P (SC 46/2021) v Commissioner of Inland Revenue - [2021] NZSC 51

NOTE: SUPREME COURT ORDER PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF P, W AND A
REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 46/2021
[2021] NZSC 51

BETWEEN	P (SC 46/2021) Applicant
AND	COMMISSIONER OF INLAND REVENUE First Respondent W Second Respondent ATTORNEY-GENERAL Third Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	Applicant in person
Judgment:	28 May 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant seeks leave to appeal against a judgment of the Court of Appeal of 29 March 2021[1] which dismissed her application for recall of an earlier judgment of that Court delivered on 4 November 2019.[2] The Deputy Registrar has expressed the view that this Court has no jurisdiction to entertain the application.
[1]P (CA85/2019) v Commissioner of Inland Revenue [2021] NZCA 97 (Courtney, Duffy and Wylie JJ).
[2]P (CA85/2019) v Commissioner of Inland Revenue [2019] NZCA 531, [2019] NZFLR 322 (Courtney, Duffy and Wylie JJ).
The applicant still wished to pursue her application and applied for “review” of the decision. In accordance with the procedure outlined by this Court in Slavich v R, the Deputy Registrar referred the document filed by the applicant to a leave panel of judges.[3]
[3]Slavich v R [2015] NZSC 195, (2015) 23 PRNZ 117 at [9].
Section 68 of the Senior Courts Act 2016 provides:
68 Appeals against decisions of Court of Appeal in civil proceedings
The Supreme Court may hear and determine an appeal by a party to a civil proceeding in the Court of Appeal against a decision made in the proceeding, unless—
(a) an enactment other than this Act makes provision to the effect that there is no right of appeal against the decision; or
(b) the decision is a refusal to give leave or special leave to appeal to the Court of Appeal.
In concluding that there was no jurisdiction, the Deputy Registrar referred to Ngahuia Reihana Whanau Trust v Flight, a case about s 7 of the Supreme Court Act 2003.[4] This was in the same terms as s 68. In issue was an application for leave to appeal against a judgment of the Court of Appeal refusing to recall a leave decision. As the Court noted:
[3] The effect of s 7(b) of the Supreme Court Act [2003] is that the Court may not hear an appeal by a party to a civil proceeding against a refusal to give leave or special leave to appeal to the Court of Appeal. That prohibition must equally apply to an appeal against a refusal by the Court of Appeal to recall such a decision.

That reasoning is not applicable here as the Court of Appeal judgment of 4 November 2019 was not a leave decision. There is, however, another difficulty with the application.

[4]Ngahuia Reihana Whanau Trust v Flight (2004) 17 PRNZ 357 (SC).

An application for leave to appeal against the 4 November 2019 judgment was dismissed by this Court on 18 March 2020.[5] A further application for leave to appeal, treated as an application to recall the 18 March 2020 judgment, was dismissed on 20 May 2020.[6] The current application is therefore the third in this Court, and fourth counting the recall application to the Court of Appeal, which the applicant has filed by way of challenge (direct or indirect) to the 4 November 2019 judgment. The point has now been reached where her repeated challenges to this judgment have become an abuse of process.
[5]P (SC 120/2019) v Commissioner of Inland Revenue [2020] NZSC 22, [2020] NZFLR 84.
[6]P (SC 120/2019) v Commissioner of Inland Revenue [2020] NZSC 50.
Accordingly, the application is dismissed as an abuse of process.

Details

AGLC: P (SC 46/2021) v Commissioner of Inland Revenue [2021] NZSC 51
Case: [2021] NZSC 51
Decision Date: 28 May 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an appeal by P against the Commissioner of Inland Revenue, with the appeal concerning the jurisdictional limits of the Court's ability to hear appeals against decisions of the Court of Appeal in civil proceedings. The Court was asked to decide whether the appeal was within its jurisdiction under section 68 of the Senior Courts Act 2016, which provides for appeals against decisions of the Court of Appeal in civil proceedings, except in specific circumstances outlined in the statute.

The legal issue before the Court was whether the repeated attempts by P to challenge the Court of Appeal's decision constituted an abuse of process, thereby rendering the appeal beyond the Court's jurisdiction. This issue arose due to the applicant's previous attempts to appeal the same judgment, which had been dismissed by the Court on multiple occasions. The Court needed to determine whether these repeated challenges were legitimate attempts to seek justice or if they amounted to an abuse of the judicial process.

The Court found that the repeated attempts to challenge the same judgment constituted an abuse of process. The Court cited its previous decisions and noted that the applicant's continued pursuit of the same appeal, despite multiple dismissals, demonstrated a disregard for the Court's authority and the principles of judicial economy. Consequently, the Court held that the application was dismissed as an abuse of process, affirming its earlier decisions and maintaining the original judgment of the Court of Appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 68 of the Senior Courts Act 2016 provides:68 Appeals against decisions of Court of Appeal in civil proceedingsThe Supreme Court may hear and determine an appeal by a party to a civil proceeding in the Court of Appeal against a decision made in the proceeding, unless—(a) an enactment other than this Act makes provision to the effect that there is no right of appeal against the decision; or(b) the decision is a refusal to give leave or special leave to appeal to the Court of Appeal. In concluding that there was no jurisdiction, the Deputy Registrar referred to Ngahuia Reihana Whanau Trust v Flight, a case about s 7 of the Supreme Court Act 2003.[4] This was in the same terms as s 68. In issue was an application for leave to appeal against a judgment of the Court of Appeal refusing to recall a leave decision. As the Court noted:[3] The effect of s 7(b) of the Supreme Court Act [2003] is that the Court may not hear an appeal by a party to a civil proceeding against a refusal to give leave or special leave to appeal to the Court of Appeal. That prohibition must equally apply to an appeal against a refusal by the Court of Appeal to recall such a decision. An application for leave to appeal against the 4 November 2019 judgment was dismissed by this Court on 18 March 2020.[5] A further application for leave to appeal, treated as an application to recall the 18 March 2020 judgment, was dismissed on 20 May 2020.[6] The current application is therefore the third in this Court, and fourth counting the recall application to the Court of Appeal, which the applicant has filed by way of challenge (direct or indirect) to the 4 November 2019 judgment. The point has now been reached where her repeated challenges to this judgment have become an abuse of process.[5]P (SC 120/2019) v Commissioner of Inland Revenue [2020] NZSC 22, [2020] NZFLR 84. [6]P (SC 120/2019) v Commissioner of Inland Revenue [2020] NZSC 50. Accordingly, the application is dismissed as an abuse of process.

Ratio Decidendi

Legal Principle Established

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