Faloon v Commissioner of Inland Revenue

IN THE COURT OF APPEAL OF NEW ZEALAND

CA417/2013
CA462/2013
[2013] NZCA 425

BETWEEN	CLARENCE JOHN FALOON Appellant
AND	COMMISSIONER OF INLAND REVENUE Respondent

Counsel:

Appellant (In person)
A Goosen for Respondent

Judgment:

(On the papers)

10 September 2013 at 4.00 pm

JUDGMENT OF MILLER J
(Review of Registrar’s decision on security for costs)

The application to review the Registrar’s decision is dismissed.

____________________________________________________________________

REASONS

The Registrar has directed that the appellant lodge security for costs of $5,880.00 in each of these two appeals, and has refused an application to dispense with security.
The appellant wishes to review the Registrar’s decision, but is out of time. Before me is an application for an extension of time for bringing an application to review the Registrar’s decision.
Although the appellant is not long out of time, no sufficient explanation has been advanced for the delay.
Further, the original application to dispense with security was advanced on the basis that the appeal would require two hours or less of hearing time and the respondent may desire to take no part in the appeal. These propositions do not establish that it is in the interests of justice to waive or reduce security. I accept that the two appeals are closely related, but they raise different issues. The merits are weak. It is manifest on the papers that have been filed that the respondent will take part in the appeals, if they are prosecuted, and it remains to be seen how long the argument will take. The respondent has also contended that the Court has no jurisdiction to entertain appeal CA417/2013 and has foreshadowed that an application to strike out will be brought on jurisdictional grounds. In the event that the respondent succeeds and scale costs are less than the amount of security, a refund can be paid.
I draw the appellant’s attention to r 37 of the Court of Appeal (Civil) Rules 2005. Until security is paid the appellant may not apply for a hearing date, and the respondent may move to strike out.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Clarence John Faloon, the appellant, sought to challenge a decision made by the Registrar of the Court of Appeal of New Zealand, which required him to lodge security for costs of $5,880.00 in each of two appeals. The appeals, identified as CA417/2013 and CA462/2013, were against the Commissioner of Inland Revenue, the respondent. The appellant's primary contention was the refusal by the Registrar to exempt him from the requirement to provide security for costs and the imposition of a monetary amount. Faloon was proceeding in person and sought to review the Registrar's decision; however, he was beyond the allowable time frame for such an application.

The court was tasked with determining whether the appellant's application for an extension of time to review the Registrar's decision on security for costs was justifiable and whether the security amount imposed was appropriate. The court also had to consider the implications of the appellant's failure to provide sufficient justification for the delay in making the application, the merits of the appeals, and the potential impact on the respondent if the appeals proceeded.

The Court of Appeal dismissed the application to review the Registrar's decision on the basis that Faloon had not provided a sufficient explanation for the delay and that the original application to dispense with security did not establish a compelling reason to waive or reduce the security amount. The court noted that the appeals were closely related but raised different issues and that the merits of the appeals appeared weak. The court also highlighted that the respondent would likely participate in the appeals, and the duration of the argument remained uncertain. The court drew attention to the procedural rules, specifically rule 37 of the Court of Appeal (Civil) Rules 2005, which stated that the appellant could not apply for a hearing date until security was paid and that the respondent could move to strike out the appeals if security was not provided.

The court concluded that since the appellant was out of time and had not provided a satisfactory explanation for the delay, the application to review the Registrar's decision was dismissed. No further orders were made regarding the security for costs or the potential strike-out applications by the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established