Tamihere v Commissioner of Inland Revenue

[2013] NZHC 1651

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002469 [2013] NZHC 1651

BETWEEN

ROBIN NOEMA HUGHES TAMIHERE Appellant

AND

THE COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:	2 July 2013
Appearances:	Appellant in person F Nizam for Respondent
Judgment:	2 July 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 2 July 2013 at pm 4.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

TAMIHERE v COMMISSIONER OF INLAND REVENUE [2013] NZHC 1651 [2 July 2013]

[1]      Mr Tamihere wishes to appeal a decision of Judge Hubble dated 29 August

2012.  The decision relates to a debt arising from tax (GST and PAYE) assessments which  have  been  issued  to  Mr  Tamihere  and  which  he  had  taken  no  steps  to challenge within the statutory timeframes set out in the Tax Administration Act 1994. The total tax debt (at the time of judgment, and including interest and penalties) was approximately $195,000.   Mr Tamihere’s defences to the debt claim essentially involved contesting his status as a taxpayer and the Court’s jurisdiction to hear the matter.

[2]      It  seems  that  Mr  Tamihere  took  steps  to  initiate  an  appeal  within  the applicable 20 working day period, by filing an appeal in the relevant District Court and (a little later) by serving on the solicitors acting for the Commissioner of Inland Revenue.   But he did not file his appeal in the High Court until April 2012.  The upshot is that Mr Tamihere is significantly out of time and requires leave before he is able to file and progress his appeal.  Mr Tamihere has sworn affidavits which say that his delay in filing was the result of his status as a litigant in person.  The lack of legal advice (he says) has had two consequences, namely:

(a)       His misunderstanding of the requirements for bringing an appeal; and

(b)His lack of the necessary confidence to advance an appeal in person in this Court.

[3]      Mr Tamihere also referred to some delays he experienced in obtaining a transcript of the hearing in the District Court, which is merely another facet of the same point.   Had Mr Tamihere been legally represented he would no doubt have been advised that help in obtaining the transcript could have been provided by this Court, provided that a timely appeal had been filed.

[4]      As to the matter referred to in [3](a), Ms Nizam advised from the bar that Meredith Connell wrote to Mr Tamihere in October 2012 (after receiving notice of his intention to appeal) advising him of the additional requirement to file the appeal

in this Court and also that he was already out of time to do so.  Mr Tamihere advised that he did not recall receiving that letter.

[5]     In some cases the Court is, and should be, minded to be generous to unrepresented  litigants  who  have  misunderstood  technical  or  procedural requirements.  To an extent, therefore, I accept that Mr Tamihere has raised matters that are relevant to the exercise of the Court’s discretion to grant an extension of time.    But  in  the  present  case  any  leniency  that  I  might  wish  to  accord  to Mr Tamihere cannot overwhelm the difficulties that are posed by the nature and tenor of the appeal itself.   While I do not for one minute doubt the sincerity of Mr Tamihere’s position it is one that is simply untenable.

[6]      As I think he now recognises, “freeman” arguments that assert that a person such is he is not a citizen or not a taxpayer – whether that contention is said to be derived from the 1835 Declaration of Independence, the Treaty of Waitangi, the Bible or from anything else – have consistently been rejected by the Courts.  And of course, there is also the fact that any PAYE that has been retained by Mr Tamihere is not his money at all; he holds it on trust and on behalf of others, who are certainly taxpayers.

[7]      I acknowledge that Mr Tamihere’s jurisdictional argument appears to be more novel and as such has perhaps not been tested.  As I understand it, the argument manifested itself in Mr Tamihere making what he calls a “Cestsui Que Vie Trust” statement to the Court which was recorded in the transcript (as later corrected by Mr Tamihere) in the following terms:

T:        Are you saying that the trust we are now administering is the Robin

Noema Hughes Tamihere Trust Your Honour?

...

T:        Robin Noema Hughes Tamihere is indeed in the Court today Your honour and that is you –

...

T:        Your  Honour,  it  is  you  who  is  the  trustee  called  Robin  Noema

Hughes Tamihere.

C:       How does that happen?

T:        Clerk – are you the Cestsui Que Vie trustee who has appointed the

Judge as the administrator of this constructive trust, case number CIV 12-

055-00100?

C:        I’m just here as the Judge of the District Court , that’s all I’m here

for Mr Tamihere.

T:       And did you also appoint the prosecutor as the executor of this constructive trust?

C:        I haven’t appointed anybody.

T:        You are, you are the trustee Your Honour and you are the executor and I am the beneficiary and I authorise you to handle the accounting and dissolve this constructive trust.  I now claim my living, live, warm blooded body and I collapse the Cestsui Que Vie Trust which you have charged that has no value.  You are committing fraud on this Court and you have created the controversy.

[8]      With all due respect to Mr Tamihere the thinking which appears to underlie his position in this respect is not thinking that the law recognises.  An appeal that is based on it therefore has no prospects of success.

[9]      Lastly, Mr Tamihere’s criticism of the fact that no witnesses were called by the Commissioner in the District Court also involves a misunderstanding of the nature of the claim against him.  As a matter of law the assessments speak for themselves; their correctness may not be disputed and are sufficient to establish the debt.   No further evidence (other than, presumably, an affidavit producing the assessments) is required.

[10]    Regardless of the merit or substance of Mr Tamihere’s reasons for not complying with the time limits for filing appeals, it is clear to me that his proposed appeal  would  be  doomed  from  the  outset.    In  those  circumstances  it  is  not appropriate to grant him an extension of time for filing and I will not do so.  The application for leave is declined.

[11]     Although Ms Nizam sought the Commissioner’s costs on the application I

can see little point in making such an order.

Rebecca Ellis J