No right of appeal from Taxation Review Authority's interlocutory decisions
2009 case note – There is no right of appeal on interlocutory matters from the TRA and an application for recall is in the nature of an interlocutory application.
Taxation Review Authorities Act 1994
The determination of the Taxation Review Authority ("TRA") can be appealed to the High Court under section 26A of the Taxation Review Authorities Act 1994. However, there is no right of appeal from interlocutory decisions of the TRA.
Impact of decision
The judgment confirms that there is no right of appeal on interlocutory matters from the TRA and that an application for recall is in the nature of an interlocutory application.
The Taxpayers sought to appeal the TRA decision delivered on 5 August 2009 (Decision No 13/2009, TRA No. 024/07) refusing to recall an earlier judgment that the Authority delivered on 14 May 2009 (Decision No 11/2009, TRA No 024/07).
The Commissioner argued that no right of appeal exists under section 26A of the Taxation Review Authorities Act 2004 from the decision to decline the recall application on the ground that a recall application is in the nature of an interlocutory application rather than a final determination. The Commissioner relied on the Court of Appeal decision M & J Wetherill Company Ltd v Taxation Review Authority (2004) 21 NZTC 18,924. In Wetherill, the Court of Appeal held that no right of appeal existed from interlocutory decisions of the TRA.
The Taxpayer submitted that Wetherill could be restricted to the consideration of interlocutory applications in the course of the substantive proceedings.
Venning J dismissed the appeal. His Honour held that the issue was determined by the wording of the relevant statutory provision (section 26A). There is no right of appeal against the decision of the TRA to decline the application for recall as it was not a determination of a challenge.