M & J Wetherill Company Ltd v Taxation Review Authority
[2004] NZCA 270
•10 November 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA226/03
BETWEENM & J WETHERILL COMPANY LIMITED & ORS
Appellants
ANDTAXATION REVIEW AUTHORITY
First RespondentANDCOMMISSIONER OF INLAND REVENUE
Second Respondent
Hearing:19 May 2004
Coram:Hammond J
Chambers J
Chisholm JAppearances: G J Judd QC for Appellants
J H Coleman and M J Ruffin for Respondents
Judgment:10 November 2004
JUDGMENT OF THE COURT DELIVERED BY HAMMOND J
Introduction
[1] This is an appeal against a decision of O’Regan J, now reported at (2003) 21 NZTC 18,311, in which the Judge declined an application for judicial review against a refusal of the Taxation Review Authority (TRA) to sign a case on appeal under s 26 of the Taxation Review Authorities Act 1994 in Case W7 (reported at (2003) 21 NZTC 11, 049).
[2] The first respondent, the TRA, abides the decision of the Court.
[3] The second respondent, the Commissioner of Inland Revenue, seeks leave to cross-appeal out of time against O’Regan J's finding that the appellants had a right of appeal under s 26.
Background
[4] This case has a decidedly Dickensian appearance, in that it has become a procedural morass. Unfortunately, it is not possible to appreciate the issues now before this Court without a sketch of the quagmire.
[5] The starting point is that the appellants are all parties to arrangements that have become known in these and other proceedings as “the Russell template”. In cases involving other taxpayers that were parties to the Russell template these arrangements were ultimately found to be tax avoidance, by the Judicial Committee of the Privy Council in Miller v CIR [2001] 3 NZLR 316 (PC).
[6] The Commissioner assessed the present appellants accordingly. The appellants objected to those assessments.
[7] The Commissioner not having wholly allowed the objections, the appellants gave notice under s 134 of the Tax Administration Act 1994, requiring that the objections be heard and determined by the TRA.
[8] Under the relevant regulations, the Commissioner had three months from the receipt of the taxpayer's points of objection to file a case with the TRA.
[9] The appellants’ points of objection were received on 12 May 1996.
[10] The Commissioner then sought to have the objections referred to the High Court by way of case stated under s 136 of the Tax Administration Act 1994. He applied for leave to do so on 8 October 1996.
[11] That application was heard by Baragwanath J on 3 June 1997. His Honour gave an oral judgment expressing the view that the matters in issue would be better dealt with by the TRA, if the TRA had sufficient time available to do so. The application was adjourned to allow the TRA time to consider whether it could conveniently deal with the objections.
[12] On 14 July 1997, the appellants applied to the TRA to allow its objection (under reg 6(4) of the Taxation Review Authority Regulations 1994) in consequence of the Commissioner's failure to state and file a case within the required time limits.
[13] In forensic terms, the appellants considered that they had something of a “king-hit” in this point, which would see them entirely free from the unwelcome attentions of the Commissioner in this case.
[14] The Commissioner responded, on 6 November 1997, by resorting to reg 8 of the Regulations. He applied to the TRA for an extension of time for filing the case stated.
[15] On 4 February 2000, the TRA granted the Commissioner's application, by extending the time for filing the case to 31 March 2000. It dismissed the appellants' reg 6(4) application. That decision of the TRA is reported as Case U35 (2000) 19 NZTC 9,330. The appellants' apparent victory (as they saw it) was thereby snatched from their grasp.
[16] However, the appellants were not about to give up lightly. They then filed with the TRA a notice of appeal to the High Court against its decision in Case U35, under s 26 of the Taxation Review Authorities Act 1994.
[17] It is necessary for this appeal to set out the provisions of that section, which, relevantly, provides:
26 Appeals to High Court
(1)The determination of an Authority on any objection shall be subject to appeal to the High Court in any case where, not being an objection referred to an Authority under section 138(1) of the Tax Administration Act 1994, -
(a)The amount of tax [ ] involved in the appeal to the High Court is $2,000 or more; or
(b) Repealed
(c)The amount of loss involved in the appeal to the High Court is $4,000 or more; or
(d)The appeal relates to questions of law only, -
but shall be final and conclusive in all other cases.
(2)In the case of an appeal the appellant shall, within 30 days after the date of the giving by the Authority of the Authority's decision in writing in relation to the determination appealed from, file with the Authority a notice of appeal specifying the registry of the High Court in which the appellant intends to file the case on appeal, and, in the case of an appeal by an objector, shall give security for the costs of the appeal to such amount and in such form as may be fixed by the Authority.
(3)The appellant shall prepare a case setting forth the facts and the questions of law or fact arising for the determination of the High Court, and shall, within 9 months after the date of the giving by the Authority of the Authority's decision in writing relating to the determination appealed from, submit the case to the Authority whose determination is appealed from.
(4)An Authority may return to an appellant a case submitted to the Authority under subsection (3) or further submitted under this subsection for such amendment as the Authority shall direct, and the appellant shall further submit the case to the Authority within such time as the Authority shall allow.
(5)Where an Authority accepts a case submitted or further submitted to the Authority under subsection (3) or subsection (4), the Authority shall sign the case and shall deliver the case so signed to the appellant.
(6)The appellant shall, within 14 days after the date of receipt of the case delivered by the Authority under subsection (5), transmit it to the Registrar of the High Court in the registry specified in the notice of appeal, and the Registrar shall then enter the appeal for hearing at the first practicable sitting of the Court.
(7)On the hearing of the appeal the High Court may, if it thinks fit, cause the case stated to be sent back to the Authority for amendment, and subsections (4), (5), and (6) shall, with any necessary modifications, apply as if the case had been submitted to the Authority under subsection (3).
(8)This section applies only to objections commenced under Part 8 of the Tax Administration Act 1994.
[18] On 22 March 2000 the Commissioner applied to the TRA to have the appeal struck out for want of jurisdiction, essentially on the ground that s 26 did not give a right to appeal with respect to interlocutory decisions.
[19] On 9 June 2000 the TRA dismissed the appellants’ application for a case stated, and, on the Commissioner's application, struck out the purported appeal. That decision is reported as Case U41 (2000) 19 NZTC 9,380. Judge Barber held that it was implicit in the statutory scheme of the Taxation Review Authorities Act 1994 that there was no general right of appeal against decisions of the TRA other than final determinations.
[20] The appellants were now distinctly warming to the litigation. They commenced proceedings in the High Court seeking judicial review of the decisions of the TRA in Case U35 and Case U41.
[21] O’Regan J gave judgment on this proceeding on 9 May 2001 (now reported as M & J Wetherill Co Ltd v Taxation Review Authority [2001] 3 NZLR 827). The Judge set aside the decision of the TRA in Case U35 and remitted it to the TRA. He declined to make the declaration the appellants had sought. That was a declaration that where the Commissioner seeks leave to file in the High Court, the Commissioner must, within the time limit for filing a case with the TRA, apply to the High Court for leave and that an application filed after that date is incompetent. In respect of Case U41 O’Regan J said:
[128]I find that the decisions of the TRA, although interlocutory in nature, come within the first category outlined in the Association of Dispensing Opticians case [[2000] 1 NZLR 158]. I therefore conclude that the TRA erred in its interpretation of s 26(1) and should have stated a case as required under s 26 so that the appeal could be determined by this Court. However, as my earlier findings make this conclusion of incidental interest only, I do not make any orders in relation to it.
[22] Although the appellants had been largely successful in the High Court, they appealed to this Court against O’Regan J’s refusal to make the declaration sought and his decision not to quash the TRA's decision in Case U41.
[23] The Commissioner then filed a cross-appeal in respect of O’Regan J's decision to set aside the TRA’s decision in Case U35. In a judgment now reported at [2003] 1 NZLR 577 this Court dismissed the appellants’ appeal as it related to Case U35, but allowed the Commissioner's cross-appeal in respect of Case U35, thereby effectively reinstating the TRA's decision to extend the time period.
[24] Having done so, this Court said, under the heading Case U41 (at [45]):
In the light of the conclusions and reasoning in relation to O’Regan J's judgment on review of Case U35, there could be no basis for a separate appeal to the High Court in respect of those matters. However, we are not to be taken as accepting that there is jurisdiction to appeal from a decision of that kind except as relating to “the determination on the objection” (Taxation Review Authorities Act 1994, s 26) which, arguably, is confined to the ultimate substantive determination of an objection.
[25] This Court dismissed the appeal as it related to Case U41.
[26] The energies of the parties were not yet exhausted. The appellants subsequently applied to this Court for conditional leave to appeal to the Judicial Committee of the Privy Council against this Court's decisions in respect of both Case U35 and Case U41.
[27] This Court refused leave, in a judgment dated 30 April 2002 (reported at (2002) 20 NZTC 17,681). It said:
[8]As regards Case U41, the applicants seek conditional leave to appeal under both (a) and (b) of r 2. Mr Judd's argument under r 2(a) is that the civil right involved is the right of general appeal to the High Court under s 26 of the Taxation Review Authorities Act 1994 against the decision of the Taxation Review Authority. The Authority held that appeal was available under s 26 only on the ultimate determination of the objection. The High Court upheld a present right of appeal but in the light of its decision on Case U35 made no orders. Mr Judd submitted that the tax at stake, and so the value of the civil right of appeal, is over $5,000.
[9]The short answer is that this court has already held that the Taxation Review Authority did not err in granting the Commissioner's reg 8(2) application extending the time for filing a case to 31 March 2000 and then dismissing the taxpayer's reg 6(4) application (para [43]). Mr Judd submitted that a rejection of an administrative law challenge to a decision under reg 6(4) and reg 8 could not determine a general appeal on the merits under s 26. The tests, he said, are different. They are. But in some circumstances the two inquiries in the factual area may so overlap that the same decision would have to be given whichever route is chosen. Indeed, Mr Beck submitted that in some circumstances to pursue one route after failing in the other would be an abuse of process. In the present case the crucial issue is whether on the facts there are reasonable grounds for not filing the case stated within the specified term. In administrative law terms the question is whether the decision was irrational or Wednesbury unreasonable in this class of case. In challenging the exercise of a discretion on appeal under s 26, it is whether the decision was plainly wrong. In context in these circumstances we cannot see any room for different factual conclusions on judicial review or appeal.
[10]Then, as regards r 2(b), Mr Judd submitted that the proposed appeal raises a question of great general or public importance and is also one which should be submitted to Her Majesty in Council under the “or otherwise” limb.
[11]Mr Judd seeks to challenge this court's conclusion that: “In the light of the conclusions and reasoning in relation to O'Regan J's judgment on review of Case U35, there could be no basis for a separate appeal to the High Court in respect of those matters” (para [45]), contending also that the court breached natural justice in deciding without proper argument than an appeal could not possibly succeed. But, as Mr Beck submitted, this court's conclusions in respect of Case U35 were sufficient to dispose of any appeal relating to Case U41. The court held that the Taxation Review Authority did not err in that decision, and it followed that any separate appeal in Case U41 would have been otiose.
[28] A petition for special leave to appeal was dismissed by the Judicial Committee of the Privy Council in October 2002.
[29] After the Judicial Committee declined leave, the appellants wrote to the TRA seeking to have it sign the case on appeal which had originally been struck out in Case U41. The TRA called for submissions, and conducted a hearing.
[30] The TRA declined to allow the appeal to proceed. That decision is now reported as Case W7 (2003) 21 NZTC 11,049. Its given reasons were, first, that as a result of O’Regan J's refusal to grant relief in the original judicial review proceedings, the TRA's decision in Case U41 remained intact. Secondly, the TRA relied on statements of this Court both in the appeal judgment and the leave judgment that there would be no basis for appeal on the issues raised in the appeal.
[31] The appellants thereupon commenced this proceeding in the High Court, seeking judicial review of the decision of the TRA in Case W7, and an order in the nature of mandamus to require the TRA to state a case.
The judgment in the High Court
[32] This then was the context in which the appeal which is now before us came forward to O’Regan J.
[33] In the High Court, the appellants sought essentially the same relief as was sought in the first judicial review application.
[34] The principal issue in the High Court was seen to be whether the appellants were estopped from pursuing the same cause of action, or raising previously determined issues. In determining this issue, O’Regan J adopted the summary of the law of res judicata set out in X v Y [1996] 2 NZLR 196 at 201-202.
[35] O’Regan J considered that this was not a case of re-litigation of a failed argument. In the first judicial review application, the Judge had held that a right of appeal existed. Strictly speaking, an issue estoppel now existed on that issue, which prevented the Commissioner from arguing otherwise.
[36] The Judge was mindful of the fact that this Court had expressed some doubt as to the existence of an appeal right, and had expressed clear views that the judicial review findings in this Court in relation to Case U35 effectively disposed of any points that could be raised on appeal. However the statements of this Court to that effect in its leave decision were not integral to the decision to decline leave. While issue estoppel might well apply to the particular issues which were dealt with in the judicial review proceedings, O’Regan J was satisfied that this would leave some issues to be determined on appeal.
[37] O’Regan J also dealt with the submission that the appeal would be an abuse of process. The Judge took the view that mere re-litigation was not enough to amount to an abuse of process; something more was required, such as a collateral attack on a previous decision (Bradford & Bingley Building Society v Seddon [1999] 4 All ER 217 at 227). Whilst the appellants’ pursuit of an appeal did involve a direct attack on the observations of this Court about the futility of an appeal, O’Regan J accepted that this did not constitute an attack on the actual decision of the Court in either the appeal judgment or the leave judgment.
[38] In the result, O’Regan J declined to exercise his discretion to grant relief to the appellants. In doing so, the Judge took into account the following matters: first, the doubt expressed by this Court as to the correctness of his finding that an appeal right existed; second, the observations by this Court to the effect that the decision by the TRA in Case U35 was correct and that the similarity of the judicial review and appeal proceedings was such that there was no basis for a separate appeal; third, the identification of those findings by the appellants in the petition for special leave which was dismissed by the judicial committee; fourth, the fact that the appellants would have a right of appeal against the final decision of the TRA in respect of their objections which could encompass all matters decided by the TRA including the rulings made in Case U35.
The appeal and cross-appeal
[39] This appeal is against O’Regan J’s exercise of his discretion to deny the appellants relief.
[40] Notice of that appeal was given on 27 November 2002.
[41] On 11 December 2003, the then counsel for the Commissioner, the Crown Solicitor at Auckland, gave notice of his intention to support the judgment of O’Regan J on alternative grounds, namely:
·the Commissioner was not estopped from denying the existence of a right of appeal from the decision of the TRA in Case U35 because O’Regan J's statements in the original judicial review proceedings concerning Case U41 were obiter dicta and this Court's dicta were more persuasive; and
·there is no right of appeal from an interlocutory decision of the TRA under s 26 of the Taxation Review Authorities Act.
[42] Matters were further delayed whilst the material for the appeal was transmitted to the Commissioner's present counsel, the Crown Law Office, on 16 January 2004. Effectively, the whole conduct of what had become an extraordinary saga, was passing from Auckland counsel to Wellington counsel.
[43] Then, on 26 April 2004, the Commissioner gave notice that leave would be sought to cross-appeal against those parts of the judgment in which O’Regan J held that the appellants were entitled to appeal Case U35, on the following grounds:
(a)the principles of cause of action estoppel, issue estoppel and abuse of process preclude the appellants’ appeal in that:
·all the issues sought to be raised on appeal were either determined by this Court in the judicial review proceedings or could have been raised in those proceedings; and
·it is an abuse of process to commence collateral proceedings seeking to argue matters that have already been disposed of or should have been raised in earlier proceedings.
(b)Section 26 of the Taxation Review Authorities Act does not provide a right of appeal when the appeal would amount to an abuse of process.
Where had things got to?
[44] In the simplest terms therefore, at the end of this forensic odyssey the position had been reached whereby the extension of time which had been granted to the Commissioner in Case U35 had been upheld. The “king-hit” sought to be landed on the Commissioner was no longer available to the appellants. However, the decision of O’Regan J on the appeal from Case U41 still stood, to the effect that the TRA should have stated a case under s 26, although this Court had expressed distinct reservations as to whether an appeal of that character could be mounted.
Meanwhile: the substantive case goes on
[45] We were told that, to cap all this off, the substantive case is presently being heard, on an ongoing basis.
The application for leave to cross-appeal out of time
[46] It is convenient at this point to deal with this application. In a procedural direction prior to the hearing before us, McGrath J directed that the application be dealt with at the hearing of the appeal.
[47] The application is made on the basis that responsibility for the conduct of this convoluted case, for the Commissioner, was transferred from the Crown Solicitor’s Office at Auckland to the Crown Law Office in Wellington. Further, the necessary materials only arrived in the Crown Law Office after the long vacation in 2003/2004.
[48] The application is made in reliance on r 8 of the Court of Appeal (Civil) Rules 1997.
[49] We grant the application. The reasons for the delay have already been noted. We accept that they afford a sound basis for the extension sought.
The points on appeal
[50] It will be recalled that O’Regan J held that the appellants were entitled to appeal against the TRA's decision in Case U35, but declined to require the TRA to sign the case on appeal so that the appeal could then proceed in the High Court.
[51] The points on appeal against that determination are:
(i) It is in the public interest that the law should be upheld.
(ii)When the Court has determined that a right of appeal exists, it is a serious matter for a judicial officer to refuse to obey the law, by refusing to process the appeal.
(iii)It is a serious matter, and in breach of s 27 of the Bill of Rights, to deny to the appellants the appeal hearing to which the High Court has held they are entitled.
(iv)The foregoing three matters are relevant considerations which the High Court did not consider.
(v)Doubts expressed by the Court of Appeal as to the correctness of the High Court’s finding that there was a right of appeal (paragraph [42](a)) is an irrelevant consideration because the appellants and the respondents, and the courts, are all bound by the High Court’s decision.
(vi)The observations by the Court of Appeal in the substantive appeal and the leave judgment to the effect that the decision of the TRA in Case 35 was correct, and the similarity of the judicial review proceedings and the proposed appeal proceedings was such that there was no basis or a separate appeal against the decision in Case U35 (paragraph [42](b)), is an irrelevant consideration because the Court of Appeal was not hearing an appeal but only certain specific issues of law raised by the judicial review proceedings.
(vii)The dismissal of the petition to the Privy Council for special leave to appeal (paragraph [42](c)) is an irrelevant consideration because it is not known on what grounds the Privy Council decided not to grant leave for (as is the usual course) no reasons were given, and
(viii)The High Court was wrong to find that the rulings made by the TRA in Case U35 could be dealt with on an appeal against the final decision of the TRA in respect of the appellants’ objections to the assessments (paragraph [42](d)), in that:-
(a)Case U35 concerned an application by the appellants for a direction pursuant to reg 6(4) of the Taxation Review Authority Regulations [1994] that the Commissioner allow the objections because the Commissioner had failed to file the Case within time, and an application by the Commissioner for extension of time to file the Case; whereas
(b)The final decision of the TRA will be as to whether or not the objections should be allowed; so that
(c)The subject matters of the two appeals will be quite different, and
(d)The appeal against the TRA’s decision in respect of the objections cannot and will not encompass the decisions of the TRA in Case U35, because of the High Court’s finding, which is res judicata, that the Case U35 decision is appealable.
The arguments for the Commissioner
[52] As matters now stand, the Commissioner submits that the appeal should be dismissed, for reasons which can be conveniently regrouped under three heads:
·The Commissioner supports the Judge's exercise of his discretion.
·In any event, the Commissioner submits that there is no right to appeal an interlocutory decision under s 26 of the Taxation Review Authorities Act 1994.
·Even if there were a right of appeal available to the appellants with respect to Case U35, the principles of res judicata and abuse of process preclude an appeal of Case U35, in the particular circumstances of this case.
Discussion
[53] The first point to be resolved is whether the appellants had a right of appeal under s 26 of the Taxation Review Authorities Act 1994. If that point is resolved against the appellants, it is the end of this whole saga.
[54] The Commissioner submits that O’Regan J was wrong in the first review decision ([2001] 3 NZLR 827) with respect to the observation at [128] that the decision in Case U35, although interlocutory, could be appealed under s 26 of the Act.
[55] The argument is that s 26(1) is concerned with substantive decisions which finally determine objections on their merits, not interlocutory decisions. It would follow that a right of appeal only arises on the “final” determination of the objections, on the merits.
[56] Mr Judd urged on us that it is quite wrong that this point be raised now. He said the submission is a blatant attempt by the Commissioner to appeal against the first High Court decision; and that it would be wrong to deal with the point now. He further argued that the Commissioner can argue the s 26 point in other cases, if he wishes to do so (although, s 26 relates to a regime which as Mr Judd said “is on its way out [and] it is unlikely that the point will ever arise again”).
[57] We take first the issue as to whether this Court can properly deal with this matter, now. We think the answer must be in the affirmative. This is because in exercising his discretion in the judicial review proceedings, O’Regan J had to correctly inform himself as to the state of the law. If in fact he was proceeding on an incorrect premise, the Judge would be inappropriately exercising his discretion.
[58] What the Judge said was that, in light of the observations of this Court, it was doubtful whether there was such a right of appeal. That could be put another way. As best he was able to assess, the Judge thought the law was probably against the appellants on the existence of the appeal right, and that he should give that weight.
[59] There is another point however, which is more fundamental, by way of response to Mr Judd. Most appeals to this Court, including this one, are by way of rehearing. In this instance, this Court has to form its own, independent view of the relevant point of law.
[60] In our view the Commissioner is correct in the submission made that there is no right of appeal on interlocutory matters under s 26(1).
[61] The place to begin is with the text itself. The opening words of s 26(1) refer to “The determination of the authority on any objection …”. (Emphasis added.) Taken at their face, they appear to us to refer to the determination of the objection itself.
[62] Secondly, those words have to be considered in the context of the subsection as a whole (see para [17], above). The factors referred to in subs 1(a) and (c) cannot sensibly be said to be qualifiers to an interlocutory appeal.
[63] Thirdly, the rest of s 26 does not sit easily with a right of appeal on interlocutory matters. There is provision for the preparation of a detailed case, and significantly, under subs (3), the appellant has nine months in which to prepare that case and submit it to the TRA. It is highly unlikely that Parliament would have allowed an appellant a period of as long as nine months in which to prepare a case for an appeal on an interlocutory decision. That would give taxpayers the ability to stonewall objection hearings for considerable periods. The structure of s 26 as a whole is really consistent only with appeals from substantive decisions, not interlocutory decisions.
[64] Fourthly, the wider scheme of the Taxation Review Authorities Act tends to support the construction urged by the Commissioner. Section 25 deals with the requirements on the determination of an objection or challenge, which must be in writing, and give reasons. Section 3 of the Act provides that the function of the TRA is to sit as a judicial authority for hearing and determining objections and challenges to the assessments of tax and to other decisions and determinations of the Commissioner. The short point here, is that the word “determination”, when used, appears to be used consistently to refer to final resolutions of an objection, on its merits. Section 24 enables the TRA to state a case before giving its decision, if a difficult interlocutory point should arise, and on which it deserves assistance. In such an instance, the appellant has only 30 days for getting in the draft case, which envisages a relatively swift disposal of the point. The Act therefore has its own “built-in” interlocutory system.
[65] The arguments against the construction urged by the Commissioner are essentially of a utilitarian character. That is, that if there is not a right of appeal on interlocutory matters, it is only at the conclusion of the case that matters of concern during the passage of the case could be raised on appeal. A taxation objection case could run, on the merits, for many weeks and then it might be found that there was some serious error of a procedural or intermediate character which could only be corrected, ex post. In an extreme case, the parties might then be put to the trouble and expense of having to rerun the hearing of the objection.
[66] That concern has force, but it is subject to what has already been said about s 24. And it is a situation which is not without parallels elsewhere in the law. In the criminal law, for instance, there is provision in the Crimes Act 1961 for certain kinds of preliminary questions to be subject to appeal before trial. But in general, once even a lengthy trial is underway, it proceeds to fruition and is then subject to the same after-the-fact review as would be the case in this instance, if the Commissioner's view is correct. Interlocutory appeals in summary proceedings are curtailed. And, it was entirely rational for Parliament to have taken the view that endless interlocutory skirmishing of the kind which has occurred in this case should be discouraged in taxation cases. Indeed, the TRA has been of the view that no appeal power exists in respect of preliminary decisions since at least 1990 (see Case M26 (1990) 12 NZTC 2,164). Despite reform of the legislation in the mid-1990s the wording of the relevant provisions remains unchanged.
[67] With respect to the Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158, that decision concerned s 66 of the Judicature Act 1908, and the decision made it quite clear that context is everything. The context in that case is not that in this case.
The exercise of the discretion
[68] Once this point is reached, it is apparent that at [41] of his judgment of 4 November 2003 O’Regan J, for the reasons we have already given, did proceed on an incorrect legal premise.
[69] Since there is no right of appeal from the TRA’s decision in Case U35, it follows that the TRA could not be required to sign a case under s 26 of the Taxation Review Authorities Act, purporting to allow an appeal from it. In those circumstances, it is neither necessary nor appropriate that we should address the other matters canvassed before us by counsel.
Conclusion
[70] In the result, the appeal is dismissed, although our reasons for upholding O’Regan J’s decision not to issue mandatory relief differ from those given by him.
[71] The appellants must pay to the Commissioner costs in the sum of $8,000, together with the Commissioner’s reasonable disbursements. If the parties are unable to agree, the disbursements are to be fixed by the Registrar. The appellants’ liability for costs and disbursements is joint and several.
Solicitors:
B M Grierson, Auckland for Appellants
Crown Law Office, Wellington for Respondents
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