Issued
2010
Decision
11 Jun 2010
Appeal Status
Not appealed

Taxpayer fails in attempt to re-litigate claim

2010 case note - reaffirms that an application for a review of a judgment of an Associate Judge by a High Court Judge will need to be based on sound merits.

Case
Clarence John Faloon and Ors v CIR
Legal terms
Strike out, previously unsuccessful litigation

Summary

The taxpayer had a claim in the High Court struck out due to having previously failed in the Court on the same issue. An attempt to have the strike-out reviewed failed.

Impact of decision

The decision is a reminder of the need to follow court rules and guidelines. It reaffirms that an application for a review of a judgment of an Associate Judge by a High Court Judge will need to be based on sound merits. Absent these merits, the Court will not lightly allow matters to be revisited under the guise of procedural mechanisms.

Facts

Mr Faloon's father was the director of two companies, Trade Lines Limited and Central Equipment Company Limited, which are in liquidation.

Mr Faloon claimed that there is compensation owing on assets which were once owned by the companies. The compensation relates to a pipe diversion of a stream by the Palmerston North City Council and the taking of land by the Crown for airport extensions. He also claimed that he should be compensated for loss of patent rights which were owned by one of the companies.

On 29 April 2010, at the High Court in Rotorua, Associate Judge Christiansen found against Mr Faloon and struck out his claim against the Commissioner. The claim related to attempts of Mr Faloon to have the Commissioner assess income to a trust he had established. The income was allegedly from compensation he claimed was due to the trust but it related to the land owned by the companies. Compensation had already been received by the companies which have since been liquidated.

The claim was struck out because Mr Faloon had previously been unsuccessful when litigating the same issue against the Commissioner.

Mr Faloon applied on 3 May 2010 for an "Interlocutory application for orders to set aside the judgment delivered on 29 April 2010 which does not comply with the High Court Rules". On 6 May 2010, he made an "Amended Interlocutory Application by three Plaintiffs under rule 2.3 to review all the orders or decisions made by His Honour Associate Judge Christiansen".

Mr Faloon did not comply with Rule 2.3(2) of the High Court Rules which specified that an application for review of the decision of an Associate Judge must be filed and served within five working days of the decision being given.

Decision

Justice Woodhouse firstly considered the 3 May application. He concluded that the matter was at an end principally because the issue had been dealt with by Associate Judge Christiansen. In addition he was satisfied that the application did not raise any issue distinct from an issue that might be raised on an application for review of, or appeal against, Associate Judge Christiansen's decision (paragraphs [5] and [6]).

It was noted that service did not take place until 28 May 2010. Justice Woodhouse said an extension of time may be granted if "the delay was not extensive, there was an adequate explanation for the delay, there is no material prejudice to the other party and there is merit in the application".

Justice Woodhouse then found that "there was no adequate explanation for the delay". He also noted that there was "no merit in the application". Furthermore, he saw the decision of Associate Judge Christiansen as a "careful judgment providing compelling reason for the judgment to be struck out" (paragraph [11]).

Justice Woodhouse considered that Mr Faloon was attempting to re-litigate matters which have been before the High Court and Court of Appeal in different forms over a number of years and accordingly His Honour did not allow an extension of time.

The matter is no longer a live issue before the court, costs of $750 were awarded to the Commissioner.

High Court Rules