Leave to address consequential matters in a decision is not a substitute for an appeal

Summary

The scope of leave reserved to address matters arising as a consequence of a judgment is not a substitute for an appeal from that judgment.

Impact of decision

While a short ruling, the decision is authority for the proposition that the general leave reserved provision is not a substitute for actual appeal, or ancillary to appeal, or an opportunity to litigate substantive issues again or in addition to the substantive case. It is firmly confined to "consequential matters".

Facts

At the conclusion of the substantive hearing (reported as Case Z19 (2009) 24 NZTC 14,219) the Taxation Review Authority ("TRA") reserved leave to apply to the TRA on consequential matters from the substantive decision (for a specific time period).

The Disputant, purporting to rely upon the leave, raised three issues with the TRA all of which were subject to appeal to the High Court. Those issues were:

1. the application of the BASF principle to the decision as a consequence of the earlier Case W8 (2003) 21 NZTC 11,063. The substantive decision concluded the BASF principle didn't apply due to the invalidity of Case W8;
2. the lack of an alternative tax avoidance reconstruction put forward by the Disputant. The substantive decision did address the reconstruction and concluded the Disputant had not shown the Commissioner's reconstruction was wrong (at par 276-278 of Case Z19); and
3. the application of section 99(4) was at variance with other higher authority and/or dicta.

The Commissioner pointed out that all these issues were subject to appeal by the disputant.

Decision

Judge Barber concluded that none of the issues raised by the Disputant fell within the leave granted.

His Honour concluded that where the issue is also the subject of an appeal then it is simply not something to be dealt with under the leave granted (paragraphs [7], [9] and [11]).

In general the Judge concluded that it is not appropriate to endeavour to raise further substantive argument, under the leave reserved provision.