Tamihere v Commissioner of Inland Revenue

[2018] NZHC 266

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1978

[2018] NZHC 266

BETWEEN

ROBIN NOEMA HUGHES TAMIHERE

Applicant

AND

COMMISSIONER OF INLAND REVENUE

First Respondent

THE DISTRICT COURT
Second Respondent

INLAND REVENUE DEPARTMENT

Third Respondent

Hearing:	On the papers
Counsel:	R N H Tamihere, Applicant in person
Judgment:	28 February 2018

JUDGMENT NO 2 OF PALMER J

This judgment is delivered by me on 28 February 2018 at 10.30 am pursuant to r 11.5 of the High Court Rules.

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

Registrar / Deputy Registrar

Solicitor/Party

Crown Law, Wellington

TAMIHERE v COMMISSIONER OF INLAND REVENUE & ORS [2018] NZHC 266 [28 February 2018]

Applicant in person

Previous judgment

[1]    On 30 November 2017, I delivered judgment in this proceeding, striking out Mr Tamihere’s application for judicial review.1 I stated the causes of action alleged were “plainly unsupportable and entirely spurious” and the proceeding as a whole was “frivolous, vexatious and an abuse of the court process”.2 I awarded costs to the Commissioner of Inland Revenue. The orders were sealed on 22 December 2017.

Application to recall the judgment

Could the application be filed?

[2]    On 9 February 2018, Mr Tamihere sought to file an application to recall the judgment. It identifies four grounds for doing so: I erred in fact and in law; the Crown entered ultra vires evidence; my associate violated s 25(a) of the New Zealand Bill of Rights Act 1990; and the judgment was obtained by fraud. The rest of the application is an incoherent mish-mash of irrelevant quotations from New Zealand, United Kingdom and United States cases and statutes dating to 1368, United Nations documents and Black’s Law Dictionary. It is supported by an affidavit which simply replicates the application.

[3]    The Registry did not initially accept the application for filing because it has been sealed and, under r 11.9 of the High Court Rules 2016, it cannot be recalled. But the documents were referred to me to decide whether it could be accepted or not.

[4]    The Registry was correct r 11.9 provides a judge may recall a judgment “at any time before a formal record of it is drawn up and sealed”. However, the Court of Appeal has recognised there are a limited number of circumstances where a judgment can be recalled even after it has been sealed.3 One of these is where the judgment has been obtained by fraud. Mr Tamihere alleges that, among other things, in his

1      Tamihere v Commissioner of Inland Revenue [2017] NZHC 2949.

2 At [13].

3      Farquhar v Property Restoration Ltd CA186/89, 27 May 1991 at [5]–[6].

application. I therefore advised it was proper for the application to be accepted for filing.

Possibly abusive proceeding

[5]    The Registrar then referred the application  to me for consideration under      r 5.35A of the High Court Rules 2016 (the Rules) as a proceeding that plainly appears to be an abuse of the power of the Court, if that rule can be applied to an interlocutory application. Rule 5.35B allows a judge who agrees with the Registrar to exercise various powers, including the power to strike out the proceeding.

[6]    At first glance, these rules are applicable. However, for reasons that are not clear, the rules are expressed to apply to a “proceeding” which is defined to mean, in r 1.3, “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”. The application for recall is an interlocutory application so, strictly speaking, rr 5.35A and 5.35B do not apply to it.

[7]    However, as the Court of Appeal confirmed in Siemer v Stiassny, the High Court has an inherent power to prevent an abuse of process by striking out an interlocutory application where that is not inconsistent with other rules.4 The circumstances in which abuse of process may arise are varied and there are no fixed categories.5 An attempt to relitigate a claim previously determined by the Court will be an abuse of process.6

Decision

[8]    The only ground of the application which could support recall of the judgment is that it was obtained by fraud. But that allegation was part of Mr Tamihere’s submissions during the hearing that led to the judgment and was determined in it. The submission had no substance then and still does not.7

4      Siemer v Stiassny [2011] NZCA 466 at [6]

5      Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 10.

6      Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586.

7      Tamihere v Commissioner of Inland Revenue, above n 1, at [6].

[9]    The other grounds, which would not support a recall, are similarly meritless. Whether I erred in fact and law is a matter for appeal. Whether the Crown prosecutor entered ultra vires evidence was dealt with in the judgment. And my associate manifestly did not violate any right to a fair trial and the right to natural justice as she made no decision in this matter.

[10]   The application for recall is an abuse of process, consistent with my finding the substantive proceeding was an abuse of process. It is an attempt to re-litigate issues which were decided by the substantive judgment or to litigate issues which can only be dealt with on appeal. I do not consider the respondents need be bothered with the application, but I copy this judgment to their solicitors, for their information.

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Palmer J