Sisson v Commissioner of Inland Revenue

[2017] NZHC 175

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000637 [2017] NZHC 175

BETWEEN

THERESE ANNE SISSON

Plaintiff

AND

COMMISSIONER OF INLAND REVENUE

Defendant

Hearing:	13-16 February 2017
Appearances:	Plaintiff Appears In Person S Kinsler, P J Shamy and S L Russell for Commissioner of Inland Revenue
Judgment:	16 February 2017

REASONS FOR DECISION OF GENDALL J Dismissing Application to Review Earlier Strike Out Decision

Introduction

[1]      This proceeding was brought by the plaintiff (Ms Sisson) on 27 July 2016 seeking an order to set aside an earlier judgment of this Court which placed the company Chesterfields Preschools Limited (the company) into liquidation.

[2]      On  3  October  2016  Associate  Judge  Osborne  in  this  Court  delivered  a decision striking out that proceeding CIV-2016-409-637.

[3]      Ms Sisson has sought to review that decision of Associate Judge Osborne and I heard that application for review on 13 February 2017.  At that time I declined Ms Sisson’s application for review and indicated that my reasons for that decision

would follow.  I now set out those reasons.

SISSON v COMMISSIONER OF INLAND REVENUE [2017] NZHC 175 [16 February 2017]

Review application

[4]      Ms Sisson’s application for review is brought pursuant to s 26P(1) Judicature

Act 1908 which provides:

26P     Review of, or appeals against, decisions of Associate Judges

(1) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in Chambers may apply to the Court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the Court –

(a) Must review the order or decision in accordance with the

High Court Rules; and

(b) May make such order as may be just.

[5]      As to the approach to review of an Associate Judge’s decision, McGechan on

Procedure at para HR2.3.02 notes:

(1)      Overview

(a)       If   the  Associate   Judge’s   decision   is   a   reasoned   one, following   a   defended   hearing   (ie   full   argument   from opposing parties), the  approach is essentially appellate (r

2.3(4)): Perriam v Wilkes [2014] NZHC 2192 at [4]. “Full argument” does not necessarily mean extensive argument —

the requirement for a defended hearing is met where the hearing has afforded to all parties with a proper interest in the outcome an opportunity to say all that they reasonably

might say: Caringrace Inc v Claridge [2016] NZHC 1704 at

[36].

The starting point  is the Associate Judge’s  decision. The applicant has the burden of persuading the Court that the decision was wrong — that it rested on unsupportable findings of fact and/or applied wrong principles of law: Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd  (2002)  16  PRNZ  107    (HC)  at  [13];  Poros  v  Bax [2015] NZHC   2772;   Ophthalmological   Society   of   New Zealand Inc v Commerce Commission [2003] 2 NZLR 145, (2003) 16 PRNZ 569 (CA). The Court will apply the approach in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ

768 at [16], which involves the Court making its own assessment  as  to  whether the  original  decision  is wrong:

Burmeister v O’Brien [2008] 3 NZLR 842, (2009) 9 NZBLC

102,415 (HC) at [29].

The Judge has the discretion to rehear all or part of the evidence  and  to  hear  further  evidence  (r  2.3(4)).  The threshold for admission of new evidence is lower than on an

appeal: Re McCullagh v Robt Jones Holdings Ltd [2016] NZHC 263 at [40] citing Peterson v Lucas Mill Pty Ltd [2012] NZHC 2398 at [26].

(b)      If the Associate Judge’s decision involves exercising a discretion,  for  example  a  costs  or  a  security  for  costs decision, the appellant must show the Associate Judge acted on a wrong principle or failed to take into account some relevant matter or took into account some irrelevant matter or was plainly wrong: Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [15]; Architecture & Project Management Ltd v Windowmakers Ltd   [2015]   NZHC   2268   at   [28];   Jaques   v   Main [2016] NZHC    1978.    This    approach    to    discretionary decisions survives Austin, Nichols (above): Robinson v Whangarei Heads Enterprises Ltd [2013] NZHC 2247 at [7]. If no reasons are given for a discretionary decision, the Court will need to consider its exercise afresh: Commissioner of Inland Revenue v Boylan [2015] NZHC

2773, (2015) 27 NZTC 22-032 at [30].

(c)       The  High  Court  on  review  is  not  bound  to  defer  to  the decision of the Associate Judge, beyond the customary caution appropriate when seeing the witnesses provides an advantage because credibility is important: M Yovich & Sons Ltd v Peters [2016] NZHC 1572 at [8]. If the High Court Judge thinks the Associate Judge was wrong, the reviewing Judge should say so forthrightly: Teinangaro v Fastway Couriers   (NZ)   Ltd   HC   Napier   CIV-2009-441-751,   25

November 2011 at [23](c), citing Austin, Nichols (above) at

[3] and [16].

My decision

[6]      Clearly Ms Sisson, as applicant here, has the onus to persuade this Court that Associate Judge Osborne’s decision was wrong in the sense that it rested on unsupportable findings of fact and/or applied wrong principles of law.  It is my clear view that she has failed to discharge this onus upon her.

[7]      No reasonable basis was advanced by Ms Sisson before me to show that in any      way      this      proceeding      CIV-2016-409-637      might      succeed. Associate Judge Osborne in his decision gave some consideration to the merits of that proceeding but also concluded, amongst other things, that Ms Sisson lacked any standing to advance the proceeding.

[8]      It is also correct to say that in other proceedings, Ms Sisson, who was joined by  Associate  Judge  Osborne  to  the  original  liquidation  judgment  proceeding precisely for appeal purposes, has brought an appeal to the Court of Appeal against that    judgment    placing   Chesterfields    Preschools    Limited    into    liquidation. Ms Sisson’s original appeal against the liquidation judgment was abandoned but sometime later it was accepted by the Court of Appeal and is due to be heard there at some time in the future.

[9]      This appeal to the Court of Appeal, in my view, is the only appropriate way here for Ms Sisson to set aside the original liquidation judgment.  The hearing and the outcome of that appeal, of course, is awaited.

[10]     As I see the position, a reasonable argument also exists that for Ms Sisson to commence these particular proceedings CIV-2016-409-637, directed at setting aside a conclusive judgment of this Court which is the subject of an outstanding appeal to the Court of Appeal, is itself a collateral attack and could be considered to be an abuse of process.   On this additional ground I dismiss Ms Sisson’s application to review Associate Judge Osborne’s  earlier strike out decision.   There can be no possible conclusion here that the Associate Judge acted on any wrong principle, or failed to take into account some relevant matters, or took into account irrelevant matters, or that his strike out decision was in any respect wrong.

[11]     It is for all these reasons that I dismissed Ms Sisson’s application to review

Associate Judge Osborne’s earlier decision in this proceeding CIV-2016-409-637.

...................................................

Gendall J

Solicitors:

Lane Neave, Christchurch

Phillip Shamy, Christchurch

Meredith Connell, Christchurch

Copy to Ms Sisson