Machirus v Commissioner of Inland Revenue

[2007] NZCA 374

IN THE COURT OF APPEAL OF NEW ZEALAND

CA266/07
[2007] NZCA 374

BETWEENPETER LLOYD MACHIRUS

Applicant

ANDCOMMISSIONER OF INLAND REVENUE

Respondent

Hearing:20 August 2007

Court:Hammond, Robertson and Ellen France JJ

Counsel:No appearance for Applicant

M Deligiannis for Respondent

Judgment:30 August 2007 at 10 am

JUDGMENT OF THE COURT

AThe application for special leave to appeal out of time is dismissed.

BNo order as to costs.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       This is an application for special leave under rule 29(4) of the Court of Appeal (Civil) Rules 2005 to appeal out of time a decision of Ronald Young J delivered on 3 April  2007: HC CHCH CIV2003 409 2350.  Special leave is required because Mr Machirus was five weeks late in filing his appeal.

Background

[2]       Mr Machirus has a mix of legal and illegal income.  He objected to the charging of income tax and GST on the profits of his illegitimate businesses and to various items added back to his asset accretion assessments for various years.  He also claimed that the Commissioner had breached the New Zealand Bill of Rights Act 1990.  These matters were dealt with by the Taxation Review Authority (“TRA”) in Case W27 (2003) 21 NZTC 11,276.  The TRA largely found for the Commissioner but quashed various GST assessments as being time-barred.

[3]       Mr Machirus appealed and the Commissioner cross-appealed by way of case stated to the High Court.  Ronald Young J dismissed the appeal and allowed the cross-appeal.

[4]       Mr Machirus tried to file a notice of appeal in this Court within time.  The notice was rejected for non-payment of the filing fee.  Mr Machirus says he does not operate a personal bank account and was unable to get a bank cheque to the Registry on time.  It appears that an initial attempt to file a leave application was unsuccessful because the notice was not in the prescribed form.

[5]       Some four weeks after the second notice was rejected, on 11 June 2007, Mr Machirus filed the present application for special leave.

[6]       The hearing of the application proceeded in the absence of Mr Machirus who did not appear or provide any explanation for his non-appearance.  Mr Machirus did file written submissions and we have considered those submissions.

Discussion

[7]       The Court may grant special leave to appeal out of time when granting leave would meet the overall interests of justice: Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [5] (CA).  As the authors of McGechan and McQueen (eds) McGechan on Procedure (looseleaf ed) observe, leave will not be granted where the appeal appears to be hopeless: [CR29.04(2)(h)] with reference to Prudential Building and Investment Society of Canterbury (In liquidation) v Hankins (1991) 5 PRNZ 160 at 162 (HC).

[8]       Mr Machirus wants to argue on appeal that the Judge was wrong to dismiss the claims under the Bill of Rights.  He claims that there has been a breach of the protections in the Bill of Rights against unreasonable search and seizure (s 21) and of the right to natural justice (s 27).

[9]       The Commissioner, in opposing the application, sought to make something of the delay in filing the notice of appeal.  In the circumstances, where the delay was not significant and an explanation provided, we do not see the delay of itself as conclusive.  The real issue is whether the appeal has any merit and it is because of the absence of merit that we decline to grant leave.

[10]     The breach of s 21 is said to arise from what Mr Machirus says was an illegal search of his property by the police in the mid-1990s and the transfer of information obtained from that search to the Commissioner.  The effect of the search and later transfer of the information, Mr Machirus argues, is that when his case was before the TRA he did not have all of the information he needed to argue the case.  He focused, in particular, on various receipts and cheque butts.  The claim in respect of s 27 is based on delay, an allegation Mr Machirus was misled by an employee of the Inland Revenue Department, and s 6 of the Tax Administration Act 1994 (responsibilities of officials).

[11]     Ronald Young J dismissed the argument relating to s 21 on the basis that, first, there was no evidence of any illegal search.  Second, that the evidence showed that Mr Machirus did in fact have all or at least most of the relevant information relating to his GST returns at the time of the TRA hearing.  The Judge also noted that the High Court made a series of orders, with the agreement of the Commissioner, allowing Mr Machirus to produce the documents at the appeal hearing but Mr Machirus did not take advantage of that opportunity.  Finally, the Judge said that the cheque butts had no real relevance to the case in any event.

[12]     On the s 27 claim, Ronald Young J queried whether s 27 applied to the Commissioner but said that Mr Machirus had not shown anything giving rise to a breach of s 27.

[13]     We can see no error in the approach taken by the Judge.  The real complaint Mr Machirus makes in this context is that he should not have had to advance any evidence to support his claims because the obligation was on the Commissioner to inform him of the transfer of the documentation in terms of s 17 of the Tax Administration Act 1994.  Assuming, without deciding, that there was an obligation on the Commissioner to inform Mr Machirus, any such obligation does not displace the requirement for Mr Machirus to establish his Bill of Rights claim in the usual way.  In any event, the reality is that it appears that all of the relevant information has now been provided to Mr Machirus.  This means Mr Machirus cannot have been disadvantaged in any way.  He was given the opportunity on his appeal to the High Court to show that he was at a disadvantage and he did not avail himself of that.

[14]     The appeal being without merit, the application for leave is dismissed.

[15]     We make no order for costs.

Solicitors:

Crown Law Office, Wellington