Faloon v Commissioner of Inland Revenue

[2012] NZHC 1154

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-878 [2012] NZHC 1154

UNDER  the Judicature Act 1908

IN THE MATTER OF     an application for the "extraordinary remedy" of an order of prohibition under Part 30 of the High Court Rules

BETWEEN  CLARENCE JOHN FALOON Plaintiff

ANDTHE COMMISSIONER OF INLAND REVENUE

Defendant

Hearing:         7 February 2012 (Heard at Hamilton)

Appearances: Plaintiff in person

J A L Oliver and K Ross for Defendant

Judgment:      28 May 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 28 May 2012 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Crown Law, Wellington: [email protected]

Counsel:            J A L Oliver, Barrister, Wellington:  [email protected]

Copy for:           C J Faloon:  [email protected]

FALOON V THE COMMISSIONER OF INLAND REVENUE HC TAU CIV-2011-470-878 [28 May 2012]

[1]     The Applicant (“the Commissioner”) seeks an order striking out the Respondent’s (“Mr Faloon”) statement of claim and dismissing the proceeding.  The order to strike out is sought on the grounds that the statement of claim discloses no reasonably arguable cause of action, is frivolous or vexatious or is otherwise an abuse of the process of the Court.[1]

[1] High Court Rules, r 15.1(1).

[2]      In his statement of claim dated 20 October 2011, Mr Faloon seeks an order pursuant to Part 30 of the High Court Rules.  In particular, Mr Faloon seeks an order prohibiting any further hearing of a quite separate proceeding, CIV-2010-470-922 (“CIV 922”).

[3]      CIV   922   is   a   proceeding   that   Mr   Faloon   commenced   against   the Commissioner in 2010.  The Commissioner made the same application in respect of the statement of claim and proceeding as is before me in this proceeding.   In November 2011, an Associate Judge granted the Commissioner’s applications in CIV 922.   I heard and dismissed Mr Faloon’s application to review the Associate Judge’s decision in February 2012.

[4]      Accordingly, aside from anything else, the order that Mr Faloon seeks in this proceeding has been overtaken by events.

[5] I should, however, also refer to the basis on which Mr Faloon seeks the order referred to in [2]. Mr Faloon pleaded in this proceeding that the Commissioner was not entitled to pursue an application to strike out in CIV 922, because the Commissioner had not filed a statement of defence to an amended pleading that Mr Faloon had filed in CIV 922.

[6]      There is no requirement that a party who seeks to strike out a pleading must first file a statement of defence.  Accordingly, the present proceeding has never had

any prospect of success.

[7]      I make orders striking out the statement of claim dated 20 October 2011 and dismissing the proceeding.

[8]      Costs are to lie where they fall.

..................................................................

M Peters J