Henare v Commissioner of Inland Revenue

[2024] NZHC 2530

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-3111

[2024] NZHC 2530

BETWEEN

STEPHEN JAMES HENARE

Applicant

AND

THE COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:	On the papers
Appearances:	Applicant in person
Date of judgment:	5 September 2024

JUDGMENT OF JAGOSE J

[Leave to appeal]

This judgment was delivered by me on 5 September 2024 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Legal Services Auckland, Inland Revenue, Auckland

Copy to:

Applicant

HENARE v THE COMMISSIONER OF INLAND REVENUE [2024] NZHC 2530 [5 September 2024]

[1]    Stephen Henare seeks leave to appeal my 23 July 2024 decision,1 dismissing his appeal of Judge A A Sinclair’s 28 November 2023 decision in the District Court at Auckland (giving summary judgment on  the  Commissioner’s  claim  to  recover  Mr Henare’s assessed income tax).2 No opposition is apparent from the Commissioner.

Background

[2]    The judgments concern Mr Henare’s attempts to  avoid  application of the  Tax Administration Act 1994’s exclusive process for disputing tax assessments.

My judgment explained:3

(a)    a tax assessment is a disputable decision,

(b)    disputable decisions:

(i)only are open to objection under Part 8 or challenge under Part 8A of the Tax Administration Act;

(ii)may not be disputed in a court or any other proceeding “on any ground whatsoever”; and

(iii)otherwise are deemed correct in all respects; and

(c)    Mr Henare brought no objection or challenge to the Commissioner’s assessment of his tax liability, which was finally determined;

(d)    summary judgment is available once tax liability is finally determined;

(e)    objections or challenges to tax assessments are not open to being raised on summary judgment applications;

(f)     summary judgment requires the Judge be satisfied there is “no defence” to the claim, that is, “no arguable defence, meaning that there is no real question to be tried”, on generally undisputable facts as robustly and realistically assessed;

(g)    if so, there remains residual discretion if to order summary judgment; and

(h)    the Judge correctly identified Mr Henare’s lack of defence to the Commissioner’s claim, by reason of s 109’s prohibition of any dispute to the Commissioner’s assessment of him, and was entitled therefore to enter summary judgment against him.

1      Henare v Commissioner of Inland Revenue [2024] NZHC 2012.

2      Commissioner of Inland Revenue v Henare [2023] NZDC 26635.

3      Henare v Commissioner of Inland Revenue, above n 1, at [18] (footnotes omitted).

Approach to applications for leave to bring a second appeal

[3]    The approach to applications for leave to bring second appeals to the Court of Appeal under s 60(2) of the Senior Courts Act is well-settled:4

The proposed appeal must raise some question of law or fact capable of bona fide and serious argument, in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. On a second appeal this Court is not engaged in the general correction of error. Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a court.

Discussion

[4]    Mr Henare’s application for leave non-specifically refers to:

–  Question of Law

–  Legal Error

–  Admissibility of Evidence – Probative Value

–  Affidavit

as the intended subject of his appeal. Mr Henare’s affidavit sworn 12 August 2024 asserts “A Legal Error occurred during the Auckland High Court Civil appeal hearing concerning ‘Notes of Evidence by District Court Judge A A Sinclair dated 28 November 2023 hearing”.

[5]    The affidavit also notes Mr Henare had “requested a Copy of the High Court appeal hearing transcript … in order to provide evidence and fact as a Question of Law”. I declined his request on grounds there was no transcript and no evident reason for its preparation.5

4      Birchler v Homebuild Homes Ltd [2024] NZCA 414 at [32], citing Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276, (2018) 24 PRNZ 500 at [4] (footnotes omitted) (citing Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 (CA) at 346–347 and Waller v Hider [1998] 1 NZLR 412 (CA) at 413).

5      Henare v Commissioner of Inland Revenue HC Auckland CIV-2023-404-3111, 20 August 2024 (Minute of Jagose J).

[6]    In my assessment, my judgment affords no basis for any question qualifying for second appeal. If I am wrong in that assessment, Mr Henare may seek leave directly from the Court of Appeal.6

Result

[7]Mr Henare’s application for leave to bring a second appeal is declined.

—Jagose J

6      Senior Courts Act, s 60(2).