RABSON V COMMISSIONER OF INLAND REVENUE HC WN CIV 2009-485-2222

RABSON V COMMISSIONER OF INLAND REVENUE HC WN CIV 2009-485-2222 9 February 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-485-2222IN THE MATTER OF The Child support Act 1991, s 20 BETWEEN MALCOLM EDWARD RABSON Appellant AND COMMISSIONER OF INLAND REVENUE Respondent Hearing: 8 February 2010 Counsel: R P Harley for Appellant R L Roff for Respondent Judgment: 9 February 2010JUDGMENT OF WILD J[1] For decision is an application by the appellant for leave to adduce further evidence. The application relates to Mr Rabson's appeal from a decision of Judge Walsh given in the Family Court at Porirua on 25 September 2009. [2] Judge Walsh's decision was itself on appeal, pursuant to s 103C Child Support Act 2001, against a Commissioner-Initiated Administrative Review (CIAR) decision on 31 July 2008. In that decision the review officer found special circumstances existed allowing a departure from the formula assessment for the appellant's child support income, and adopted a figure of $75,000. [3] As set out in his application, the grounds on which Mr Rabson applies for leave to call further evidence are:(a) The applicant was self represented throughout the proceedings;(b) The applicant failed to file evidence; (c) The Court may receive any evidence it thinks fit, whether it is otherwise admissible in a Court of law or not; (d) The evidence is relevant to the determination of the appeal; (e) It is in the interests of justice.[4] Ms Harley submitted that the application was governed by s 228 Child Support Act 1991, which provides:228 EvidenceIn any proceeding under this Act (other than criminal), and whether by way of hearing in the first instance or by way of appeal, or otherwise, the Court may receive any evidence that it thinks fit, whether it is otherwise admissible in a Court of law or not.[5] She submitted that the combined effect of s 228 and r 20.1(3) was to override r 20.16. Rules 20.1(3) and 20.16, respectively and relevantly, provide:HCR 20.1(3) This Part applies ... subject to any express provision in the enactment under which the appeal is brought or sought to be brought. HCR 20.16 (2) ... a party to an appeal may adduce further evidence only with the leave of the Court. (3) The Court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence related to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal. ...[6] Ms Harley argued that s 228 was an "express provision" within r 20.1(3), which overrode the effect r 20.16 would otherwise have. Ms Harley sought support for this argument in the Court of Appeal's judgment in Nation v Nation [2005] 3 NZLR 46:[165] This Court has power under s 39B(3) or the [Property Relationships Act] to receive further evidence if it thinks that the interests of justice require it to do so. This Court described the power under s 38B(2) as wider than thediscretion to allow further evidence under (now) R24 or the Court of Appeal (Civil) Rules 1997 in Castle v Castle [1980] 11 1 NZLR 14 at p 17 ...[7] I do not accept Ms Harley's argument. As Ms Roff submits, s 228 deals with the admissibility of evidence in proceedings under the Child Support Act. It does not prescribe a test, different from that set out in r 20.16, governing the introduction of fresh evidence on an appeal such as this. Nation v Nation provides no support for Ms Harley's argument, because s 39B Property (Relationships) Act 1976 is quite different in its terms from s 228. Section 39B provides:... (3) The High Court or the Court of Appeal may, if it thinks that the interests of justice so require, - (a) rehear the whole or any part of the evidence; or (b) receive further evidence.Unlike s 228, s 39B(3) is an "express provision" of the type envisaged by r 20.1(3), displacing r 20.16. [8] It follows that Mr Rabson's application is to be decided under r 20.16. I also accept Ms Roff's submission that r 20.16 is to be applied against well established case law. This establishes that, on an appeal such as this, further evidence should not be permitted unless it is relevant, cogent and fresh - fresh, in the sense that it could not (with reasonable diligence) have been called at the hearing before the District Court on 6 August 2009. [9] The further evidence Mr Rabson wishes to adduce on this appeal is the CIAR documents which were not before Judge Walsh. Ms Harley explained that Commissioner-Initiated Administrative Reviews of formula assessment of child support were introduced from 26 September 2006. The process involved an investigation by the Commissioner. It was that process which gave rise to the CIAR documents. [10] The nub of Ms Harley's argument was that the appellant, who represented himself in the Family Court, mistakenly thought that all the CIAR documents provided to him were before the Family Court. He confused discovery withevidence. In other words, he confused the making available of the CIAR documents to him, with the putting of those documents in evidence in the Family Court. Ms Harley submitted baldly "the appellant has adduced no evidence". [11] Ms Harley accepted that the evidence Mr Rabson now wishes to adduce was in his control at all relevant times. She said there was no challenge to Judge Walsh's decision in terms of the evidence which was before him. [12] Ms Harley also invited me to adopt the course taken by Dobson J in a judgment he delivered on 19 December 2008 in a proceeding under the Property (Relationships) Act between Mr Rabson, his partner, and a family trust. Dobson J granted Mr Rabson leave to appeal out of time from a decision of the Family Court. Mr Rabson had chosen not to attend the hearing before the Family Court or to have legal representation at it. The Family Court Judge had commented that Mr Rabson was attempting "to hijack the process". Dobson J accepted that there was no point in granting leave to appeal unless Mr Rabson could adduce, at the appeal hearing, the evidence that he had not adduced to the Family Court. Accordingly, Dobson J granted Mr Rabson leave to do that. [13] As Dobson J makes clear in [29] of his judgment, the provision relevant to his decision was s 39B(3) Property (Relationships) Act, to which I have already referred. It is not the provision relevant here. Dobson J's decision thus provides no support to Ms Harley's argument on the present application. [14] In paragraphs [3]-[7] of his decision, Judge Walsh dealt in detail with the position as to evidence in the Family Court. Rather than setting out those paragraphs, I summarise them in this way:• Mr Rabson represented himself on his appeal to the Family Court.• He filed his appeal (out of time) on 17 October 2008, but did not file his supporting evidence until 5 November 2008.• On 3 December 2008, when giving Mr Rabson leave to appeal out of time, Judge Ullrich directed Mr Rabson to file any further evidence by 24 December 2008.• At a pre-trial conference on 15 April 2009, Judge Ullrich noted that Mr Rabson had filed a "statement of evidence", but now advised that he wished to call another witness. The Judge directed him to file an affidavit by that witness by 29 April 2009, which he did. He did not file any further affidavit of his own.• Subsequently Mr Rabson applied to have two officers from Inland Revenue summoned for the hearing. On 28 July 2009 Judge Mill declined to issue a summons for either witness unless Mr Rabson advised how their evidence had any bearing on the issue to be determined by the Family Court. It is not clear to me whether Mr Rabson offered any explanation, but on 30 July 2009 Judge Ullrich issued a minute declining to summon the officers, and giving her reasons.• At the hearing on 6 August 2009, Judge Walsh told Mr Rabson that he was concerned that Mr Rabson had not filed any further affidavit evidence in support of his appeal. The Commissioner had filed a comprehensive affidavit sworn on 23 January 2009. This annexed "a number of exhibits, including the CIAR file". That file had been forwarded to Mr Rabson on 18 June 2008. Judge Walsh rejected Mr Rabson's complaint that he had been given insufficient time to file a detailed affidavit in reply. In particular, the Judge made the points:1. Since June 2008 he has been in possession of the CIAR file containing all the documentation relied upon by the Commissioner for the review hearing on 11 July 2008. 2. At all times the appellant has either been in control or possession of information that could be produced in evidence to support his appeal.3. On two occasions timetabling directions were made. Between 3 December 2008 and 29 April 2009 I consider the appellant had ample time to produce further evidence by way of affidavit in support of his appeal.[15] Judge Walsh recorded his concern that Mr Rabson was being evasive during the hearing, and that he had put Mr Rabson on notice that he (the Judge) had formed that view. The Judge said this at [7]:...The fixture was allocated on 17 June 2009; again I consider the appellant had ample time to prepare for the hearing. He maintained he was at a disadvantage because he was without legal representation and claimed he was unable to get legal representation. While the Court is always conscious self-represented litigants may be at a disadvantage, I am satisfied in this case the appellant understood fully the issues involved and the need for him to provide evidence either within his control or possession in support of the appeal.[16] In the face of all that, Mr Rabson cannot point to "special reasons for hearing the evidence" he now wishes to adduce on this appeal. On the contrary, he was in possession of all of that evidence from 16 June 2008 – over 13 months before the hearing in the Family Court. He was given several opportunities to adduce any evidence that he wanted. [17] I reject Ms Harley's submission that Mr Rabson mistakenly thought that all the documents on the CIAR file which had been sent to him were in evidence before the Family Court. By reading the affidavit sworn by the Commissioner on 23 January 2009 and its attachments, he would immediately have seen that that was not the case. [18] For those reasons I decline Mr Rabson's application for leave to adduce further evidence on his appeal. [19] I order Mr Rabson to pay the Commissioner's costs of this application on the 2B basis already agreed to (counsel's consent memorandum of 19 November 2009). [20] I have noted Ms Harley's concession that Judge Walsh's decision cannot be faulted, based on the evidence he had. As I have ruled out further evidence, I take it that Mr Rabson's appeal will now be abandoned. I direct Ms Harley to address thisposition by 19 February, either by filing a notice of abandonment, or otherwise advising the appellant's position.Solicitors: Waikanae Law, Waikanae for the Applicant Crown Law Office, Wellington for the Respondent