Muir v Commissioner of Inland Revenue

[2016] NZCA 579

IN THE COURT OF APPEAL OF NEW ZEALAND

CA276/2015
[2016] NZCA 579

BETWEEN	GARRY ALBERT MUIR First Applicant
AND	PETER ARNOLD MAUDE Second Applicant
AND	COMMISSIONER OF INLAND REVENUE Respondent

Hearing:	23 September 2015
Court:	Harrison, Dobson and Gilbert JJ
Counsel:	First Applicant in person S J Leslie for Respondent
Judgment:	5 December 2016 at 10 am

JUDGMENT OF THE COURT

AThe application for recall by the first applicant is dismissed.

BThe first applicant is ordered to pay costs to the respondent on an application for recall on an indemnity basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Harrison J)

1. In its judgment first delivered on 8 December 2015 this Court dismissed an appeal by the first and second applicants,[1] Garry Muir and Peter Maude, against a judgment of Faire J in the High Court striking out his application for judicial review against the Commissioner.[2]

   [1]Muir v Commissioner of Inland Revenue [2015] NZCA 591, (2015) 27 NZTC 22-034.

   [2]Muir v Commissioner of Inland Revenue [2015] NZHC 792; (2015) 27 NZTC 22-004

2. On 20 July 2016 the Supreme Court granted Mr Muir leave to appeal on two discrete questions.[3]  But on 26 August 2016 the Supreme Court declined Mr Muir’s application to amend his grounds of appeal, revoked its earlier decision and dismissed the appeal.[4]  On 7 November 2016 Mr Muir applied to this Court for an order recalling and reversing its judgment.[5]  In his submission this Court’s decision was wrong because it failed to consider issues raised in his pleadings, notice of appeal and written submissions. 

   [3]Muir v Commissioner of Inland Revenue [2016] NZSC 90, (2016) 27 NZTC 22-060.

   [4]Muir v Commissioner of Inland Revenue [2016] NZSC 113, (2016) 27 NZTC 22-067.

   [5]Mr Maude did not join Mr Muir’s application for recall.

3. We agree with Ms Leslie for the Commissioner that this Court has no jurisdiction to recall its earlier judgment.  That judgment has been the subject of an appeal to the Supreme Court.  Leave was granted but the appeal was dismissed.[6]  The merits of the Commissioner’s application to strike out Mr Muir’s application for judicial review have been finally determined by the Supreme Court.  This Court is now functus officio.[7]  And we agree with Ms Leslie that, even if we did have jurisdiction to recall, Mr Muir’s grounds are unarguable.

   [6]Muir v Commissioner of Inland Revenue, above n 4, at [11].

   [7]Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [44].

4. We agree with the Commissioner that Mr Muir’s application is an abuse of the process of this Court.  We dismiss his application and order him to pay costs to the Commissioner payable on an application for recall on an indemnity basis together with usual disbursements. 

Solicitors:

Crown Law Office, Wellington for Respondent