BALICH V COMMISSIONER OF INLAND REVENUE HC AK CIV 2006-404-4113

BALICH V COMMISSIONER OF INLAND REVENUE HC AK CIV 2006-404-4113 9 May 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-4113UNDER the Judicature Amendment Act 1972 IN THE MATTER OF The Tax Administration Act 1994 BETWEEN DIANA BALICH Plaintiff AND THE COMMISSIONER OF INLAND REVENUE Defendant Judgment: 9 May 2007 at 11.30 amCOSTS JUDGMENT OF WINKELMANN JThis judgment was delivered by me on 9 May 2007 at 11.30 am pursuant to Rule540(4) of the High Court Rules. Registrar/ Deputy RegistrarD Balich, 13 Porter Crescent, Helensville Crown Law, Wellington[1] On 21 February 2007, I gave judgment in favour of the defendant Commissioner in proceedings where the plaintiff sought to review various decisions made by the Commissioner. I found that although most of the grounds of review advanced by the plaintiff had no merit, the Commissioner had committed one reviewable error. I found that the Commissioner had acted in a manner that was procedurally unfair in failing to provide the plaintiff with the opportunity to supply medical reports in support of her submission that there were exceptional circumstances explaining delay on her part so that she would be allowed to file a Notice of Proposed Adjustment outside the statutory response period. The Commissioner knew or should have known that the plaintiff believed that the Commissioner had medical reports to support that viewpoint, and should have advised her the reports were not on file. [2] I did not exercise my discretion to grant relief in favour of the plaintiff because I considered that the Commissioner's decision would not likely have been different if the medical reports had been placed before him and I also considered the plaintiff had delayed in bringing these proceedings. I held that requiring the Commissioner to reconsider his decision under s 89K would simply delay the plaintiff fulfilling the payment obligations that she undoubtedly had. [3] I provided a timetable as to the filing of submissions in relation to costs. The defendant has filed submissions but no submissions have been received from the plaintiff. [4] The defendant seeks an order for costs in his favour on a category 2B basis, but reduced by 25%, acknowledging that it would be just that there be some reduction in any award of costs to the Commissioner on the basis that: (1) The plaintiff was a litigant in person who has previously suffered a mental illness. (2) The Commissioner did make a reviewable error.[5] The Commissioner says that it is also to be taken into account that he was required to file extensive affidavit evidence due to the manner in which the claim was pleaded, and that I held that the substance of the plaintiff's claims were without merit. [6] I am satisfied that costs should follow the event in this proceeding and be awarded in the Commissioner's favour. I am also satisfied that category 2B costs are appropriate. The reduction of 25% submitted by the Commissioner is appropriate reduction to reflect the fact that the Commissioner did make, on my finding, a reviewable error. No greater reduction to reflect that is appropriate given that I found that the substance of the plaintiff's arguments were without merit. [7] Accordingly, the Commissioner is entitled to costs on a 2B basis in the sum of $10,000.00. Winkelmann J