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16 Jun 2011
Appeal Status

Application for recall of TRA decision

2011 case note - confirms the limited grounds on which a decision may be recalled and that it is not appropriate to recall a decision that is also under appeal.

TRA 42/03, 105/04, 23/05, 54/05 and 38/07 [2011] NZTRA 6

Tax Administration Act 1994, Income Tax Act 1994


The disputant was not successful in the recall application. Due to an appeal having being lodged by the disputant, the Taxation Review Authority "TRA" is functus officio. Further, the decision relied upon by the disputant to justify the recall application was irrelevant.

Impact of decision

This decision confirms the limited grounds upon which a decision may be recalled and that it is not appropriate to recall a decision that is also under appeal.


On 25 February 2011 the disputant applied to the TRA to recall Judge Barber's decision dated 1 February 2011 reported as [2011] TRA 2 "the Decision" and, on the same date, appealed the Decision to the High Court. The Decision struck out the disputant's challenges against assessments of income tax for the 1997 to 2005 income tax years. The proceedings related to the Trinity scheme.

The disputant applied to recall the Decision based on the following:

  1. The case of Telstra New Zealand Holdings Ltd v CIR (2011) 25 NZTC 25,068 (HC) ("Telstra"); a purported new judicial decision of relevance, had not been drawn to Judge Barber's attention.
  2. There was an alleged abuse of process and the TRA was bound by previous Trinity decisions to accept his right to recall. The disputant submitted that his right to recall was directly covered by the High Court and Court of Appeal in the substantive Trinity proceedings (who purportedly refused to accept the Commissioner's submissions that they had no jurisdiction to hear a recall application filed nine months after the substantive challenge appeal was lodged).
  3. His Honour did not have jurisdiction to strike out challenges on the merits.

The Commissioner's position in respect of this application was that:

  1. the disputant's decision to appeal had taken the matter out of the TRA's hands as it was functus officio and was unable to take further action in respect of this matter
  2. the recall application was, in any event, unfounded and was a further demonstration of the disputant's refusal to accept any adverse judgment, and of his apparent determination to take any opportunity to indefinitely continue litigating Trinity issues.


Judge Barber dismissed the disputant's application with reference to the disputant's appeal. Specifically His Honour found that:

  • As Venning J recognised in Russell v Klinac [HC Whangarei AP 18/01, 11 December 2001] at [27], it cannot be appropriate for a trial court to revisit an apparently final decision after that decision has been submitted to the "processes of superior courts". That would give rise to the "plainly ... unacceptable" prospect of "the same matter being litigated twice in two Courts at the same time", refer Redcliffe Forestry Ltd v Commissioner of Inland Revenue [2011] 1 NZLR 336 (HC) at [12] ("Redcliffe") [8].
    In this case, the "same matter" is the sustainability of the disputant's challenges in light of the previous Trinity judgments. I have found that the challenges are unsustainable. The disputant must overcome that on appeal. It is "plainly unacceptable", in the words of the current President of the Court of Appeal, for that finding to be revisited before this Authority while the appeal is pending [9].
    Strictly, that view disposes of the disputant's application to recall which I therefore dismiss [10] ...

His Honour addressed some of the other matters raised in the application. Judge Barber rejected the disputant's "right to recall" argument finding that:

  • The disputant acknowledges, the very late recall application in the Trinity challenge proceeding was only possible because the appellants failed to comply with their obligation to seal the High Court judgment promptly after lodging an appeal. The Commissioner (rightly) objected to this conduct but, nevertheless, decided to oppose the application on its merits. The application was heard and dismissed by Venning J on that basis in Accent Management Ltd v Commissioner of Inland Revenue (2006) 22 NZTC 19,758 (HC) at [48], [52]-[53] and [88]. The Court of Appeal expressed doubt about its own jurisdiction to hear an appeal from a refusal to recall, but was not asked to, and did not, express any view on the jurisdiction of the High Court [12].

Judge Barber reiterated that the grounds for recall are "strictly limited" and are "to be exercised only in the most limited of circumstances" referring to the recent decisions of Erwood v Maxted [2010] NZCA 93 and Case Z26 (2010) 24 NZTC 14,380 respectively. For recall to be available on the basis of a new judicial decision, that new decision must either directly or indirectly overrule the decision subject to the recall application by making it "clear" that the decision was "wrong"; Child Poverty Action Group Inc (CPAG) v Attorney-General HC Wellington CIV-2009-404-273, (at [13] to [15]).

Amongst other findings, it was held that Telstra (which concerned an application by the Commissioner to have a notice of discontinuance set aside on the basis that there was an abuse of process):

  1. was not a Trinity scheme judgment; was not about striking out challenge proceedings; was, so far as relevant, consistent with the authorities cited in the Decision and did not, even according to the disputant, compel a different (or any particular) decision on the merits of the case
  2. did not indicate that the Decision was wrong or bring this case within the limited circumstances where recall was warranted
  3. was no basis for criticising the decision-making process in the Decision, nor any basis for criticising the outcome of that process.

Judge Barber held that the disputant's complaints about the merits of the Decision went to the correctness of that decision and should be pursued by way of appeal.