Tamihere v Attorney-General
[2017] NZHC 2697
•3 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-2574 [2017] NZHC 2697
BETWEEN ROBIN NOEMA HUGHES TAMIHERE
Intending Plaintiff
AND
ATTORNEY-GENERAL OF NEW ZEALAND
Proposed Defendant
Hearing: On the papers Judgment:
3 November 2017
JUDGMENT OF KATZ J
This judgment was delivered by me on 3 November 2017 at 12:30pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Copy to: Plaintiff
TAMIHERE v ATTORNEY-GENERAL OF NEW ZEALAND [2017] NZHC 2697 [3 November 2017]
Introduction1
[1] Robin Tamihere seeks to bring proceedings against the Attorney-General in relation to GST payments made by him (or companies associated with him) between March 1995 and March 2011. His view is that he should not have been required to make those payments. He alleges fraud on the part of the Commissioner of Inland Revenue.
[2] Mr Tamihere has brought (or attempted to bring) various proceedings relating to his GST issues. Most recently, he attempted to file a statement of claim dated
24 August 2017 and associated documents. Those documents were rejected for filing by van Bohemen J on 11 September 2017. The Judge’s reasons for doing so were that:
(a) the proposed proceedings did not identify any reasonably arguable cause of action, nor any reasonably arguable basis for the relief sought;
(b) the proposed proceedings were defective in form; and
(c) the documents were nonsensical.
[3] The Judge issued the following direction in his Minute:
[8] The documents are to be returned to Mr Tamihere. Any similar documents presented by Mr Tamihere are not to be accepted for filing without leave of a Judge of the High Court.
[4] Mr Tamihere attempted to file a new statement of claim and associated documents on 9 October 2017, also in relation to his GST issues. The documents appear to be similar to those that were before van Bohemen J.
[5] On 11 October 2017 the Registrar wrote to Mr Tamihere as follows:
I acknowledge receipt of your documents you filed on 9 October 2017. However, as per paragraph [8] of van Bohemen J’s minute of 11 September
1 Subsequent to delivery of this judgment the judgment date has been corrected to 3 November
2017, the date of actual delivery.
2017, we are not to accept “(A)ny similar documents presented by” you “without leave of a Judge of the High Court”. Hence, please file an application for leave using Form G 3 1 with a covering page using Form G1 . This application is also supported by an affidavit.
There is a fee of $500 but you can apply for a fee waiver. The fee waiver form is attached.
[6] Mr Tamihere now seeks a review of the Registrar’s decision to reject his new set of documents for filing and to require him to file a formal application. He relies (incorrectly) on r 3.15 of the High Court Rules 2016 (“Rules”). The correct rule is r 2.11 and I treat Mr Tamihere’s application as though it were made in reliance on that rule, which states:
2.11 Review of Registrar’s decision
(1) An affected party to a proceeding or an intended proceeding may apply to a Judge by interlocutory application for a review of any of the following:
…
(b) a Registrar’s refusal to file a document tendered for filing: (2) The Judge may, on review, make any orders he or she thinks just.
…
(4) Notice of an application for review must be filed,–
…
(b) if it is made by a party who was not present or represented, within 5 working days after the receipt by the party of notice of the decision or refusal.
…
[7] Mr Tamihere’s application for review is out of time. In addition, his application has been made by way of statement of claim, rather than by interlocutory application as required. However, in the interests of addressing Mr Tamihere’s underlying concerns, I put those irregularities to one side.
Was the Registrar wrong to refuse to accept Mr Tamihere’s documents without an accompanying application for leave?
[8] The default position prescribed by the Rules is that a document that fails to comply with the rules as to form – rr 5.3 to 5.16 – can be accepted for filing only with leave of a Judge or the Registrar. Normally, where a Registrar has concerns relating to the form of documents presented for filing, he or she will consult with a Judge as to whether the documents ought to be accepted. No formal application is required.
[9] The Registrar, however, has interpreted van Bohemen J’s direction (as set out at [3] above) as requiring Mr Tamihere to file a formal application with the Court seeking leave to file any further documents that are similar to those he presented in September. The Rules do not prescribe the filing of such an application, and I do not interpret his Honour’s Minute as imposing that additional requirement on Mr Tamihere. Rather, the Judge was simply flagging for the Registrar’s attention that Mr Tamihere had sought to file non-compliant documents. Accordingly, any future documents that appear to be similar to the rejected documents should be referred to a Judge, so that they can also be reviewed for non-compliance. If the documents are (again) non-compliant, the Judge will need to consider whether to grant leave to accept them for filing.
[10] I therefore conclude that the Registrar did err in informing Mr Tamihere that he needed to file a formal application for leave. The correct approach was simply to refer the documents to a Judge for review if they appeared to be similar to
Mr Tamihere’s previous (rejected) documents.
[11] Given that the documents that Mr Tamihere wishes to file are before me, I now address whether they should be accepted for filing.
Should Mr Tamihere’s documents be accepted for filing?
[12] Rule 5.2 provides that a document that does not comply with rr 5.3 to 5.16 may be received for filing only by leave of a Judge or the Registrar. Rules 5.3 to 5.16 concern formal requirements only such as the paper used, the margins applied, the
presence of a signature, the numbering of pages, and so on. In this regard, the documents comply.
[13] Mr Tamihere’s statement of claim does not, however, comply with the requirements of r 5.26, which state:
5.26 Statement of claim to show nature of claim
The statement of claim—
(a) must show the general nature of the plaintiff’s claim to the relief sought; and
(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action; and
(c) must state specifically the basis of any claim for interest and the rate at which interest is claimed; and
(d) in a proceeding against the Crown that is instituted against the Attorney-General, must give particulars of the government department or officer or employee of the Crown concerned.
[14] Rule 5.27 is also relevant. It provides that:
5.27 Statement of claim to specify relief sought
(1) The statement of claim must conclude by specifying the relief or remedy sought.
(2) If the statement of claim includes 2 or more causes of action, it must specify separately the relief or remedy sought on each cause of action immediately after the pleading of that cause of action.
[15] Mr Tamihere’s documents are confusing and inscrutable. The intituling of the statement of claim refers to the proceedings being brought under:
Section 116 Crimes Act 1961 Conspiring to defeat justice Section 25 and 259 Altering and using a document to deceive Section 10.18 High Court Rules 2016 Court Order/Judgment Section 219 1(a) and 1(b) Crimes Act 1961 Theft or Stealing Aiding and abetting Crimes Act 1961
Section 240 Crimes Act 1961 Crimes involving deceit
Section 241 Crimes Act 1961 Punishment obtaining by deceit
Section 27(1) and (3) New Zealand Bill of Rights 1990
Civil and Criminal Justice Statute 1354Section 8.32 rule 4 High Court Amendment Rules (No 2) 2011
Section 8.33 rule 4 High Court Amendment Rules (No 2) 2011
Woolwich v. Inland Revenue Commissioner (1993) AC 70 (HL) Kleinwort Benson Ltd v. Lincoln City Council [1999] AC 349 (HL)
Deutsche Morgan Grenfell plc v. Inland Revenue Commissioner [2007] 1 AC
558 (HL) Tikanga
[16] Despite the reference on the intituling to a number of alleged crimes, the proceedings themselves are presented as civil proceedings. The statement of claim lists the following “causes of action”:
1) All GST Demands served on the Applicant and his companies from March
1995 to March 2011 were ul t ra vires demands as referred to in Woolwich
and in Kleinwort Benson Ltd, and in Deutsche Morgan Grenfell and in Waikato Regional Airport and in Stiassny v. Commissioner of Inland Revenue. And must be repaid immediately as of Right!!! As is stated in Woolwich.
2) IRD and the Commissioner committed extortion and fraud from March
1995 to March 2011.
3) IRD and the Commissioner fleeced my Companies of Liquid capital in some years between $100,000.00 to $250,000.00 and in doing so caused severe cash flow problems and the demise of Rags 2 Go Ltd.
4) IRD and the Commissioner has acquiesced with the Applicant’s Affidavit that was served on them 18th October 2016. Attached to that Affidavit is the Applicant’s “AMENDED GST TAX RETURN” refund for
$4,040,750.00, that the IRD and the Commissioner has agreed with the
Applicant.
5) IRD and the Commissioner have failed to repay monies immediately as of Right as stated to in Woolwich and in Kleinwort Benson, and in Deutsche Morgan Greenfell and in Waikato Regional Airport and in Stiassny v. Commissioner of Inland Revenue.
6) An Immoral and illegal contract exists between the parties. (Footnotes omitted)
[17] Mr Tamihere also purports to plead an “affirmative defence” (which has no place in a statement of claim) consisting of 32 separate elements, many of which are unintelligible. He also specifies six heads of relief, none of which are linked in any appreciable way to the pleaded causes of action. For example, he seeks, in a general sense, compensatory damages for fraud and for the infliction of emotional distress, as well as punitive and actual damages for breaches of the New Zealand Bill of Rights Act 1990.
[18] It is well-settled that the Court, in its inherent jurisdiction, may reject documents for filing where they fail to comply with the pleadings requirements of the Rules, as set out in rr 5.26 and 5.27.2 It is in the interests of justice that the Court control its own processes by not accepting for filing proceedings that are incomprehensible and fall significantly short of the pleadings requirements set out in the Rules. It is unfair to defendants to be called upon to meet grossly defective claims, as well as being inefficient and wasteful of the Court’s limited resources. The appropriate course in such circumstances will usually be for the documents to be rejected. The plaintiff, if he or she wishes to proceed, would then need to re-plead their claim in a manner that complies with the Rules.
[19] In this case, however, re-pleading is unlikely to assist Mr Tamihere. Any further proceedings, even if otherwise compliant, would be at risk of being struck out before service pursuant to r 5.35B, as an abuse of process. That is because
Mr Tamihere appears to be attempting to relitigate issues that have previously been finally determined. In particular, Mr Tamihere’s GST and PAYE issues have previously been the subject of proceedings before Judge G V Hubble in the District Court. Judgment in those proceedings was delivered on 29 August 2012. An application for leave to appeal Judge Hubble’s decision, out of time, was declined by Ellis J in 2013.3 Any collateral attack on the finality of the decisions of Judge Hubble and Ellis J will be an abuse of the process of the Court. It is not open to Mr Tamihere to seek to relitigate GST issues that have already been finally determined.
Result
[20] I find that the Registrar erred in directing Mr Tamihere to file a formal application seeking leave to file his documents of 9 October 2017. The appropriate course, in light of van Bohemen J’s Minute, was to refer the relevant documents to a
Judge for review.
2 See for example Ward v ANZ National Bank Ltd [2012] NZHC 2347 at [13].
3 Tamihere v Commissioner of Inland Revenue [2013] NZHC 1651.
[21] I have undertaken the required review of the documents. For the reasons outlined above, I direct that the documents be rejected for filing and returned to
Mr Tamihere.
Katz J
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