Russell v District Court (Manukau)

[2004] NZCA 252

IN THE COURT OF APPEAL OF NEW ZEALAND

CA232/03

BETWEENJ G RUSSELL

Appellant

ANDTHE DISTRICT COURT (MANUKAU)

First Respondent

ANDCOMMISSIONER OF INLAND REVENUE

Second Respondent

Hearing:30 September 2004

Coram:Anderson P
Hammond J
William Young J

Appearances:  S R G Judd for Appellant

S P France and R J Wallace for First and Second Respondents

Judgment:6 October 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       The Courts regard with considerable diffidence applications for judicial review of interlocutory decisions of the District Court, particularly in its summary criminal jurisdiction.  There could hardly be a better exemplification of the need for such diffidence than the present case.  It began with summary informations in the District Court, laid in December 1996, for alleged breaches of s 17 Inland Revenue Department Act 1974 and s 17 Tax Administration Act 1994 in failing to comply with formal requests for information relating to the business and tax affairs of undertakings with which Mr Russell is associated.  The informations had been proceeded by very large numbers of requests which, together with the informations, are regarded by Mr Russell as in the nature of a blitzkreig strategy against him originating from a conspiracy involving misfeasance and general abuse of powers by the Commissioner of Inland Revenue and his officers.  Resolute in his view that there is such a conspiracy, he sought discovery from the Department on a wide front with a view to obtaining documentary evidence to support a defence that the notices upon which the informations are founded are invalid through having been issued in bad faith and not for legitimate purposes envisaged by the revenue statutes.

[2]       In a pre-trial direction given on 29 January 1998 Judge Simpson required the Commissioner to file and serve an affidavit dealing with various matters including the following:

(d)Annexed to the affidavit as exhibits should be copies of all interdepartmental memoranda in respect of the identified typical cases;

(e)Annexed to the affidavit as exhibits should be copies of records of meetings of the so-called Russell team insofar as they apply to the identified typical cases;

(f)Annexed to the affidavit should be all correspondence from head office and any other such memoranda including legal opinions which make any reference to the issues involved in the identified typical cases except such communications as may be privileged;

(g)Annexed to the affidavit should be any other memoranda not included in items (a) to (f) above which would have any bearing on, or otherwise assist, the defendants to respond to the allegations in respect of the identified typical cases.

[3]       Mr Russell was not satisfied that the directions had been complied with in certain respects and on 19 and 20 November 1998, by his then counsel, he argued in support of several applications before Judge Simpson relating to alleged non-compliance.  One of his complaints is that documents which had been supplied had excisions, apparently on the alleged grounds of irrelevance or legal professional privilege.  Mr Russell argued that the documents should be supplied in an unedited form and made a formal application for the Commissioner to comply with Direction (g) made on 29 January 1998.  Other applications asked the Court to examine the documents for compliance with the alleged legal professional privilege and to direct disclosure of those which were not the subject of privilege.  He also asked the Court to direct the lawyers advising and/or engaged on behalf of the Commissioner to file affidavits justifying the claims for privilege.  This step had apparently been taken in Miller & Ors v CIR (1997) 18 NZTC 13,001. 

[4]       The Judge delivered a decision on the applications about 12 May 1999.  Some of Mr Russell’s requests were met, in part, and some were not. 

[5]       Dissatisfied with this outcome Mr Russell sought remedies by way of an application for recall of the judgment and by way of a Case Stated appeal.  Those applications were made on 21 July 1999 and, surprisingly, were not actually heard until 15 May 2001.  We do not know the reason for that delay.  A decision was given by the District Court on 13 June 2001.  It was held that there was no right of appeal in relation to an interlocutory matter.  That is undoubtedly correct.  It was further held that there was no basis for recalling the earlier judgment, that there were no grounds for reopening the discovery application and no basis for stating a case to the High Court.

[6]       On 24 January 2002 that is, six and a half months after the District Court’s decision, Mr Russell filed in the High Court an application for judicial review of what are said to be “certain interlocutory decisions made prior to the trial of the plaintiff”.  The reason for the inordinate delay in bringing such proceedings has not been explained.  That application is somewhat unusual as to form, an observation we think ought to be accompanied by recognition that Mr Russell was not represented by present counsel at that stage of the proceedings. 

[7]       The tenor of the application is that the District Court’s decisions in relation to discovery, although not appealable, were justiciable in judicial review proceedings pursuant to s 27(2) of the New Zealand Bill of Rights Act.  Interim relief was sought in the form of declarations that the District Court ought take no further steps in the prosecutions until final determination of the application and a declaration that charges which the Commissioner had indicated would be withdrawn should be withdrawn.  Substantive relief was sought in the following terms:

C.        Final Relief

A declaration that the second defendant ought not to institute or continue with criminal proceedings in connection with any matter to which this application for review relates, or

D.A declaration that the first defendant do order the second defendant to comply in full with the directions contained in the timetable orders made by the first defendant on 29 January 1998 not less than 3 months before the date of hearing of the typical cases, AND

E.A declaration that the first defendant do order the second defendant to discover to the plaintiff full unexpurgated copies of the records of meetings, Head Office correspondence and memoranda referred to in Applications Nos 3, 4 and 5 made to the first defendant on 19 November 1998 as set out in para 8 hereof whether or not they expressly refer to the identified typical cases, AND

F.A declaration that failing compliance by the second defendant with any such order for full compliance with such original timetable orders and any further orders within 1 month from the date thereof that the first defendant should dismiss the 226 prosecutions with costs as appropriate to the plaintiff.

G.Such further or other relief and/or directions to the first defendant to reconsider and re-determine the whole or any part of any matter to which this application for review relates, with advice of the reasons for so doing.

H.Such further or other relief as may be just.

I.The costs of and incidental to this application for review.

[8]       The Commissioner applied to strike out the application for judicial review on the following grounds:

a)The decisions of Judge Simpson, to which the proceedings relate, did not involve the exercise of a statutory power of decision in terms of s 3 of the Judicature Amendment Act 1972, and are not therefore amenable to judicial review.

b)If the decisions are amenable to judicial review, no remedy should be granted, as there is an alternative remedy by way of appeal, if certain requirements are met;

c)The delay in bringing these proceedings is so great that they should be struck out for that reason alone.

[9]       That application was heard by O’Regan J on 7 May 2002.  O’Regan J dismissed the application.  He held that the case was not so clearly untenable that Mr Russell could not possibly succeed.  Nor was the delay sufficient in the Judge’s view to justify a peremptory striking out.

[10]     The substantive application for judicial review was heard in August 2003 with O’Regan J’s judgment thereon being delivered on 12 November 2003.  He held, in short, that it is inappropriate for the High Court to substitute its views for those of the District Court Judge as to whether the material provided by the Commissioner adequately complied with the orders which had been made by the Judge.  Further, Mr Russell would have a general right of appeal in the event of conviction on any or all of the informations.  As a matter of discretion, O’Regan J declined to grant relief.  He then turned to the question of delay and held that while it would not of itself justify declining a judicial review remedy which was otherwise available, the delay was such to reinforce his conclusion that it was appropriate to decline judicial review.

[11]     So, the position now, is that almost five and a half years after the interlocutory decision to which Mr Russell takes exception, he invites this Court to differ from the learned District Court Judge’s conclusion that there had been appropriate compliance with her direction as to discovery and her conclusion, on an application for recall, that there was no need to revisit her earlier decision.  He also asks this Court to differ from the learned High Court Judge on the exercise of a discretion that was clearly available to him.

[12]     As can be seen from the substantive relief sought by the appellant, described in para [6], the judicial review proceedings widened the defensive front far beyond the bounds of the decisions to which they purported to relate, and sought remedies as if the High Court were not merely supervisory in its function but seized of the summary prosecutions themselves. 

[13]     The short point on this appeal is whether the appellant has demonstrated any proper basis for an appellate court to interfere with the District Court Judge’s assessment that her orders had been complied with and the High Court Judge’s exercise of an available discretion.  The answer is plainly no.  And even if there were, this Court would exercise its own discretion not to grant relief on the grounds of inordinate and inexcusable delay between the decisions or last decision, as the case may be, complained of and the filing of judicial review proceedings.  This Court could not countenance disruption to the District Court’s summary criminal processes by lethargically instituted applications for judicial review.  Still less would it consider doing so in respect of a summary prosecution that, even after nearly eight years, is still unresolved.  For these reasons alone the present appeal does not deserve to succeed and is dismissed with costs to the Commissioner in the sum of $6,000 and disbursements as fixed by the Registrar.

Solicitors:
R J Warburton, Auckland for Appellant
Crown Law Office, Wellington for First and Second Respondents