P v Commissioner of Inland Revenue

[2020] NZHC 1676

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SECTIONS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-64

[2020] NZHC 1676

BETWEEN

P

Applicant

AND

COMMISSIONER OF INLAND REVENUE

First respondent

W
Second respondent

ATTORNEY-GENERAL

Third respondent

Hearing:

On the papers

Appearances:

Applicant in person

E J Norris and O L Wilkinson for the first and third respondents Second respondent abiding the decision of the Court

Date:

14 July 2020

JUDGMENT OF PALMER J

This judgment was delivered by me on Tuesday 14 July 2020 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Party/Solicitors:

Applicant in person Crown Law, Wellington

P v COMMISSIONER OF INLAND REVENUE [2020] NZHC 1676 [14 July 2020]

The proceedings

[1]                  On 7 February 2019, I issued judgment in this proceeding.1 In summary, the judgment said:

[1]  In March 2018, the Commissioner of Inland Revenue stopped paying child support to Ms P. The Commissioner assessed Ms P as not being responsible for providing “at least 35%” of her daughter’s “ongoing daily care” because her daughter had been living with her father, Mr W, in Australia since December 2017 and was expected to do so until at least June 2018. The Child Support Act 1991 (the Act) does not explicitly specify the period over which the care of a child is to be calculated for this purpose. Ms P argues she cared for her daughter for more than 35 per cent of the two relevant child support years. She challenges the Commissioner’s decision by way of judicial review.

[2]    I do not accept the child support year is the only possible basis for calculating the period over which ongoing daily care is assessed. Usually, the relevant period can be expected to be the term of the arrangement, or the period of the regular pattern, of care being assessed by the Commissioner. The Commissioner will need to assess whether short term changes to an arrangement or regular pattern change the overall relative proportions of care on the basis of the circumstances of each case. The key requirement on parents is to be clear in agreeing on their childcare arrangements and to communicate that to Inland Revenue.

[3]   Here I consider it was reasonable, and consistent with the Act, for the Commissioner to assess the previous care arrangement as having ceased and to assess Mr W as having ongoing daily care of their daughter in March 2018. I do not consider the Commissioner’s decisions were unlawful. They equitably reflected the parents’ relative levels of provision of care at the time. When the circumstances changed, a new application could be made, as it was, and a new decision made, as it was. I decline the application for judicial review.

[2]                  Ms P appealed to the Court of Appeal. On 4 November 2019, the Court of Appeal dismissed the appeal.2 It held, as it said Ms P accepted, that the Commissioner was entitled to conclude that the parties’ living circumstances had changed. It held the effect of ss 86 and 87 of the Act was that the Commissioner was accordingly entitled to amend the existing assessment as she did.3 The Court let costs lie where they fell because “[t]he points raised in this appeal were not entirely straight forward, partly because there is no defined meaning of ‘ongoing daily care’ and no previous authority on that question”.4

1      P  v  Commissioner  of  Inland  Revenue  [2019]  NZHC  98.     The judgment was re-issued in anonymised form.

2      P (CA85/2019) v Commissioner of Inland Revenue [2019] NZCA 531, [2019] NZFLR 322.

3 At [32].

4 At [35].

[3]                  Ms P sought leave to appeal to the Supreme Court. On 18 March 2020, the Supreme Court dismissed the application for leave to appeal, stating:5

Ms P’s arguments do not have sufficient prospects of success to warrant us granting leave to appeal. Nothing raised in her submissions suggests a risk that the Courts below erred in their application of the legislation in the particular circumstances of this case. There is therefore no risk of a miscarriage of justice.

[4]                  The Supreme Court dismissed Ms P’s further applications to review the decision of a Deputy Registrar not to accept a further application for leave to appeal, and to recall its judgment.6

Application and submissions

[5]                  Now, Ms P applies to recall the judgment of 7 February 2019 on that ground. She submits counsel failed to draw attention to the Act not explicitly specifying the period over which the care of a child is to be calculated for the purposes of child support. She submits counsel failed to draw attention to ss 2(2) and 89A(3) of the Act. She submits the judgment considered but contradicted s 4(f) of the Act.

[6]                  Ms Norris, for the Commissioner, submits the judgment cannot be recalled under r 11.9 because it was sealed before the appeal to the Court of Appeal and none of the limited occasions for recall of a sealed judgment are available. She submits s 2(2) of the Act was drawn to the Court’s attention and reflected in the judgment.

Should the judgment be recalled?

[7]                  In Horowhenua County v Nash (No 2), Wild CJ stated that “[t]here are, I think, three categories of cases in which a judgment not perfected may be recalled – . . . secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance”.7 Rule 11.9 of the High Court Rules 2016 provides a judgment may be recalled “at any time before a formal record of it is drawn up and sealed”.

5      P (SC 120/2019) v Commissioner of Inland Revenue [2020] NZSC 22 at [9] (citation omitted).

6      P (SC 120/2019) v Commissioner of Inland Revenue [2020] NZSC 50.

7      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

[8]                  The grounds for recalling a judgment which has been sealed are narrower than those for recalling a judgment which has not been sealed.8 In Farquhar v Property Restoration Ltd, Hardie Boys J in the Court of Appeal stated:9

It is clearly settled law that once a judgment is sealed it must stand, for better or worse, subject of course to any further rights of appeal. There are certain recognised exceptions: for example an accidental slip or omission may be rectified; a judgment may be set aside, usually by separate action, where it was obtained by fraud; a case may sometimes be reopened where fresh evidence not previously available has come to light; in some cases a judgment obtained by consent may be reopened; and in some circumstances a supplementary judgment may be given to cover a matter not previously dealt with. The present case does not fall within any of these exceptions.

[9]                  So, a judgment which has been sealed can only be recalled in exceptional circumstances on the basis of the inherent jurisdiction of the Court. It is relevant here that the judgment proposed to be recalled was not only sealed but the applicant has already pursued her right to appeal, unsuccessfully, and her application for leave to appeal further has been dismissed (twice).

[10]              None of the exceptional circumstances for the recall of a sealed judgment are present here. Even if it had not been sealed, I do not consider there would have been grounds for recall of the judgment. Contrary to Ms P’s submission, the lack of explicit specification of the period over which care of a child is calculated was drawn to the attention of the Court and considered in the judgment (as it was in the Court of Appeal’s judgment).10 So was s 2(2).11 Section 89A provides merely that the outline of the part of the Act in that section “is intended only as a guide to the general scheme and effect of this Part” and makes no difference. The judgment, and the appeal judgments, seek to achieve, rather than contradict, the objectives of the Act. I dismiss the application.

Palmer J

8      Aubit Industries Ltd (in rec, in liq) v Cable Price Corp Ltd HC Auckland CP 1698/90, 2 April 1993, at 2–3.

9      Farquhar v Property Restoration Ltd CA 186/89, 27 May 1991 at 4.

10     P v Commissioner of Inland Revenue, above n 1, at [1] and [34].

11     P v Commissioner of Inland Revenue, above n 1, at [28].