Issued
2017
Decision
06 Dec 2017
Court
NZHC
Appeal Status
Not appealed

Attempt to relitigate matters previously determined struck out as an abuse of process

2017 case note – unsuccessful attempt to relitigate matters previously determined - strike out, abuse of process, standing, bankruptcy.

Case
Tamihere v The Commissioner of Inland Revenue [2017] NZHC 3012
Legal terms
Strike out, abuse of process, standing, bankruptcy, strike-out

Summary

Mr Tamihere filed judicial review proceedings which appeared to seek to revisit a 2012 District Court decision ("the Civil decision") granting the Commissioner of Inland Revenue ("the Commissioner") judgment against Mr Tamihere for unpaid tax debt as well as decisions resulting in criminal convictions and sentence. The Commissioner applied to strike out the proceeding.

Impact

The Decision applies the standard principles governing strike-out applications.

Facts

Mr Tamihere was the sole director of Rags 2 Go Limited ("Rags 2 Go"). Mr Tamihere had also operated as a sole trader in the same field within which Rags 2 Go operated.

Rags 2 Go was placed into liquidation in June 2011 on the basis, primarily, of unpaid PAYE. Rags 2 Go was removed from the register in June 2014.

While operating as a sole trader, Mr Tamihere, either himself or through a tax agent filed self-assessed GST returns and PAYE deductions were assessed as owing based on Employer Monthly Schedules provided by Mr Tamihere and/or his tax agent.

The statutory disputes procedures under Part 4A and 8A of the Tax Administration Act 1994 ("TAA") were not engaged in to dispute or challenge the assessments. In August 2012 the Commissioner obtained judgment against Mr Tamihere for $199,737.12, being the total unpaid tax debt as at that date.

Mr Tamihere filed an application for leave to appeal out of time which was dismissed in 2013. In August 2013 Mr Tamihere was adjudicated bankrupt on the Commissioner's application. An application seeking a stay of the bankruptcy order was dismissed as was a further document treated as an application for recall of the bankruptcy decision. An application to annul the bankruptcy in June 2014 was also struck out.

In January 2014 Mr Tamihere was convicted of charges relating to PAYE and sentenced to home detention in October 2014. Mr Tamihere appeared not to have sought to exercise any right of appeal against his convictions or sentence.

In April 2017 Mr Tamihere filed judicial review proceedings against the Commissioner, Attorney-General and District Court. The claim made wide-ranging allegations of corruption and breaches of human rights but failed to specify the particulars or factual basis for the claims.

Decision

The Court granted the Commissioner's application to strike out the statement of claim and dismiss the proceeding on the basis there was no reasonably arguable cause of action and it was also an abuse of process.

The Court took the view the application was primarily directed at the Civil decision however Mr Tamihere was also challenging the decisions resulting in his criminal convictions and bankruptcy.

The Court held there were no grounds upon which Mr Tamihere might challenge his convictions or sentence, finding the complaint of double jeopardy relating to the criminal convictions was based on a misunderstanding of the matters considered by the District Court in the Civil decision. The Court noted that while that proceeding resulted in a determination that Mr Tamihere was required to repay a debt to the Commissioner, it so happened his actions in relation to that debt were also a criminal offence.

The Court noted Mr Tamihere';s challenge to the Civil decision amounted to a challenge to the tax payable which was only able to be challenged through the statutory disputes process, and Mr Tamihere had raised no factual basis to suggest it could not practically be invoked.

The Court found none of the alleged procedural and jurisdictional errors raised in respect to the civil proceedings had any factual foundation or basis. Rather the Court found they were based on misunderstandings of the legal process and earlier proceedings.

The Court noted most if not all of the claims had already been addressed and dismissed in decisions of other judges, as summarised by the Court in its decision. The Court considered the present claim to be a further attempt to relitigate matters already determined and was an abuse of process.

The Court also found there was no foundation to any of the allegations made against other respondents (including various Ministers and public servants) named by Mr Tamihere and no proof of service of the proceedings in relation to those respondents. The Court found there was no reasonably arguable cause of action maintainable against any of those other respondents, the proceeding against them was an abuse of process and it was appropriate to strike it out.

Judicature Amendment Act 1972; Tax Administration Act 1994, s109