Mawhinney v Commissioner of Inland Revenue

[2013] NZHC 1983

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2360 [2013] NZHC 1983

IN THE MATTER OF

JUDICATURE AMENDMENT ACT 1972 AND THE GOODS AND SERVICES ACT 1985 AND THE TAX ADMINISTRATION ACT 1994

BETWEEN

PETER WILLIAM MAWHINNEY AS TRUSTEE OF THE FOREST TRUST

Applicant

AND

THE COMMISSIONER OF INLAND REVENUE

Commissioner

REGISTRAR OF THE TAXATION REVIEW AUTHORITY

Second Respondent

Hearing:

7 August 2013

Appearances:

Applicant in person

P Courtney and M Evans for Commissioner and Second Respondent

Ruling:

7 August 2013

RULING NO.1 OF COOPER J

Solicitors:

Crown Law Office, Wellington

MAWHINNEY v THE COMMISSIONER OF INLAND REVENUE [2013] NZHC 1983 [7 August 2013]

[1]   A preliminary issue has been raised as to whether the Court should read what Mr Mawhinney has described as the fourth affidavit, which has very recently been filed. It is in fact only the second affidavit. Mr Mawhinney has explained that two other affidavits, which he would call affidavits two and three, were prepared but never served or filed.

[2] The affidavit upon which he now seeks to rely, sworn on 3 August 2013, is over 400 pages long. It deals with matters that he claims to be relevant, but the Commissioner disputes. Not only does the Commissioner dispute the relevance, but she also says that there are factual matters asserted in the affidavit which, had there been time, she would have wanted to call evidence about so as to rebut it.

[3] In this case there was a timetable order made on 19 June 2013. That order required at paragraph [5], that documents in opposition to the application be filed and served no later than 28 June 2013. This affidavit was filed on 5 August. It is very late and Mr Mawhinney’s only explanation of the lateness is that he has only recently appreciated the need to deal with matters on which he would wish to rely by way of affidavit evidence.

[4] I am not convinced that there is any basis upon which I should accept the affidavit. Mr Mawhinney, notwithstanding that he is a lay person, is a very experienced litigant and I assume that he realises that Court Orders, such as that which was made fixing the timetable, should be complied with.

[5] The prejudice to him of not having the affidavit read is, in the circumstances, self-induced. However, it may not be important in any event having regard to the nature of the arguments that the Commissioner wishes to present and by that I mean to refer to the submissions in writing which would make matters such as when various notices under the Act were received, irrelevant.

[6] It also seems to me that for the purposes of the protest to jurisdiction matter, allegations in the statement of claim to the extent that they relate to matters of fact ought to be assumed as being capable of being approved to the extent to which they are relevant.

[7]      In all the circumstances I am not prepared to read the affidavit in question.