SISSON v THE COMMISSIONER OF INLAND REVENUE [2016] NZCA 553

SISSON v THE COMMISSIONER OF INLAND REVENUE [2016] NZCA 553 [25 November 2016]IN THE COURT OF APPEAL OF NEW ZEALAND[2016] NZCA 553BETWEEN THERESE ANNE SISSONApplicantAND THE COMMISSIONER OF INLANDREVENUERespondentCounsel: Applicant in personJudgment:(On the papers)25 November 2016 at 10 amJUDGMENT OF WILD J[Review of Registrar's decision]The Registrar's decision refusing to accept for filing the notice of appeal is upheld.____________________________________________________________________REASONS[1] In a judgment he delivered on 5 October 2016, Associate Judge Osborne struck out a proceeding brought by Ms Sisson against the Commissioner of Inland Revenue.1 He did so because Ms Sisson was purporting to sue as a director of Chesterfields Preschools Ltd, but that Company had been placed in liquidation andits litigation rights had thus vested in the Company's liquidators.2[2] On 20 October Ms Sisson attempted to file in this Court a notice of appealagainst Associate Judge Osborne's decision. The Registrar declined to accept that1 Sisson v Commissioner of Inland Revenue [2016] NZHC 2367.2 Companies Act 1993, s 248.notice of appeal for filing, on the basis that any redress was by way of an application to the High Court to review the judgment, and not by way of appeal to this Court, pursuant to s 26P of the Judicature Act 1908. Ms Sisson, who does not accept theRegistrar's decision, seeks a review of it, pursuant to s 61A(3) of the Judicature Act,and r 7(2) of the Court of Appeal (Civil) Rules 2005.[3] Having reviewed the decision, I uphold it. This Court's successive judgmentsin Talyancich v Index Developments Ltd,3 Rewi v Attorney-General4 and Siemer v Heron5 establish beyond any doubt that the Registrar's decision is correct. In Rewithis Court said:[5] We are satisfied this Court has no jurisdiction to consider this appeal. In striking out the proceedings, the Associate Judge was exercising the powers of a Judge sitting in Chambers under s 26J of the Judicature Act 1908. The application to strike out the proceedings was interlocutory in nature. Any such application must be heard in Chambers unless a Judge otherwise directs.6 There is no suggestion that the Judge directed this matter be heard other than in Chambers. The decision was made on the papers as the applicant did not appeal.[6] By virtue of s 26P(2) of the Judicature Act 1908 there is no right of appeal from a decision made in Chambers.7 If the applicant wished to challenge the decision of the Associate Judge her only recourse was to seek a review of the decision under s 26P(1). She did not do so.[4] Applying that statement of the law here:(a) the Commissioner's application to strike out Ms Sisson's proceedingwas an interlocutory one;(b) Associate Judge Osborne's jurisdiction to deal with the application was a Chambers jurisdiction. It is the nature of the application and not the physical characteristics of the hearing or the dress of the Judge and counsel participating in it that determines the nature of the jurisdiction being exercised; and3 Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA).4 Rewi v Attorney-General [2010] NZCA 328.5 Siemer v Heron [2013] NZCA 599.6 High Court Rules, r 7.34.7 See New Zealand Defence Force v Berryman [2008] NZCA 392 at [4]; Vero Liability Insurance Ltd v Symphony Group & Ors [2008] NZCA 419 at [3].(c) a right of review by a High Court Judge, but not an appeal to this Court, lies from this decision made by the Associate Judge in exercise of his Chambers jurisdiction.[5] In the result, having reviewed the Registrar's decision, I uphold it.Solicitors:Meredith Connell, Wellington for Respondent