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30 Mar 2006
Appeal Status
Not appealed

Application for recall

2006 case note - taxpayer sought an order recalling a prior High Court judgment - Recall Jurisdiction, High Court Rules, re-litigate Statement of Claim.

Clarence John Faloon v The Commissioner of Inland Revenue


The Taxpayer sought an order recalling a prior High Court judgment of Asher J. The taxpayer essentially re-litigated his complaints contained in his Statement of Claim from Asher J's prior judgment. Referring to the leading case on recall of Wild CJ in Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632, Asher J found that there was no proper basis in which the taxpayer can recall the


The Taxpayer filed a statement of claim in the High Court which related to a challenge under s 138F of the TAA 1994 to an assessment of gift duty made by the Commissioner. The claim alleged that the Commissioner had erred in his assessment, and sought directions to alter his decision.

The Commissioner sought to strike out the Taxpayer's claim on the basis that the Taxpayer had no reasonable cause of action against the Commissioner. The proceedings were struck out because Asher J found the Taxpayer had no status to bring the proceeding and he was not a party to the easement in respect of which the ruling was sought, and could not have been regarded as a "Disputant". The judgment for this decision was received on 7 November 2005.

The present proceedings involve the Taxpayer seeking an order recalling Asher J's judgment of 7 November 2005. The Taxpayer's application was made in reliance on Rule 542(3) of the High Court Rules. The Taxpayer's application challenged the judgment of 7 November 2005 and raised numerous points which essentially challenge the conclusions reached, and reiterated his prior Statement of Claim.

The Commissioner filed a Notice of Opposition which did not engage upon the substantive issues raised by the Taxpayer but focused on Rule 542(3). In essence, the Commissioner asserted that the recall jurisdiction was not properly invoked.

The Taxpayer criticised the Commissioner's Notice of Opposition asserting that it had not gone through the notice of application and admitted or denied all of the facts set out therein.


Asher J looked at when a decision may be recalled. An application for recall comes under Rule 542(3) of the High Court Rules.

This rule does not set out a guide as to the basis upon which a judgment can be recalled, or indeed what the recall of a judgment empowers a Judge to do. However, the leading case on recall is that of Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632.

Horowhenua County v Nash (No 2) provided for three categories of recall the third of which gives the Court the ability to recall a judgment for any very special reason which justice requires, and thereby avoid an injustice, or what might otherwise be a more cumbersome and expensive process, such as a retrial.

No attempt has been made to further define the third category. In Brake v Boote (1991) 4 PRNZ 86, the third category was used as the basis for recalling a judgment, the judge considered that on a very special occasion where a judge failed to determine an issue which was properly before the Court, the jurisdiction could be used to correct that error.

While the third category is not defined with particularity in the judgments, it is quite clear that the direction to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. There are some things which the power of recall does not extend to. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments that could have been raised at an earlier hearing but were not.

The Taxpayer, in his application, sought to do all these things. None of the matters raised in his notice of application and affidavit in support related to developments since the judgment, or a legislative
provision or authoritative decision of plain relevance which was not referred to. The judgment, being to strike out the statement of claim, was in terms of the order made quite simple and uncomplicated. His Honour held that what the Taxpayer sought in this application was to re-litigate his complaints contained in his statement of claim that was struck out by the High Court on 7 November 2005. No proper basis was put forward by Taxpayer for the recall of the 7 November 2005 judgment.

Asher J also found that the Commissioner's Notice of Opposition complied with Rule 244. Asher J noted that a Notice of Opposition must state the respondent's intention to oppose the application and the grounds of opposition, and contain a reference to any particular provision of an enactment or principle of law or judicial decision on which the respondent relies (Rule 244(3)). It does not have to have the function of a statement of defence, and respond to all the affirmative assertions contained in a Notice of Opposition.

The Taxpayer's application to recall Asher J's decision of 7 November 2005 was therefore dismissed.

Tax Administration Act 1994