Russell v Commissioner of Inland Revenue HC Auckland CIV 2007-404

[2010] NZHC 1018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-006653

BETWEEN  JOHN GEORGE RUSSELL Appellant

ANDTHE COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:         14 April 2010

Appearances: S R G Judd for the Appellant

M J Ruffin for the Respondent

Judgment:      14 April 2010 at 4:30 pm

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 14 April 2010 at 4:30pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors/Counsel:

Ladbrooks Solicitors, P O Box 37 633, Parnell, Auckland

Meredith Connell, P O Box 2213, Shortland Street, Auckland 1140

S R G Judd, P O Box 3320, Shortland Street, Auckland 1140

M J Ruffin, P O Box 1662, Shortland Street, Auckland 1140

J G RUSSELL V THE COMMISSIONER OF INLAND REVENUE HC AK CIV 2009-404-006653  14 April

2010

[1]      Mr Russell seeks an adjournment of the hearing of this appeal.  I convened a telephone conference this morning in this regard.

[2]      The matters the subject of the appeal to this Court were heard by Judge Barber in the Taxation Review Authority (“the Authority”).   Prior to the commencement of that hearing, the Judge was asked to recuse himself.  He declined to do so.  Mr Russell then applied for judicial review of that refusal.  He sought an interim order pursuant to s 8 of the Judicature Amendment Act 1972 staying the proceedings before the Authority pending the outcome of that application.   That

application was dismissed by Keane J on 27 September 2005.[1]    As a result, the

proceedings before Judge Barber continued, even though the application for judicial review regarding the appropriateness of Judge Barber hearing the case had not been finally resolved.

[1] Russell v Taxation Review Authority HC Auckland CIV-2005-404-5203 27 September 2005.

[3]      The substantive judicial review application was heard by Cooper J between

31 March 2008 and 2 April 2008.  His Honour gave judgment on 19 December 2008 dismissing Mr Russell’s claim.[2]   An appeal against that judgment was lodged on

5 February 2009.   However, the hearing of this appeal was delayed.   I understand that this was because the proceedings by Judge Barber were by then so far advanced that it made sense to wait for the Authority’s determination before hearing the appeal on the disqualification issue.  The Commissioner, at Mr Russell’s request, consented to a delay by Mr Russell in filing his case on appeal.  Eventually the case on appeal was filed and in February 2010, the appeal was allocated a fixture date of 5 August

2010.

[2] Russell v Taxation Review Authority (2009) 24 NZTC 23.284 (HC).

[4]      Mr Judd submits that an adjournment of the fixture in this Court set down for

26 July 2010 is appropriate for the following reasons:

a)       Logic suggests that the issue of whether or not the Judge should have disqualified himself from sitting on the case should be resolved prior to consideration of the correctness of the Judge’s findings.

b)It  is  not  fair  to  require  Mr  Russell  to  incur  substantial  costs  in preparing for and arguing a four week appeal that may turn out to be unnecessary.

c)       It is not in the interest of the taxpaying public for the Commissioner to incur the substantial costs for preparing for and arguing a four week appeal that may turn out to be unnecessary.

d)It is not fair to other litigants who are anxious to have their cases determined to risk wasting four weeks of Court time that could be used for other cases.

e)       It  is  not  in  the interests  of  the public for  the  Court  and  its  staff involved in dealing with the case to spend time preparing for and hearing the appeal, when it may turn out to be unnecessary.

f)        There is no prejudice to the Commissioner in allowing the appeal to the Court of Appeal on the disqualification issue to be heard and determined first.

[5]      Mr  Ruffin  for  the  Commissioner  resists  the  application.     The  following reasons are given:

a)       The  appeal  is  to  be  pursuant  to  s  26A  of  the  Taxation  Review Authorities  Act  1994,  and  it  proceeds  by way of  rehearing under r 7.18 of the High Court Rules.

b)This  Court  will  have  to  come  to  its  own  conclusions  based  on materials before it and any further evidence which may be admitted. He refers to the decision of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar,[3] and in particular to the observations of Elias CJ at [16].

[3] [2008] 2 NZLR 141 (SC).

c)       There are no findings of credibility involved, and the issues which this Court will have to consider require the application of objective standards,  by reference  to  documents  which,  in  most  cases,  came before the Authority by consent.

d)Cooper J’s decision is sound and the appellant’s position is not realistically arguable on appeal.

e)       The Commissioner had consented to a delay of six months for the case on appeal to be filed in the Court of Appeal in relation to Cooper J’s decision so as to wait the decision of the Authority.  Had that delay not occurred, the case would have been heard earlier, and the parties would not be in the present situation.

f)        There is no merit in delaying the hearing of the appeal before the appeal in the Court of Appeal has been dealt with.

Analysis

[6]      Rule 10.2 or High Court Rules is in point.  It provides that the Court may, before or at trial, if it is in the interest of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.

[7]      The paramount consideration is the interests of justice as between the parties. I refer to the decision of Tipping J in O’Malley v Southern Lakes Helicopters Ltd.[4]

[4] HC Christchurch CP513/89 4 December 1990

[8]      I am not persuaded that it is the interests of justice to adjourn the hearing of the appeal due to commence on 26 July 2010.  The Commissioner wishes to retain the fixture.  There is a considerable amount of tax at stake, and in my view it is in the wider public interest that the appeal should be resolved as soon as is reasonably practicable.  Further, it is in Mr Russell’s interests to have matters resolved.  He is entitled to know where he stands so that he can order his affairs accordingly.  If an

adjournment is to be granted, it is unlikely that the Court will be able to allocate another four week fixture until well into 2011.  A delay of this magnitude would be undesirable for both parties.

[9]      Further, there is force in Mr Ruffin’s submission that the appeal will proceed by way of a rehearing.   I accept the submission made by Mr Judd that I will be constrained to an extent by the way in which the case was conducted and run before the Authority.   Nevertheless, as I understand it, a large number of the documents relevant to the matters raised by the appeal were admitted by consent and there are no issues as to Mr Russell’s credibility.  The appeal will proceed by way of rehearing and the parties are entitled to judgment in accordance with my opinion, even where that opinion requires an assessment of matters of fact and degree and entails a value judgment.   If I conclude that the Authority was wrong, then Mr Russell will be entitled to judgment, notwithstanding that my conclusion may be one on which reasonable minds might reasonably differ.  The converse will apply if I conclude that the Authority was right.  To an extent, the rehearing could render otiose the assertion by Mr Russell that Judge Barber had a bias, whether actual or apparent, against him.

[10]     Moreover, although not an issue I have to consider, it is difficult to escape the conclusion that Cooper J’s decision is sound.  In this regard, I note that Cooper J’s view coincided at least in part with the view of Keane J.  The allegation of bias has been made before two Judges of this Court and has been dismissed by both.

[11]     There is nothing unusual in this Court proceeding with a matter when an appeal to the Court of Appeal is outstanding.  While I accept that Mr Russell will incur costs, in large part those costs will have to be incurred in any event, whenever this appeal is heard.

[12]     In my view, Mr Russell, the Commissioner and the wider public are entitled to expect that the appeal against the Authority’s decision will be dealt with promptly. The Court is in a position to accommodate that expectation and it is not in the interests of justice to adjourn the hearing of the appeal because there is an appeal to the Court of Appeal outstanding.

[13]     I will of course accommodate Mr Judd and adjourn the hearing of the appeal for such period as may be reasonably necessary to enable him to attend the fixture in the Court of Appeal.

[14]     The application is dismissed.  Costs are reserved.

Wylie J