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30 Nov 2017
Appeal Status
Not appealed

Judicial review proceeding alleging bias struck out

2017 case note - judicial review proceeding alleging bias struck out by the High Court.

Tamihere v The Commissioner of Inland Revenue [2017] NZHC 2949


Mr Tamihere, a current bankrupt, filed a statement of claim and an affidavit in support seeking a judicial review of actions taken by Judge Andrée Wiltens ("the Judge") during a civil list hearing in the Manukau District Court on 12 June 2017. The Commissioner of Inland Revenue ("the Commissioner") applied to have the matter struck out on the basis that it disclosed no reasonably arguable cause of action, was frivolous, vexatious and an abuse of the Court's process.


The decision applies the standard principles governing strike-out.


At the list hearing under challenge, Mr Tamihere had asked for the Court to direct the Crown Counsel appearing on behalf of the Commissioner to provide proof that they had standing to appear on behalf of the Commissioner. The Judge dismissed Mr Tamihere's request/application. 

Mr Tamihere alleged in his application for judicial review:

  1. The Judge exceeded his statutory authority and violated the principles of justice when he stated Crown Counsel did not have to produce proof of standing in Court;
  2. The Judge evidenced bias toward the applicant and the proceeding was coram non judice which again amounted to an abuse of process;
  3. The Judge acted ultra vires when he refused to provide Mr Tamihere with a copy of the Commissioner's sworn statement granting the Court subject matter jurisdiction; and
  4. The proceeding was void and the Court lacked jurisdiction to hear it.

Mr Tamihere alleged breaches of ss 25 and 27 of the New Zealand Bill of Rights Act 1990 and sought $15,000 in damages as a result of those alleged breaches.


The Court granted the Commissioner's strike out application and dismissed the proceeding.

The Court held that nothing within the transcript attached to Mr Tamihere's supporting affidavit provided any basis for a finding of bias, actual or apparent, in relation to the Judge's actions. The Court found there was no foundation in law or fact for any allegation that the Judge exceeded his statutory authority, or acted in a manner amounting to bias or violation of natural justice or abuse of process. The Court held that the proceeding as a whole was frivolous, vexatious and an abuse of the court process.

As the Court was already satisfied that the proceeding be struck out on the earlier grounds, the Court held that it did not need to consider the more complex question of whether the District Court can ever be liable in damages for breaches of the Bill of Rights in view of the Supreme Court's decision in Attorney-General v Chapman ([2011] NZSC 110, [2012] 1 NZLR 462).

For the same reason, the Court determined it did not need to come to a conclusion on deciding whether the applicant, as an undischarged bankrupt, had standing to bring this proceeding.

High Court Rules 2016 r 15.1; District Court Rules 2014 r 1.24; Crimes Act 1961 s 219; Insolvency Act 2006 ss 101, 117; Judicial Review Procedure Act 2016 s 8