Rowell v District Court

[2017] NZHC 2706

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2017-406-17 [2017] NZHC 2706

UNDER	the Judicial Review Procedure Act 2016
IN THE MATTER	of an application for Judicial Review
BETWEEN	BRIAN CYRIL ROWELL Applicant
AND	DISTRICT COURT First Respondent
AND	ATTORNEY-GENERAL Second Respondent

Hearing:	2 November 2017
Counsel:	Applicant in Person P D Marshall for Second Respondent
Judgment:	6 November 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Rowell applies to judicially review the decision of the District Court to decline  an  application  under  s 147  of  the  Criminal  Procedure Act 2011.1      The application related to 26 of the 31 charges Mr Rowell faces, and turned on whether the charges had been laid within the statutory timeframe.

[2]      The second respondent asks the Court to dismiss the proceedings on the basis that pre-trial judicial review should not be entertained except in compelling circumstance.   It relies for this proposition on a decision of mine,  DGN v The

Auckland, Manukau, Papakura, and Waitekere District Courts where I expressed

1      R v Rowell [2017] NZDC 14756.

ROWELL v DISTRICT COURT [2017] NZHC 2706 [6 November 2017]

that position in firm terms.2   I adhere to it.  However, in that decision I also identify that  in  order to  avoid  the delay and  expense,  strike out  applications  should  be considered.  That did not occur here and so I am presented today with a fully argued case on a narrow point of law.  Since the review proceedings have reached this point, I see little profit in declining to hear and determine them.

[3]      I again add, however, that consistent with the views expressed in DGN, I respectfully suggest the District Court should not in any way defer the Criminal Procedure Act processes to allow this type of application to be resolved.   This application should at best run parallel to advancing the hearing of the charges.

Issue

[4]      Mr Rowell  is  charged  with  aiding  and  abetting  companies  to  file  false information concerning GST liability. As a sample, one charge reads:

That BRIAN CYRIL ROWELL, on 11 September 2011, at Blenheim, aided or abetted Empty Trucks New Zealand Limited to knowingly provide false information,  namely  a   false  self-assessment   return   under   s 92B  Tax Administration Act 1994 to the Commissioner of Inland Revenue, with the intention of obtaining a refund of GST to which it had no lawful entitlement.

[5]      Mr Rowell contends that s 14 of the Summary Proceedings Act 1957 required the charge to be filed within six months of the conduct occurring.   The Crown contends, and the District Court agreed, that the situation is governed by s 150A of the Tax Administration Act 1994.  It provides:

150A   Charging document may be filed within 10 years for income tax and GST offences

(1)       A charging document for an offence against—

(a)      this  Act  (other  than  an  offence  against  any  of  sections

143A(1)(b),   143B(1)(b),   143C(1),   143D(1),   143E(1),

143F(1), 143H(1), and 147(1)); or

(b)       any regulation made under section 225 of this Act or under the Income Tax Act 2007 or the Goods and Services Tax Act 1985—

2      DGN v The Auckland, Manukau, Papakura, and Waitekere District Courts [2015] NZHC 3338.

That decision reflects a long line of pre-Criminal Procedure Act authority to the same effect.

may be filed at any time within 10 years after the termination of the year in which the offence was committed.

(2)       Subsection (1) applies only where the offence against this Act relates to a tax law that is a provision of the Income Tax Act 2007 or the Goods and Services Tax Act 1985, or to an obligation that exists in relation to either of those Acts.

[6]      Mr Rowell’s basic point is that he is charged with providing false information in a self-assessment return.  That return is filed under the Tax Administration Act and not the Income Tax Act 2007 or Goods and Services Tax Act 1985.  So, s 150A(2) does not apply.  The focus in on the self-assessment, not on the GST return of which the assessment forms part.

[7]      Mr Rowell traversed the legislative history and noted the self-assessment provisions of the Tax Administration Act were introduced in 2005.   At that time s 150A(2) should have been amended to include reference to the Tax Administration Act as well as the Income Tax Act and Goods and Services Act.  The failure to do so creates a lacuna into which his case falls.

[8]      The submission places insufficient weight on the wording of s 150A(2).  The provision requires that the offence:

(a)       must relate to a tax law; and

(b)      that tax law must arise out of the Income Tax Act or Goods and

Services Act.

[9]      At  that  point  s 16  of  the  Goods  and  Services  Act  becomes  relevant. Section 16(1) provides that:

A registered person must provide a return setting out the amount of tax

payable by them for a taxable period…

[10]     Section 16(6) provides:

A return must contain a notice of the assessment that must be made under section 92B of the Tax Administration Act 1994.

[11]     It  can  be  seen  that  the  allegedly  false  self-assessment  return  filed  by Mr Rowell on behalf of his companies is filed to comply with the obligations in ss 16(1) and 16(6) of the Goods and Services Act.  This means the offences he faces “relate to” a Goods and Services tax obligation.

[12]     Mr Rowell relies on the statutory mechanisms concerning GST returns and whether the Commissioner can or cannot revisit them once the Commissioner has made a refund under s 45 of the GST Act.  The import of his submission is that the GST return component at that point becomes complete, and any review must thereafter occur under the Tax Administration Act.   This is said to illustrate that everything is happening under that Act and not the Goods and Services Act, and so s 150A(2) which is limited to the Income Tax and GST Acts cannot apply.  In my view  that  structure  is  beside  the  point  in  terms  of  s 150A,  which  falls  to  be interpreted on its own terms.   Its purpose is plainly to extend the time for filing charges for any conduct undertaken in relation to these two fundamental tax obligations – income tax and GST.  That extension is achieved by requiring that the charge “relate to” obligations under those Acts.    It matters not, for the purposes of s 150A, if the falsity is in the GST return itself or in the self-assessment return that forms part of that return.

[13]     The application for judicial review is dismissed.  The second respondent is entitled to an award of 2B costs and reasonable disbursements to be fixed by the Registrar if necessary.

[14]     Finally, I note that Mr Rowell has automatic appeal rights.   I refer to my earlier comments and indicate that in my view the progression of these charges should not be deferred to accommodate such an appeal should Mr Rowell choose to file one.  It is always open to the Court of Appeal to stay progress if it thinks that

appropriate.

Simon France J