Kaur v Taxation Review Authority

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-152

[2023] NZHC 2748

UNDER

the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016

IN THE MATTER

of an application to review a decision of the Taxation Review Authority

BETWEEN

RAVINDER KAUR

Applicant

AND

THE TAXATION REVIEW AUTHORITY

First Respondent

COMMISSIONER OF INLAND REVENUE

Second Respondent

CIV-2022-485-795

IN THE MATTER

of an appeal under section 26A of the Taxation Review Authorities Act 1994

BETWEEN

RAVINDER KAUR

Appellant

AND

THE TAXATION REVIEW AUTHORITY

First Respondent

THE COMMISSIONER OF INLAND REVENUE

Second Respondent

Hearing:

7 September 2023

Appearances:

A B Darroch and M I Smol for Applicant/Appellant Appearance excused for First Respondent

E J Norris and R L Grierson for Second Respondent

Judgment:

29 September 2023

KAUR v THE TAXATION REVIEW AUTHORITY [2023] NZHC 2748 [29 September 2023]

JUDGMENT OF McQUEEN J

Table of Contents

Para Nos

Introduction  [1]

Background  [5]

The tax dispute  [5]

The proceedings before the TRA  [9]
The unless orders  [15]
Strike out decision  [22]

TRA decision about effect of unless orders  [30]

Issues in the proceedings  [31]

The appeal  [31]

Application for judicial review  [34]

Is the strike out decision a determination from which an appeal lies?         [36]

Ms Kaur’s submissions  [36]

The Commissioner’s submissions  [38]
Discussion  [39]
Conclusion  [49]

The appeal  [50]

Approach to appeal  [50]

Relevant law  [51]
Ms Kaur’s submissions  [54]
The Commissioner’s submissions  [61]

Discussion  [67]

Relief  [88]

The application for judicial review  [90]

Result  [91]

Costs  [93]

Introduction

[1]                 Ms Kaur challenges the decision of the Taxation Review Authority (TRA) to strike out her claim against the Commissioner of Inland Revenue (the Commissioner) for non-compliance with unless orders (the decision).

[2]                 Ms Kaur sought initially to bring an appeal against the decision (CIV-2022- 485-793). Ms Kaur then filed an application for judicial review after the Commissioner indicated his position that there is no right of appeal from the decision (CIV-2023-485-152). The two proceedings rely on the same factual background and substantive arguments. On 28 April 2023, Radich J ordered that the proceedings were to be heard together and that is what has taken place before me.1

[3]                 The TRA abides the decision of the Court, and its counsel were excused from appearing. The Commissioner opposes both Ms Kaur’s appeal and application for judicial review.

[4]                 For the reasons that follow, I allow the appeal and dismiss the application for judicial review.

Background

The tax dispute

[5]                 In its key aspects, the factual background is not in dispute between the parties. An affidavit was filed in support of Ms Kaur’s appeal and application for judicial review from a Mr Lukey. Mr Lukey is a tax barrister who was engaged by Mr Draht of Greenland CA Ltd to act as counsel for Mr Kaur in relation to the claim before the TRA. An affidavit from a Mr Wallace was filed in support of the Commissioner’s position. Mr Wallace is…