MUIR V MAUDE [2016] NZCA 579
The Court of Appeal dismissed the recall application because it lacked jurisdiction to recall its earlier judgment after the Supreme Court had considered and dismissed the appeal (functus officio); the applicant's grounds were unarguable and the application amounted to an abuse of process, warranting an indemnity...
Source-derived case information.
- Citation
- [2016] NZCA 579
- Parties
- First Applicant: Garry Albert Muir; Second Applicant: Peter Arnold Maude; Respondent: Commissioner of Inland Revenue
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 5 December 2016
- Procedural Posture
- Judicial Review; Appeal and Recall Application / Application for Recall to Court of Appeal After Supreme Court Dismissal
- Outcome
- Application for recall dismissed; first applicant ordered to pay costs to the respondent on an indemnity basis together with usual disbursements.
- Legal Topics
- Judicial Review, Recall of Judgment, Functus Officio, Abuse of Process, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Garry Albert Muir
First Applicant
Peter Arnold Maude
Second Applicant
Commissioner of Inland Revenue
Respondent
Procedural Posture
Judicial Review; Appeal and Recall Application / Application for Recall to Court of Appeal After Supreme Court Dismissal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to recall its judgment after the Supreme Court considered and dismissed the appeal
- 2 Whether the applicant's grounds for recall are arguable
- 3 Whether the application constitutes an abuse of process and attracts an indemnity costs order
Ratio Decidendi
The Court of Appeal dismissed the recall application because it lacked jurisdiction to recall its earlier judgment after the Supreme Court had considered and dismissed the appeal (functus officio); the applicant's grounds were unarguable and the application amounted to an abuse of process, warranting an indemnity costs order.
Court Disposition
Application for recall dismissed; first applicant ordered to pay costs to the respondent on an indemnity basis together with usual disbursements.
Orders
- Application for recall dismissed
- First applicant ordered to pay costs to the respondent on an indemnity basis together with usual disbursements
Full Case Text
Judgment text and source record
1 paragraphs
MUIR V MAUDE [2016] NZCA 579 [5 December 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA276/2015[2016] NZCA 579BETWEEN GARRY ALBERT MUIRFirst ApplicantAND PETER ARNOLD MAUDESecond ApplicantAND COMMISSIONER OF INLANDREVENUERespondentHearing: 23 September 2015Court: Harrison, Dobson and Gilbert JJCounsel: First Applicant in personS J Leslie for RespondentJudgment: 5 December 2016 at 10 amJUDGMENT OF THE COURTA The application for recall by the first applicant is dismissed.B The first applicant is ordered to pay costs to the respondent on an application for recall on an indemnity basis together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)[1] In its judgment first delivered on 8 December 2015 this Court dismissed an appeal by the first and second applicants,1 Garry Muir and Peter Maude, against a judgment of Faire J in the High Court striking out his application for judicial review against the Commissioner.2[2] On 20 July 2016 the Supreme Court granted Mr Muir leave to appeal on two discrete questions.3 But on 26 August 2016 the Supreme Court declined Mr Muir'sapplication to amend his grounds of appeal, revoked its earlier decision and dismissed the appeal.4 On 7 November 2016 Mr Muir applied to this Court for an order recalling and reversing its judgment.5 In his submission this Court's decisionwas wrong because it failed to consider issues raised in his pleadings, notice of appeal and written submissions.[3] We agree with Ms Leslie for the Commissioner that this Court has no jurisdiction to recall its earlier judgment. That judgment has been the subject of an appeal to the Supreme Court. Leave was granted but the appeal was dismissed.6The merits of the Commissioner's application to strike out Mr Muir's application forjudicial review have been finally determined by the Supreme Court. This Court is now functus officio.7 And we agree with Ms Leslie that, even if we did have jurisdiction to recall, Mr Muir's grounds are unarguable.[4] We agree with the Commissioner that Mr Muir's application is an abuse ofthe process of this Court. We dismiss his application and order him to pay costs to the Commissioner payable on an application for recall on an indemnity basis together with usual disbursements.Solicitors:Crown Law Office, Wellington for Respondent1 Muir v Commissioner of Inland Revenue [2015] NZCA 591, (2015) 27 NZTC 22-034.2 Muir v Commissioner of Inland Revenue [2015] NZHC 792; (2015) 27 NZTC 22-0043 Muir v Commissioner of Inland Revenue [2016] NZSC 90, (2016) 27 NZTC 22-060.4 Muir v Commissioner of Inland Revenue [2016] NZSC 113, (2016) 27 NZTC 22-067.5 Mr Maude did not join Mr Muir's application for recall.6 Muir v Commissioner of Inland Revenue, above n 4, at [11].7 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [44].