MAWHINNEY v THE COMMISSIONER OF INLAND REVENUE [2013] NZHC 1983
The affidavit sworn 3 August 2013 will not be read because it was filed well outside the timetable order, the lateness was effectively self‑induced by an experienced litigant, it causes prejudice to the Commissioner who would need opportunity to rebut factual assertions, and the alleged matters can be assumed from...
Source-derived case information.
- Citation
- [2013] NZHC 1983
- Parties
- Applicant: Peter William Mawhinney as trustee of The Forest Trust; Respondent: The Commissioner of Inland Revenue; Second Respondent: Registrar of the Taxation Review Authority
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 7 August 2013
- Procedural Posture
- Application Challenging Tax Decisions / Procedural Interlocutory Application / Interlocutory — Preliminary Ruling on Whether to Admit a Late Affidavit
- Outcome
- Application to have the affidavit (sworn 3 August 2013) read is refused.
- Legal Topics
- Admissibility of Affidavit Evidence, Compliance With Timetable Orders, Prejudice From Late Evidence, Jurisdictional Protest Procedure
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter William Mawhinney as trustee of The Forest Trust
Applicant
The Commissioner of Inland Revenue
Respondent
Registrar of the Taxation Review Authority
Second Respondent
Procedural Posture
Application Challenging Tax Decisions / Procedural Interlocutory Application / Interlocutory — Preliminary Ruling on Whether to Admit a Late Affidavit
Legal Issues
- 1 Whether to admit and read an affidavit filed out of time
- 2 Whether the applicant's late filing constitutes non‑compliance with a court timetable order
- 3 Whether the late affidavit causes prejudice to the Commissioner that warrants exclusion
Ratio Decidendi
The affidavit sworn 3 August 2013 will not be read because it was filed well outside the timetable order, the lateness was effectively self‑induced by an experienced litigant, it causes prejudice to the Commissioner who would need opportunity to rebut factual assertions, and the alleged matters can be assumed from the statement of claim for the jurisdictional protest rendering the affidavit unnecessary.
Court Disposition
Application to have the affidavit (sworn 3 August 2013) read is refused.
Orders
- Affidavit sworn 3 August 2013 is not to be read by the Court
- Timetable order of 19 June 2013 must be complied with in future proceedings
Full Case Text
Judgment text and source record
1 paragraphs
MAWHINNEY v THE COMMISSIONER OF INLAND REVENUE [2013] NZHC 1983 [7 August 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-2360[2013] NZHC 1983IN THE MATTER OF JUDICATURE AMENDMENT ACT 1972AND THE GOODS AND SERVICESACT 1985 AND THE TAXADMINISTRATION ACT 1994BETWEEN PETER WILLIAM MAWHINNEY ASTRUSTEE OF THE FOREST TRUSTApplicantAND THE COMMISSIONER OF INLANDREVENUECommissionerREGISTRAR OF THE TAXATIONREVIEW AUTHORITYSecond RespondentHearing: 7 August 2013Appearances: Applicant in personP Courtney and M Evans for Commissioner and SecondRespondentRuling: 7 August 2013RULING NO.1 OF COOPER JSolicitors:Crown Law Office, Wellington[1] A preliminary issue has been raised as to whether the Court should read what Mr Mawhinney has described as the fourth affidavit, which has very recently been filed. It is in fact only the second affidavit. Mr Mawhinney has explained that two other affidavits, which he would call affidavits two and three, were prepared but never served or filed.[2] The affidavit upon which he now seeks to rely, sworn on 3 August 2013, is over 400 pages long. It deals with matters that he claims to be relevant, but the Commissioner disputes. Not only does the Commissioner dispute the relevance, but she also says that there are factual matters asserted in the affidavit which, had there been time, she would have wanted to call evidence about so as to rebut it.[3] In this case there was a timetable order made on 19 June 2013. That order required at paragraph [5], that documents in opposition to the application be filed and served no later than 28 June 2013. This affidavit was filed on 5 August. It isvery late and Mr Mawhinney's only explanation of the lateness is that he has onlyrecently appreciated the need to deal with matters on which he would wish to rely by way of affidavit evidence.[4] I am not convinced that there is any basis upon which I should accept the affidavit. Mr Mawhinney, notwithstanding that he is a lay person, is a very experienced litigant and I assume that he realises that Court Orders, such as that which was made fixing the timetable, should be complied with.[5] The prejudice to him of not having the affidavit read is, in the circumstances, self-induced. However, it may not be important in any event having regard to the nature of the arguments that the Commissioner wishes to present and by that I mean to refer to the submissions in writing which would make matters such as when various notices under the Act were received, irrelevant.[6] It also seems to me that for the purposes of the protest to jurisdiction matter, allegations in the statement of claim to the extent that they relate to matters of fact ought to be assumed as being capable of being approved to the extent to which they are relevant.[7] In all the circumstances I am not prepared to read the affidavit in question.