FALOON AND ORS V THE COMMISSIONER OF INLAND REVENUE HC TAU CIV 2009-470-885

FALOON AND ORS V THE COMMISSIONER OF INLAND REVENUE HC TAU CIV 2009-470-885 11 June 2010IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CIV 2009-470-885UNDER the Tax Administration Act 1994 BETWEEN CLARENCE JOHN FALOON First Plaintiff AND RUTH ENID FALOON Second Plaintiff AND TRUSTEES IN THE 1977-YEAR DIVERSION OF THE KAWAU STREAM TRUST Third Plaintiff AND THE COMMISSIONER OF INLAND REVENUE Defendant Telephone conference: 11 June 2010 Appearances: C J Faloon in person and on behalf of the 2nd and 3rd Plaintiffs JAL Oliver for the Defendant Judgment: 11 June 2010 at 4:45 p.m. Reasons: 11 June 2010JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 11 June 2010 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985. Registrar/Deputy Registrar Solicitors / Parties: Mr C J Faloon, Tauranga Mr JAL Oliver, Crown Law, Wellington[1] A conference was convened this morning to deal with a number of applications filed in this Court by Mr Faloon on behalf of the plaintiffs. These arise out of the decision of Associate Judge Christiansen of 29 April 2010 striking out the plaintiffs' causes of action and dismissing the proceeding. [2] The principal applications of the plaintiffs now before the Court are the following: a) An application dated 3 May 2010 described as: "Interlocutory application by 3 Plaintiffs for Orders to set aside Judgment delivered 29 April 2010 which does not comply with the High Court Rules". b) An interlocutory application dated 6 May 2010 described as: "Amended Interlocutory Application by 3 Plaintiffs under Rule 2.3 to review all the orders or decisions made by His Honour Associate Judge Christiansen in the Judgment delivered on Thursday 29 April 2010 at 2:30 pm". [3] There are some further documents filed by the plaintiffs following delivery of the judgment on 29 April 2010. None of these raises live issues and Mr Faloon did not contend otherwise.The 3 May application[4] This application and one other (no longer relevant) was referred to Associate Judge Christiansen. He responded by minute dated 5 May 2010. He said, in respect of the 3 May application:[2] In one document he applies to set aside my judgment on the basis that it "is irregular in that it does not comply with the High Court Rules". The rest of that document advances those very same reasons he offered to me previously in his defence of the strike out application. [4] If Mr Faloon's documents are meant to invite me to recall my judgment, then I refuse to do so. The appropriate way for Mr Faloon to address his concerns is to appeal. In the meantime there appears nothing to prevent the Commissioner from sealing the judgment. No appropriate reason has been provided for me to consider restricting publication of my judgment in any way.[5] I advised Mr Faloon that I considered that Associate Judge Christiansen's decision disposed of that application; in other words, there is no basis upon which it can be further considered by the High Court. Mr Faloon submitted that the application is a live one because it should be dealt with by a Justice of the High Court. I am satisfied that this application is at an end so far as the High Court is concerned. The principal reason is that it has been dealt with by Associate Judge Christiansen. In addition, I am satisfied that the application does not raise any issue distinct from an issue that might be raised on an application for review of, or appeal against, Associate Judge Christiansen's decision. [6] Mr Faloon made clear that the plaintiffs were relying on r 1.5 in support of the 3 May application, and in particular r 1.5(4). This rule is not available as a device to avoid the rules relating to applications for review of, or appeal against, decisions of Associate Judges.Application of 6 May for review of the Associate Judge's decision[7] Rule 2.3 prescribes the procedure on applications for review of decisions of Associate Judges. Rule 2.3(2) provides:Unless a Judge or an Associate Judge directs otherwise, notice of the application must be filed and served,— (a) if it is made by a party who was present or represented when the order was made or the decision was given, within 5 working days of the order being made or the decision being given; or (b) if it is made by a party who was not present or represented, within 5 working days after the receipt by that party of notice of the making of the order or the giving of the decision.[8] The application for review was filed within the time limit but it was not served within the time limit. In a memorandum for the defendant, Mr Oliver advised that the application for review was not served on the defendant until 28 May 2010 (although informal notice had earlier been received because copies had been provided by a deputy registrar). [9] Rule 2.3(2) must be complied with in the absence of a direction from a Judge or Associate Judge "otherwise". No application for extension of time had been filed for the plaintiffs prior to the conference although the plaintiffs had had ample notice of the objection taken. Notice was given in a memorandum for the defendant dated 11 May 2010. I asked Mr Faloon if he was now applying for an extension and he said that he was. [10] The commentary to r 2.3 in McGechan (and to the broadly corresponding r 7.49) makes clear that strict compliance with the time limits is generally required, and for the reasons recorded in the commentary. Extensions of time may be granted if the delay has not been extensive, there is an adequate explanation for the delay, there is no material prejudice to the other party, and there is merit in the application. [11] There was no adequate explanation for the delay. Mr Faloon did say that he had had to work hard to get the document filed in time, but that does not provide an explanation for the failure to serve it as required by the rule. Although Mr Faloon is a lay litigant, it is abundantly clear that he is very familiar with the Rules. I also consider that there is no merit in the application. The reserved judgment of Associate Judge Christiansen is, with respect, a careful judgment providing compelling reasons for the proceeding to be struck out. [12] There is a further consideration to which I attach weight against granting the indulgence of an extension of time. Associate Judge Christiansen held that the proceeding he struck out amounted to an attempt to re-litigate matters which have been before the High Court and the Court of Appeal in different forms over a number of years. I do not intend in this judgment to summarise the earlier judgments. Mr Oliver advised in the course of the conference that the total of judgments of the courts in proceedings initiated by Mr Faloon is around 22. Some ofthe earlier judgments are referred to in the decision of Associate Judge Christiansen, and including statements of other Judges directed to the fact that attempts were being made on earlier occasions to re-litigate matters already dealt with and abuse of process. Since Associate Judge Christiansen's decision there has been a decision of the Court of Appeal in another proceeding by Mr and Mrs Faloon against the Commissioner of Inland Revenue 1 . In this judgment Arnold J said. At [14]:It is to be noted that Mr Faloon features in one of the cases cited as involving an applicant attempting improperly to re-litigate a dispute. In that case, Asher J held:2No 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. The application is dismissed. In the light of that, not only is the present application not in the public interest, it borders on an abuse of process.[13] For these reasons I am satisfied that there should be no extension of time to serve the application for review. [14] As a result there is no live matter in this proceeding before the High Court, save for an outstanding issue of costs arising from Associate Judge Christiansen's decision. All applications are dismissed and no further document is to be filed by or for the plaintiffs apart from a memorandum on costs. [15] A memorandum in support of an application for costs was filed for the defendant on 2 June 2010 and presumably served on or about that date. In accordance with the Associate Judge's decision, the plaintiffs have 2 weeks to file any memorandum in response. If the memorandum is filed it should be directed solely to the question of the quantum of costs. It should not be directed to the merit of the decision. [16] The defendant is entitled to costs in respect of the further applications. There is an application for costs of $1,000 as a contribution to the additional costs incurred in dealing with the review application. Two memoranda have been filed for the1 Faloon v Commissioner of Inland Revenue [2010] NZCA 223, 31 May 2010.2 Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [16].defendant and Mr Oliver's attendance was required for the conference. I direct the plaintiffs pay the defendant's costs on these further applications in the sum of $750. _____________________________ Peter Woodhouse J