Dowden v Commissioner of Inland Revenue
[2020] NZCA 630
•8 December 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA624/2019 [2020] NZCA 630 |
| BETWEEN | JOHN ALFRED DOWDEN |
| AND | COMMISSIONER OF INLAND REVENUE |
| Court: | Miller and Courtney JJ |
Counsel: | Applicant in person |
Judgment: | 8 December 2020 at 10 am |
JUDGMENT OF THE COURT
The application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is declined.
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REASONS OF THE COURT
(Given by Courtney J)
Mr Dowden has applied for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 for the allocation of a hearing date and to file the case on appeal.
Mr Dowden filed his notice of appeal on 29 November 2019. He was granted a number of extensions by the Deputy Registrar. However, Mr Dowden failed to pay the scheduling fee by 13 July 2020 as required and also failed to consult with the respondent when preparing the case on appeal as required. As a consequence, he was precluded from seeking a hearing date and the appeal was treated as having been abandoned.[1] Mr Dowden was advised that his appeal had been abandoned and, subsequently, that he could apply for an extension of time to file the case on appeal and pay the scheduling fee. This is the application for determination.
[1]Court of Appeal (Civil) Rules 2005, r 43(1).
The principles that govern an application for an extension of time to file a case on appeal and apply for a fixture were explained by the Supreme Court in Almond v Read.[2] The ultimate question when considering the exercise of the discretion to extend time is what the interests of justice require. Factors that may influence that determination include: the length of and reasons for the delay; the conduct of the parties, particularly the applicant; any prejudice or hardship to the respondent and; the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40]. Although Almond v Read concerned an extension of time in which to bring an appeal under 29A of the Court of Appeal (Civil) Rules, this Court has confirmed that the principles are equally applicable to applications under r 43: Rabson v Attorney General [2017] NZCA 350 at n 5.
The Supreme Court accepted that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time.[3] This is because not considering the merits may risk facilitating unjustifiable delaying tactics on the part of dilatory or recalcitrant litigants. However, the Court recognised three qualifications to this principle:
(a)On occasion the merits or otherwise of a proposed appeal will be overwhelmed by other factors (such as length of delay or prejudice) and therefore will not require consideration.
(b)The merits will not generally be relevant in a case where there has been an insignificant delay as a result of a legal adviser’s error and the proposed respondents have suffered no prejudice (beyond the fact of an appeal).
(c)A decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the lack of merit is readily apparent and the appeal is clearly hopeless. The power to grant or refuse an extension of time should not be used as a mechanism to dismiss apparently weak appeals summarily.
[3]At [39].
In terms of the delay, the progress of Mr Dowden’s appeal thus far has been as follows:
(a)29 November 2019: notice of appeal filed (time for appealing as of right expired on 22 November 2019 and the Deputy Registrar extended the time for filing).[4]
(b)23 December 2019: Mr Dowden requests that security for costs be dispensed with. He is asked to provide further information, which he does not do until 24 February 2020. In the meantime, the Crown applies for increased security for costs. On 24 February 2020 Mr Dowden requests a suspension under r 43 for one month, to 2 April 2020. The suspension is granted on 25 February 2020.
(c)6 March 2020: Mr Dowden’s application to dispense with security for costs is declined by the Deputy Registrar. The Crown’s application for increased security for costs is granted. Mr Dowden files an application for review of this decision and an application for further suspension of time under r 43(1B)(c), due to the COVID-19 lockdown and to allow him time to apply for legal aid. The suspension is granted with the new due date being 4 May 2020.
(d)29 April 2020: a further suspension is granted, with a new date of 4 June 2020 being set.
(e)8 May 2020: the application for review of the decision declining to dispense with security for costs is refused and the Crown application for increased security for costs is granted.[5]
(f)3 June 2020: Mr Dowden is granted an extension of five more working days to file a case on appeal and to request a hearing date, the new due date being 11 June 2020.
(g)9 June 2020: Mr Dowden is granted a further extension to the r 43 timetable (by consent) to 13 July 2020.[6]
(h)14 July 2020: no further steps having been taken, the appeal is deemed abandoned.
[4]Court of Appeal (Civil) Rules, r 5A(1)(c)(ii).
[5]Dowden v Commissioner of Inland Revenue [2020] NZCA 152.
[6]Court of Appeal (Civil) Rules, r 5A(1)(c)(i).
Mr Dowden has pointed to his own health issues by way of explanation for the various delays. We accept that delays subsequent to April 2020 are attributable to Mr Dowden’s ill health, which was exacerbated by the untimely death of Mr Dowden’s son in May 2020.
The real issue that arises is the merit of the proposed appeal. The appeal is brought against a decision of Peters J dismissing an appeal against a decision of the Taxation Review Authority (the TRA).[7] The TRA decision related to Mr Dowden’s liability for PAYE, student loan deductions, GST and income tax between 2004 and 2012. The liability related to business activities, particularly a security business which had traded as Safeguard Security (Safeguard). Mr Dowden maintained that he had transferred his interest in the business to his former partner, Ms Jackson, or her company, Hibiscus Coast Security Ltd, in 2003. He maintained that Ms Jackson was liable for the tax that was the subject of the challenged assessment.
[7]Dowden v Commissioner of Inland Revenue [2019] NZHC 2729, (2019) 29 NZTC 24-025.
Mr Dowden had the burden of proving on the balance of probabilities that the assessments were wrong.[8] But the TRA did not accept Mr Dowden’s evidence that he had ceased to trade as Safeguard during the relevant period.[9] Having heard Mr Dowden give evidence and being cross-examined, the TRA did not find him to be reliable or credible and considered his explanations of the operation of the Safeguard business implausible. It considered that contemporaneous evidence showed that Mr Dowden had continued to trade as Safeguard after January 2004. The contemporaneous evidence included statements made in support of applications for a security guard licence in his own name trading as Safeguard and certificates of approval of individuals described as employees of Safeguard. The payment of Safeguard employees’ wages was made from bank accounts under Mr Dowden’s control. Ms Jackson did not give evidence and the TRA accordingly accorded little weight to the statements she had made to the Commissioner of Inland Revenue.[10]
[8]Tax Administration Act 1994, s 149A(1).
[9]Disputant Z v Commissioner of Inland Revenue [2018] NZTRA 7 at [38].
[10]At [24]–[34].
In the High Court Peters J rejected the submission that the TRA should have given more weight to Ms Jackson’s statements and, having regard to the contemporaneous documents and the TRA’s advantage in hearing all of the evidence, found no error in the TRA’s determination.[11] Mr Dowden has not identified a specific ground of appeal; the notice of appeal merely asserts that the decision has caused a miscarriage of justice. Given the TRA’s credibility findings and reliance on contemporaneous documents, there is no apparent error in Peters J’s decision.
[11]Dowden v Commissioner of Inland Revenue, above n 6, at [35]–[38].
It is usual to allow some latitude to an unrepresented litigant.[12] However, the obvious lack of any merit in this appeal means that the exercise of the discretion to extend time is not justified.
Result
[12]Rabson v Gallagher [2011] NZCA 204 at [9].
The application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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