Russell v Commissioner of Inland Revenue

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-001281 [2014] NZHC 2956

UNDER the Judicature Amendment Act 1972

BETWEEN

JOHN GEORGE RUSSELL Applicant

AND

THE COMMISSIONER OF INLAND REVENUE

Respondent

Hearing: 25 November 2014

Appearances:

SRG Judd for Applicant
P Courtney for Respondent

Judgment:

25 November 2014

(ORAL) JUDGMENT (NO. 2) OF ANDREWS J [Respondent's application for recall]

RUSSELL v COMMISSIONER OF INLAND REVENUE [2014] NZHC 2956 [25 November 2014]

[1] In my judgment delivered on 26 August 2014 I granted the interim relief sought by the applicant, namely:1

… I have concluded that an interim order should be made prohibiting the Commissioner from commencing bankruptcy proceedings against Mr Russell, pending further order of the Court.

[2] The Commissioner has filed a notice of appeal against my judgment.

[3] On 3 November 2014, the Commissioner filed an application seeking recall of my judgment, to amend the form of relief granted. In a memorandum in support of the application, Mrs Courtney noted that my attention had not been drawn to s 8(2) of the Judicature Amendment Act 1972, and relevant consequential provisions in the Crown Proceedings Act 1950. Briefly summarised, Mrs Courtney submitted that the appropriate order to make against the Commissioner was a declaration that the Commissioner ought not to commence bankruptcy proceedings. She submitted that the Court did not have jurisdiction to make an “interim order”.

[4] I directed that the application be served on counsel for Mr Russell. On

24 November 2014, Mr Judd filed a memorandum opposing the application for recall. He submitted that it is by no means certain whether the appropriate form in which the Commissioner is to be restrained from taking certain actions is by way of a declaration or an order. He referred to cases where an order had been made.

[5] This issue was not argued before me at the hearing, I do not consider it appropriate to deal with it now. Accordingly, I decline the application for recall. The judgment is to be sealed as delivered.

[6] However, for the assistance of the parties, and any Court considering the judgment subsequently, I record that, whether the relief was in the form of a declaration or an order, it would have been to the same effect. That is, the Commissioner is restrained from commencing bankruptcy proceedings against
Mr Russell, pending further order of the Court.

Andrews J

1 Russell v Commissioner of Inland Revenue [2014] NZHC 2034 at [46].

CaseChat Overview and Summary

The High Court of New Zealand in Auckland dealt with a case between John George Russell, the applicant, and the Commissioner of Inland Revenue, the respondent. The matter revolved around the Commissioner's intent to initiate bankruptcy proceedings against Mr. Russell. On August 26, 2014, Justice Andrews had granted Mr. Russell an interim order to prevent the Commissioner from starting bankruptcy proceedings until further court order. The Commissioner, dissatisfied with this decision, filed an appeal against the judgment and subsequently applied for a recall of the judgment to alter the form of relief granted. The Commissioner's application for recall argued that the appropriate restraint on the Commissioner should have been a declaration rather than an interim order, as the court lacked jurisdiction to issue an interim order.

The court addressed the application for recall, noting that the issue of whether the relief should be in the form of a declaration or an order had not been argued before the court. The Commissioner contended that the relief should be a declaration, citing specific sections of the Judicature Amendment Act 1972 and the Crown Proceedings Act 1950. Counsel for Mr. Russell opposed the application, arguing that the form of relief was not definitively settled and that precedents existed for granting orders. Justice Andrews decided not to recall the judgment, as it was not appropriate to address the issue at that stage. However, the court noted that regardless of the form of relief, the effect was the same: the Commissioner was restrained from initiating bankruptcy proceedings against Mr. Russell pending further court order.

The court ultimately declined the Commissioner's application for recall, deciding to seal the judgment as delivered. The decision underscored that the relief, whether in the form of a declaration or an order, effectively restrained the Commissioner from taking action against Mr. Russell. This case highlights the procedural intricacies and the importance of precise legal terminology when issuing court orders, particularly in matters involving statutory constraints and jurisdictional boundaries.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	25 November 2014
Appearances:	SRG Judd for Applicant P Courtney for Respondent
Judgment:	25 November 2014