RADIOWORKS LIMITED V THE COMMISSIONER OF INLAND REVENUE COA CA32/2011

RADIOWORKS LIMITED V THE COMMISSIONER OF INLAND REVENUE COA CA32/2011 4 April 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA32/2011[2011] NZCA 129BETWEEN RADIOWORKS LIMITEDFirst ApplicantAND TVWORKS LIMITEDSecond ApplicantAND THE COMMISSIONER OF INLANDREVENUERespondentHearing: 15 March 2011Court: Chambers, Randerson and Wild JJCounsel: M R Heron and A A Whitehouse for the ApplicantsM S R Palmer, J M Coleman and R L Roff for the RespondentJudgment: 4 April 2011 at 11:00 AMJUDGMENT OF THE COURTA The application for special leave to appeal is granted.B The appeal is formally allowed, and the 18 June 2010 judgment of the High Court quashed.C The parties are to file memoranda in accordance with the direction Associate Judge Abbott gave them on 27 July 2009.D There is no order as to the costs of the application.REASONS OF THE COURT(Given by Wild J)[1] Pursuant to s 26P(1AA) of the Judicature Act 1908, the two applicants apply for special leave to appeal to this Court. They wish to appeal from a judgment of Courtney J delivered on 18 June 2010.1 Having reviewed a 27 July 2009 decision of Associate Judge Abbott, Her Honour upheld that decision.2 Courtney J declined the applicants leave to appeal.3[2] First, a preliminary issue we raised with counsel. Does this Court have jurisdiction under s 26P(1AA) to entertain the applicants' application for specialleave? Section 26P(1AA) founds jurisdiction on there being a "determination of the High Court on a review". Courtney J concluded her judgment thus:4The application for review in respect of the general discovery order is therefore dismissed.That is a "determination" of the High Court sufficient to found jurisdiction toentertain the present application. So we answer the jurisdictional issue "Yes".[3] However, a difficulty arises because we have concluded that Associate Judge Abbott did not make an order or decision which was capable of review by a High Court Judge under s 26P(1) of the Judicature Act 1908, which provides:(1) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in chambers may apply to the Court to review that order or decision ...[4] In her determination Courtney J referred to "the general discovery order". Infact, Associate Judge Abbott had not made an order. What he said was this:5I am satisfied that an order for discovery is appropriate. Counsel did not address me on the terms of any order (and particularly as to whether or not it was necessary to list all of the documents provided informally, or in the lists attached to the statements of position). I would not have thought it a major task to incorporate the lists in the statements of position into an affidavit of documents. However, I have no knowledge of what further documents the plaintiffs may have voluntarily provided to the Commissioner. I will make an order either on the filing of a joint memorandum (or separate memoranda1 Radio Works Ltd v CIR HC Auckland CIV 2007-404-5853, 18 June 2010.2 Radioworks Ltd v CIR (2009) 24 NZTC 23,691.3 Radio Works Ltd v CIR HC Auckland, CIV 2007-404-5853, 7 December 2010.4 At [77].5 At [98].if counsel cannot agree). The memorandum or memoranda are to be filed within 14 days.[5] The parties did not file a joint memorandum or separate memoranda as directed, or otherwise revert to the Associate Judge. The Associate Judge made no order capable of being enforced. "Interlocutory order" is defined in r 1.3 of the HighCourt Rules as meaning "an order or a direction of the Court ... given for thepurposes of a proceeding ... and (which) concerns a matter of procedure ...".Associate Judge Abbott did not make an order. The only direction he gave to the parties was to file a joint memorandum or separate memoranda within 14 days.[6] A direction to file a memorandum or memoranda to enable the Court to frame an appropriate order is not an "order or decision" encompassed by s 26P(1).Association of Dispensing Opticians of New Zealand Inc v Opticians Board is the leading authority.6 In the context of interpreting the words "judgment, decree, or order" in s 66 of the Judicature Act 1908, this Court said:7... rulings made either in the course of the hearing of the proceeding (using that term in a broad sense, including for example an adjournment application), or as part of the trial conduct or management process would not ordinarily be susceptible to interlocutory appeal. On the other hand rulings which have some substantive effect on rights and liabilities in issue would be. Obviously the boundary lines will not be cut and dried ...Associate Judge Abbott's direction to file a memorandum or memoranda cannot besaid to have had any substantive effect on the rights and liabilities in issue in this proceeding. It is not even a trial conduct or management process ruling of the type held not to be amenable to instant appeal.8[7] Noteworthy are two earlier decisions of the High Court. First, in Wellington City Council v Australian Mutual Provident Society9, Jeffries J refused to entertain an appeal where the Planning Tribunal had required further memoranda from counsel for the parties on two legal points before making a final decision. Counsel had not6 [2000] 1 NZLR 158.7 At [36].8 At [36], and earlier at [34].9 HC Wellington AP47/91, 15 May 1991.filed memoranda. Instead, the Council had appealed. In rejecting the appeal as misconceived, Jeffries J explained:10... What is plain in my view is that the Tribunal has not yet made "any determination" whether it be erroneous or not. ...[8] The second case is Queenstown Lakes District Council v J F Investments Ltd (Queenstown Lakes.)11 The Council had appealed from a decision in which theEnvironment Court had indicated it "considered it appropriate to allow the appeal and grant consent to the proposal, subject to conditions to be agreed".12 Doogue J considered the appeal to be premature. He said:13[9] ...There is no decision by the Environment Court as to what conditions, if any, it will impose on any resource consent. ...[10] The appeal contains no legal challenge to the Environment's Courtpower to grant consent. It is limited to the terms of that consent. Those terms are not yet known. ...[11] I therefore hold that at the present time the Court has no jurisdiction toentertain the Council's appeal and it must be dismissed.[9] There is a practical reason why a right of review should not be available until an order in final form is made. This case illustrates the point. The form of the discovery order the Associate Judge makes might be so framed as to be satisfactory to both parties. Alternatively, the Judge on review, and this Court on appeal, might well find the form of the order to be influential in the outcome.[10] In the result, we allow the application for special leave to appeal. But, because this Court's jurisdiction to deal with the appeal itself is circumscribed –because it is an appeal from a judgment given without jurisdiction – it will not be appropriate to enter into the merits of the appeal. The appropriate course is formally to allow the appeal now, to quash the judgment of Courtney J delivered on 18 June 2010, and to direct the parties to file memoranda in accordance with the direction Associate Judge Abbott gave them on 27 July 2009.10 At 7.11 HC Invercargill CIV 2004-485-2278, 18 March 2005.12 At [3].13 At [9]-[11].[11] It was the applicants who applied to the Associate Judge for an order that the Commissioner was not entitled to an order for discovery. This, counsel explained to us, was because counsel for the Commissioner had previously "persuaded" theAssociate Judge that the Commissioner was entitled to discovery. Given that the Associate Judge, in his decision, affirmed the Commissioner's entitlement to anorder for discovery, on terms he has yet to fix, we consider the primary responsibility of reverting to the Associate Judge and obtaining a formal order lay with the Commissioner. Instead, the matter has come as far as this Court in the misconceived way we have outlined. In those circumstances, we make no order for costs.Solicitors:Russell McVeagh, Auckland for the ApplicantsCrown Law Office, Wellington for the Respondent