P v High Court of Auckland

[2022] NZHC 1382

NOTE: SUPREME COURT ORDER PROHIBITING PUBLICATION OF THE NAME OR IDENTIFYING PARTICULARS OF P, W AND

THE CHILD REMAINS IN FORCE. SEE [2020] NZSC 22.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-19

[2022] NZHC 1382

BETWEEN

P

Plaintiff

AND

HIGH COURT OF AUCKLAND

First Defendant

COURT OF APPEAL
Second Defendant

COMMISSIONER OF INLAND REVENUE

Third Defendant

ATTORNEY-GENERAL

Fourth Defendant

On the papers
Judgment:	13 June 2022

JUDGMENT OF ELLIS J

[1]    Ms P and Mr W are the parents of a child (A). Ms P was primarily responsible for A from her birth in 2009 and Mr W was liable to pay child support from when A was around four months old. In 2017, Ms P (still living in New Zealand) and Mr W (now living in Australia) agreed that A should have an extended stay with Mr W. The

P v HIGH COURT OF AUCKLAND [2022] NZHC 1382 [13 June 2022]

child joined him in Australia from 24 December 2017 and remained there until 22 July 2018.

[2]    Ms P did not consider this a change in A’s care arrangements because half of the period A was with her father (December 2017 to March 2018) fell within the 2018 child support year, while the other half (April 2018 to June 2018) fell within the 2019 child support year. Ms P contended that she had provided at least 73 per cent of A’s care in each of those two child support years.

[3]    The Commissioner of Inland Revenue (the Commissioner) disagreed. Child support payments were reassessed and Mr W’s liability to pay child support from late December 2017 was extinguished on the basis it would not be appropriate to charge Mr W child support for a period of six months or longer when A was in his full-time care.

[4]    Ms P challenged that assessment. In 1 June 2018 she filed an appeal to the Family Court under s 102 of the Child Support Act 1991. Three weeks later, she filed an application for judicial review in the High Court.

[5]    Because both the appeal and the application for review raised the same issue,1 the Family Court proceeding was stayed pending the determination of the High Court proceeding. Then:

(a)on 7 February 2019 the High Court dismissed the application for review;2

(b)Ms P filed an appeal from that decision in the Court of Appeal;

(c)on 20 June 2019 the Family Court struck out the original appeal as an abuse of process (because of the parallel higher court proceedings);3

1      In broad terms, the issue was when liability to pay child support ceases under s 25(3) of the Act, which in turn depended on the parents’ division of “ongoing daily care” (which is not defined in the Act).

2      P v Commissioner of Inland Revenue [2019] NZHC 98; [2018] NZFLR 956.

3      P v Commissioner of Inland Revenue [2019] NZFC 4545.

(d)on 4 November 2019 the Court of Appeal dismissed Ms P’s appeal against the High Court judgment;4

(e)on 18 March 2020 the Supreme Court declined Ms P’s application for leave to appeal the Court of Appeal’s judgment;5

(f)on 20 May 2020 the Supreme Court dismissed:6

(i)Ms P’s application to review the decision of the Deputy Registrar not to accept her further application for leave to appeal for filing; and

(ii)her application for recall of the 18 March judgment;

(g)on 14 July 2020 the High Court dismissed Ms P’s application for recall of its 7 February 2019 judgment;7

(h)on 29 March 2021 the Court of Appeal dismissed Ms P’s application for recall of its 4 November 2019 judgment;8

(i)on 28 May 2021 the Supreme Court dismissed Ms P’s application for leave to appeal the Court of Appeal’s 29 March 2021 (recall) judgment, noting:9

The current application is … 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.

4      P (CA 85/2019) v Commissioner of Inland Revenue [2019] NZCA 531; [2019] NZFLR 322 (reissued on 3 December 2019).

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.

7      P v Commissioner of Inland Revenue [2020] NZHC 1676.

8      P (CA 85/2019) v Commissioner of Inland Revenue [2021] NZCA 97.

9      P (SC 120/2019) v Commissioner of Inland Revenue [2021] NZSC 51 at [5].

[6]    On 21 June 2021 Ms P filed a claim in the Human Rights Review Tribunal (HRRT) in which she expressly stated:

I have failed disputing this cessation [the Commissioner’s decision] within Judicial Review, and now intend to challenge discriminatory aspects of the decision as it was made.

[7]    On 14 December 2021 the HRRT struck out this claim on a number of grounds, including that:10

(a)it was a clear and collateral attack on previous decisions of this Court, the Court of Appeal and the Supreme Court, which is not only prohibited by ss 79 and 92B of the Human Rights Act 1993 but also, as a matter of fundamental principle, an abuse of process;

(b)because the discrimination claim could have been raised in the High Court, but was not, it offended the principle that a litigant must bring his or her whole case and will generally be prevented from later attempting to advance the same issues on some different basis; and

(c)there was, in any event, no factual foundation for the discrimination claim.

[8]    Ms P filed an appeal from that decision in this Court. She seeks to challenge the conclusions that it is an abuse of process and (in particular) the conclusions just referred to at [7](a) and [7](c) above.

[9]    The notice of appeal was then referred to me by the Registrar, before releasing it for service, under r 5.35A of the High Court Rules on the grounds that it is plainly an abuse of process of the court. Under r 5.35B I have the power to order that the appeal be struck out if I agree with that assessment.

10     P v High Court of Auckland [2021] NZHRRT 56.

Discussion

[10] Although I can understand Ms P’s point that the discrimination claim is, in a sense, different from the claim she advanced on judicial review, the point is answered by the HRRT’s further conclusion, summarised at [7](b) above. As Ms P herself recognises, discrimination on any of the prohibited grounds set out in the Human Rights Act is itself a breach of the New Zealand Bill of Rights Act 1990 and so could (and should) have been advanced in the context of the judicial review proceedings.11 And as the HRRT said, the principle of finality is an important one, first recognised by Wigram V-C in Henderson v Henderson:12

[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.

[11]   Although no estoppel arises in such cases, proceedings brought in breach of this principle are properly regarded as an abuse of process.

[12]   And even if that conclusion was incorrect (which I do not think it is) the further reality remains that Ms P’s claim did not assert any tenable factual basis for a discrimination claim. That is because such a claim would require Ms P to establish (as a matter of fact) that the Commissioner treated her differently from other people in the same or a similar position on the basis of family status. I have read Ms P’s claim and the Tribunal was plainly right: no facts are pleaded that might support such a contention in this case.

[13]   Accordingly, in my view the HRRT was plainly right to strike out Ms P’s further claim as an abuse of process. It follows that the appeal from that decision is also an abuse of process and I strike it out accordingly.

11     A Butler and P Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexisNZ, Wellington, 2015) at 17.23.4.

12     Henderson v Henderson (1843) All ER Rep 378 at 381.

[14]   The orders made previously as to the suppression of the names and identifying particulars of Ms P, her daughter and her ex-partner (Mr W) continue to pertain.

Rebecca Ellis J