, r 15.1(1).[7] I make orders striking out the statement of claim dated 20 October 2011 and dismissing the proceeding.[8] Costs are to lie where they fall...................................................................M Peters J