Ipsofactoj.com: International Cases [2005] Part 2 Case 5 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Russell

- vs -

Commissioner of Inland Revenue

GAULT P

BLANCHARD J

ANDERSON J

27 AUGUST 2003


Judgment

Gault P

(delivered the judgment of the court)

  1. Mr. Russell, a business and financial consultant with whom the courts are well familiar, considers that officers of the Inland Revenue Department have been conducting a "vendetta" against him. He constructed for a considerable number of company clients arrangements, conveniently known as the Russell template, that have been found to fall within s99 of the Income Tax Act 1976. He has contested that finding in various proceedings as far as the Privy Council. He maintains that in adjusting the arrangements under s99(3) to counteract tax advantages obtained, the Commissioner (by his staff) has been inconsistent, contradictory, in breach of s99(4) and dishonest in frustrating Mr. Russellís attempts to expose that situation.

  2. What he is attempting to do, in the context of a challenge to the assessments of certain of the companies, is to conduct a wide-ranging enquiry before the Taxation Review Authority (TRA) into the processes of the Department. Because the Commissioner is not co-operating as Mr. Russell considers he should, Mr. Russell and his clients complain that they have been, or will be, denied fair hearings.

  3. In a recent judgment in Dandelion Investments Ltd v Commissioner of Inland Revenue [2003] 1 NZLR 600 this Court said (paras 90 and 93):

    As we have said the function of the authority was to hear and determine the objection disallowed by the Commissioner by conducting a fresh hearing into the matters raised in the objection, in which questions of validity as well as the correctness of the assessment could be considered. But the authorityís role remained one which was concerned with the correctness of the assessment. It did not extend to conducting what was effectively a broad-based judicial review of the process leading up to the Commissionerís assessment and disallowance of the objection and subsequent conduct of the proceeding before the authority. What transpired is contrary to the general primacy of the objection procedure over judicial review as the means of challenge which will ascertain the correct tax liability.

    ....

    In accepting that jurisdiction questions could be raised in the statutory process the decisions of this Court in Canterbury Frozen Meat and Golden Bay Cement [Commissioner of Inland Revenue v Canterbury Frozen Meat Co Ltd [1994] 2 NZLR 681, Golden Bay Cement Co Ltd v Commissioner of Inland Revenue [1996] 2 NZLR 665] did not, and were never intended to, invite fishing expeditions into the internal processes of the department seeking administrative law grounds on which to mount objections to substantive assessments.

    Essentially the same points were made by Salmon J at first instance in that case.

  4. The fair hearing said to be denied seems to be a hearing of the very kind this Court deprecated in that case, which was one in which Mr. Russell was involved.

  5. The present appeal and cross-appeal are against the judgment of OíRegan J in the High Court delivered on 20 August 2002. He made an order striking out the fourth cause of action in a claim for judicial review. The other causes of action had earlier been struck out or stayed in a judgment of Fisher J (2000) 19 NZTE 15,924) upheld in this Court: Russell v Taxation Review Authority (2001) NZTC 17,418 and the subject of an unsuccessful petition to the Privy Council. Fisher J did not strike out the fourth cause of action, but he certainly did not give it wings. He said:

    In the fourth cause of action the plaintiffs plead that the Commissioner misconducted himself in various ways in the process of arriving at Russell case assessments and in his conduct at the subsequent TRA appeal hearings. The allegations are so badly pleaded that it is difficult to make much sense of them. No attempt has been made to relate them to specific TRA hearings. The particulars of a least one allegation are said to be provided in a certain affidavit. Not only is that an unsatisfactory way of pleading but the affidavit is not before the Court. As with the rest of the statement of claim, there is a mixture of argument, submission, evidence, failure to distinguish between the different interests and remedies involved, and lack of analysis as to the basis for a legally recognisable judicial review ground. These deficiencies are all the more serious when one bears in mind the requirement that allegations of fraud and related misconduct must be pleaded with precision and particularity: Belmont Finance Corporation Ltd v Williams Furniture Ltd [1997] Ch 250 (CA) at p268, Connell v NZI Securities Asia Ltd (1985) 9 PRNZ 36 at p37.

    After expressing reservations about the relevance of the matters pleaded he said:

    Given the application for leave to file an amended statement of claim it would be premature to strike out this cause of action. However, I would urge the plaintiffs to give careful consideration to the question whether, after proper legal analysis, there are legally recognisable causes of action left under this heading. A stay is appropriate in the meantime.

  6. An amended statement of claim was filed on 8 February 2002. A Second Amended Statement of Claim dated 25 July 2003 was handed up at the commencement of the hearing before OíRegan J. The fourth cause of action as re-pleaded is described in OíRegan Jís judgment which records also counselís acceptance that the focus of the prayer for relief is wrong and that further amendments would be made. No such amendments were made or tendered before or at the hearing in this Court.

  7. In the amended pleading before us the second plaintiff maintains a claim relating to the decision of the TRA in Case R25. Mr. Judd did not press to retain that. To do so at this stage would be an abuse of process. That case had been exhaustively dealt with as summarised in the judgment in the previous appeal from Fisher J.

  8. The allegations are of failure of the Commissioner to comply with obligations he is said to have by virtue of s6 of the Tax Administration Act 1994 and s27 of the New Zealand Bill of Rights Act 1990 to act honestly and fairly in conducting proceedings before the TRA. The alleged failures are particularised at length. There is first the allegation that because the Commissionerís actions and motivations in making the decisions and assessments were or are at issue before the TRA he was required to, but did not, comply with an obligation to identify all officers involved and to call as witnesses those identified by the plaintiffs. Next it is alleged that the Commissioner is required, but has declined, to make discovery "of all documents relating to the Commissionerís activities concerning the Russell template transactions". This is said to extend to some 10,000 documents held in the Crown Law Office. Specific discovery, said to have been applied for in one proceeding before the TRA but refused, is detailed as:

    (a)

    all internal memoranda between officers of the Commissioner relating to the Track A and Track B and Track C and Track D assessment processes.

    (b)

    copies of all reports and memoranda, handwritten or typed, relating to any of the cases, not already disclosed.

    (c)

    copies of minutes of "Russell team" meetings, or of any group of persons dealing with Russell cases by whatever name called.

    (d)

    Copies of all legal opinions not already disclosed relating to any of the objectors or any matter concerning the Russell template.

    (e)

    Copies of all documentation, including internal memoranda, reports etc that deal with the Track C method of assessment, as notified to JGR between 16 and 19 September 1996 (against parent companies).

    (f)

    Copies of all documentation including internal memoranda reports etc that deal with the Track D method of assessment.

  9. Though the obligations said to fall on the Commissioner as a litigant before the TRA and the corresponding "entitlements" of the plaintiffs are particularised in detail, the pleading does not disclose how they bear upon the task of the TRA. In this respect the entitlement of an objector challenging an assessment is to a fair hearing of the objections to the assessment.

  10. In an objection proceeding the assessment is available and the onus is on the objector. The proceeding is to ascertain whether or not the assessment is correct. If it is shown to be wrong the taxpayer is entitled to have it corrected. There is little room for challenge to motivations of officers of the Department. The pleadings do not specify the linkage between the alleged failures by the Commissioner and the right to have such proceeding conducted fairly before the TRA. Mr. Judd QC for the appellants was unable convincingly to articulate that linkage in response to questions from the Bench in the course of argument. By reference to particulars in the pleading, he contended that his clients want to investigate whether the Commissionerís assessments breached s99(4). That provides that upon an adjustment under s99(3) to counteract any tax advantage obtained under the tax avoidance arrangement, income included in the assessable income of one person shall be deemed not to have been derived by any other person. The concern seems to be either that in respect of different arrangements a different approach was taken to reallocation of the income, or that in respect of particular arrangements more than one party has been assessed for the same income. In either case there is to be kept in mind that the parties to the arrangements, and in particular Mr. Russell, must know the details of the arrangements the subject of the assessments. They will know which of the parties have been assessed. It is not clear what more is needed to enable them to challenge the correctness of each assessment. If, in the face of their challenge, the Commissionerís assessments are not shown to be incorrect and they represent a tenable allocation of the income with no double taxing, it is difficult to see why comparisons with other taxpayers should be necessary.

  11. If the issue is of inconsistent treatment of parties in different arrangements we cannot see how that necessarily affects the correctness or otherwise of particular assessments. In Miller v Commissioner of Inland Revenue [1999] 1 NZLR 275, 296 this Court said:

    The appellants refer to the well-known passage in Reckitt & Colman (New Zealand) Ltd v Taxation Board of Review [1996] NZLR 1032 at p1042 where Turner J said that it was of the highest public importance that in the administration of revenue statutes every taxpayer should be treated exactly alike, no concession being made to one to which another is not equally entitled. There is no doubt about that general principle, but in this case the Commissioner, when faced with situations of great complexity created by Mr. Russell, was within his powers in utilising s99 as seemed most appropriate to him in the particular circumstances of each taxpayer. He was also entitled to change his mind. We agree with Baragwanath J as well that "it would not be the intention of Parliament to relieve one taxpayer of liability because error had been made in the assessment of another". Baragwanath J concluded that this ground was not supported by "significant" evidence of unfair discrimination. We see no basis for disturbing that finding.

  12. If the issue is of assessing more than one party to the arrangement with the same income, that surely will be apparent without the need for the kind of investigation proposed. In Miller v Commissioner of Inland Revenue [2001] 3 NZLR 316, 332 the Privy Counsel said (para 33):

    Their Lordships consider than an assessment which wrongly includes income deemed, by virtue of s99(4), to be the income of someone else is not void, any more than an assessment which is wrong on some other ground. It is merely open to objection under s30. It follows that the Commissioner or the authority may remedy the position by amending the inconsistent assessment at any time before the objection proceedings have run their course.

  13. The impression gained is that the complaint of denial of a right to a fair hearing is in respect of matters that it is not the role of the TRA to hear.

    THE JUDGMENT OF THE HIGH COURT

  14. In his judgment OíRegan J, after dealing with a procedural matter which need not detain us, referred to the situations of the various plaintiffs. The second plaintiff whose case before the TRA was R25 has already been mentioned. The third and fourth plaintiffs have had objections determined by the TRA and have appeals to the High Court pending. The fifth plaintiffs have objection proceedings part heard before the TRA.

  15. The Judge summarised the amended fourth cause of action and correctly stated the principles governing strike out applications. He then addressed each of the three arguments advanced to him as supportive of the pleaded cause of action. Each had been advanced as establishing a duty on the Commissioner to act honestly and fairly extending to duties to call or make available the "correct" witnesses and to give discovery of all relevant documents.

  16. With reference to the argument that s27(1) of the Bill of Rights Act, when read with s3 of that Act, gives rise to the alleged duties, the Judge said:

    In my view, the primary focus of s27(1) is on the judicial body which has the power to make a determination, rather than any public official who is a party to proceedings before the judicial body. However, I am mindful that this is a strike out proceeding, and is also a matter in which a novel proposition is being tested. In the circumstances, while I have some real doubts about the proposition that there is any obligation imposed on the executive branch of government or a public official by s27(1), it is appropriate to proceed on the basis that such a finding cannot be said at this stage to be untenable. However, the practical impact of that finding is limited. The rules governing the conduct of proceedings in the TRA deal with the requirements of natural justice in a comprehensive manner. If the Commissioner conducts proceedings before the TRA in compliance with the rules governing hearings in the TRA and with any directions or orders made by the TRA, it will be very difficult to establish any conduct on the part of the Commissioner which could be said to infringe any duty he may have in terms of s27(1).

  17. Proceeding on the assumption that a duty founded on s27(1) might be established, the Judge, with reference to the allegations of breach, determined as follows:

    In conclusion, I accept the argument made by Mr. Beck, that the Commissionerís obligation to act honestly and fairly does not encompass an obligation either to call witnesses or make them available, in circumstances where the Commissioner (and the Commissionerís counsel), do not seek to lead evidence from them for the purposes of the Commissionerís case, nor does it impose on the Commissioner any greater discovery obligation than that imposed by the rules of the TRA or, in High Court proceedings, the High Court Rules.

    Accordingly, even if the plaintiffs were able to substantiate the facts pleaded in para 6 of the statement of claim their cause of action would not be tenable, and it is appropriate to strike it out.

  18. Section 6 of the Tax Administration Act reads:

    Responsibility on Ministers and officials to protect integrity of tax system Ė

    (1)

    Every Minister and every officer of any government agency having responsibilities under this Act or any other Act in relation to the collection of taxes and other functions under the Inland Revenue Acts are at all times to use their best endeavours to protect the integrity of the tax system.

    (2)

    without limiting its meaning, Ďthe integrity of the tax systemí includes Ė

    (a)

    Taxpayer perceptions of that integrity; and

    (b)

    The rights of taxpayers to have their liability determined fairly, impartially, and according to law; and

    (c)

    The rights of taxpayers to have their individual affairs kept confidential and treated with no greater or lesser favour than the tax affairs of other taxpayers; and

    (d)

    The responsibilities of taxpayers to comply with the law; and

    (e)

    The responsibilities of those administering the law to maintain the confidentiality of the affairs of taxpayers; and

    (f)

    The responsibilities of those administering the law to do so fairly, impartially, and according to law.

  19. In response to the argument based on this section OíRegan J said:

    Without wishing to diminish the significance of s6 in any way, I am unable to accept Mr. Juddís submission that it creates rights and obligations akin to those created by the New Zealand Bill of Rights Act. There is nothing in the statutory wording which gives any clue that the legislature had such an intention and indeed, the equivocal nature of the primary obligation suggests a contrary intention. In the context of the present proceedings, I am unable to accept there is any obligation created by s6 involving the calling of, or making available of, witnesses who the taxpayer believes may be relevant to its case in TRA proceedings, or discovery obligations greater than those imposed under the rules of the TRA or the Court in which taxation litigation is being conducted.

  20. The Judge then addressed a third argument, though it does not have any foundation in the pleading. It was that under the common law the Court should hold there is a duty to act fairly in the conduct of proceedings. This was said to be an appropriate extension of the principle imposing such a duty on prosecutors in criminal proceedings to be found in R v Bolton Justices, Ex parte Scally [1991] 1 QB 537. OíRegan J referred to the judgment of Simon Brown LJ in R v Criminal Injuries Compensation Board, Ex parte A [1997] 3 All ER 745 (a case that was decided on a different basis in the House of Lords: [1999] 2 AC 330) in which he expressed the view that the Scally principle should be confined to criminal processes. He concluded:

    I do not accept Mr. Juddís submission. There is no compelling reason to extend the Scally principle to cases outside the criminal and quasi-criminal arena. In CICB, Simon Brown LJ highlighted the differences between the proceedings under consideration in that case and criminal proceedings, particularly the difference between the role of the police witness in CICB from that of a prosecutor in criminal proceedings, the fact that the result of any unfairness would be a failed claim rather than a criminal conviction or quasi-criminal sanction, and that in CICB the applicant has to satisfy the board that he or she is a victim of crime, which contrasts with the onus placed on a prosecutor in the criminal context to prove a case beyond reasonable doubt.

    Nor am I persuaded that the position of the Commissioner as a party to TRA proceedings provides a stronger basis for applying the Scally principle than the situation where unfairness arises through the actions of a witness. The CICB relied on the police to provide necessary information to allow it to make its decision. If anything, that makes the CICB scenario a more compelling one for the extension of the Scally principle than the present case where the Commissioner and the taxpayer are involved in essentially civil proceedings, governed by the normal rules applying to civil litigation in the District Court.

  21. The Judge added that even if he had not ordered the fourth cause of action to be struck out, he would not have allowed the claim for judicial review to proceed. The opportunity for remedy through the appeal process dictated that, as with the other causes of action stayed by Fisher J, this cause of action also would have been stayed pending the outcome of the objection proceedings or appeals.

    THE APPEAL

  22. In support of the appeal Mr. Judd developed essentially the same arguments as had been presented to OíRegan J. He emphasised that his clients want only a fair hearing before the TRA, which the conduct of the Commissioner has denied or is denying them. He referred to the requirement on a strike out application that the alleged facts are to be taken as capable of proof, and said that to prevent the claim would be, in effect, to determine that the Commissioner can act dishonestly and unfairly to deny his clients a fair hearing.

  23. Mr. Judd put at the forefront of his submissions the argument that his clients are entitled to relief against the Commissioner in vindication of their rights under s27(1) of the Bill of Rights Act. On the other hand, Mr. Beck for the Commissioner, by way of cross-appeal, submitted that OíRegan J was wrong in finding as even tenable that s27(1) imposes duties on the Commissioner as a litigant in proceedings before the TRA.

  24. When asked in the course of argument which decision his clients seek to review, Mr. Judd initially said he was not impugning decisions of the TRA. That was somewhat surprising in light of the pleading which refers to decisions refusing to order discovery against the Commissioner and the prayer for relief seeking to set aside substantive decisions of the TRA. Later in his argument Mr. Judd resiled from his initial answer and we will come back to that. But his primary argument was directed to the conduct of the Commissioner as a litigant.

  25. Section 27(1) reads:

    Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that personís rights, obligations, or interests protected or recognised by law.

  26. While acknowledging the obvious point that the Commissioner, as a litigant before the TRA, does not have the power to make a determination, Mr. Judd submitted that the Commissionerís alleged conduct had subverted or was subverting his clientís rights to natural justice before the TRA. Because the Bill of Rights Act applies to the Commissioner by virtue of s3, his clients should be entitled to a remedy under s27. Just what that remedy might be cannot be determined until all details of the alleged acts have been exposed.

  27. This argument cannot withstand analysis. It is correct, of course, that the Commissioner is part of the executive arm of government and performs public functions so that the Bill of Rights Act applies to his office. It is correct also that the appellants have rights under s27 of the Act. Those rights are defined in the section. The heading ĎRight to Justice" by itself cannot found a cause of action as counsel seemed to suggest. The right is to the observance of natural justice by any tribunal or public authority which has the power to make a determination in respect of obligations or interests protected or recognised by law. The TRA is the tribunal with power to make a determination; the Commissioner in the context of TRA proceedings is not. According to the allegations, the Commissioner is engaging in conduct. As litigant before the TRA he has made, or proposes to make no determination amenable to judicial review. We were referred to no authority for the proposition that judicial review is available in respect of conduct said to interfere with the ability of a decision-making authority to conduct its proceedings in accordance with the principles of natural justice. To the contrary we were referred to a number of High Court decisions to the effect that the focus of s27 is the observance of natural justice by decision-making authorities: R v K [1995] 2 NZLR 440, 447, Anderson v Official Assignee [1996] 2 NZLR 167, 173, Simpson v Ministry of Agriculture & Fisheries (1996) 3 HRNZ 342, 354. Rishworth et al in The New Zealand Bill of Rights (Oxford 2003) state with reference to s27(1) (762):

    The right to apply for judicial review arises whenever a tribunal or other public authority makes a determination that affects a personís rights, obligations or interests protected or recognised by law. This language does not broaden the range of determinations otherwise subject to judicial review at common law.

  28. This proceeding is for judicial review in which the claimants seek to challenge not decisions but conduct. It is not, as Mr. Judd acknowledged, a claim for compensation or other relief for breach of a guaranteed right or freedom under Baigentís case: (Simpson v Attorney-General [1994] 3 NZLR 667). The alleged conduct of the Commissioner is not amenable to judicial review and nothing in s27 of the Bill of Rights Act makes it so.

  29. In response to the submission that in civil proceedings against the Crown private litigants are entitled to be on an equal footing but not at an advantage, Mr. Judd submitted that it is not enough for a public authority litigant to comply with the rules of procedure binding on private litigants. That too was an unsupported proposition and is not one we accept. A not dissimilar proposition was rejected in the recent decision of this Court in Wilding v Attorney-General CA260/02, judgment 26 August 2003, para 15.

  30. Accordingly, insofar as the appellants seek to maintain a cause of action for judicial review resting on s27(1) and claiming relief against the Commissioner, we are satisfied it is untenable. On that point we go further than OíRegan J was prepared to go at the strike out stage and allow the cross-appeal.

  31. That means it is unnecessary to deal with the reasons of the Judge for striking out the cause of action even if a claim based on s27(1) of the Bill of Rights Act were tenable. We record, however, that we agree with the view taken by OíRegan J that there can be no obligation based on the rules of natural justice requiring a litigant in a civil proceeding, whether or not a public authority, to identify and make available witnesses considered by the opposing litigant to be the "correct ones". We agree also that there is no breach of natural justice by a litigant opposing successfully an application for an order for discovery of documents.

  32. We are not persuaded that the Commissioner stands in a unique position in objection proceedings so as to be under wider obligations than other civil litigants. The nature and purpose of those proceedings already referred to in this judgment makes that unnecessary. The argument for that unique position is just another attempted justification for the type of investigation we have held to be inappropriate.

  33. While the argument for the appellants was advanced primarily on s27 of the Bill of Right Act, it was submitted that this is strengthened when taken together with s6 of the Tax Administration Act and the principle in Scallyís case.

  34. With reference to s6, we do not accept that the obligation upon the Commissioner to use his best endeavours to protect the integrity of the tax system renders any conduct (not involving a decision) which might be said to be inconsistent with that obligation amenable to judicial review. It was submitted that this statutory provision should be treated as giving "an expedient and inexpensive means to challenge the assessment". We do not agree. The primacy of the objection procedure has been consistently emphasised by this Court and was endorsed by the Privy Council in the Miller decision (para 18).

  35. Mr. Judd emphasised that the claim is about process; the entitlement to a fair hearing. He maintained it has nothing to do with the correctness of the assessments. We do not follow that. To disregard the purpose of objection proceedings before the TRA is to take oneís eyes off the ball.

  36. We agree with OíRegan J that s6 does not create or support the obligations contended for. But in any event, we have not been persuaded that, in focussing on the correctness of particular assessments, the Commissioner could be said not to be using his best endeavours to protect the integrity of the tax system.

  37. It is the statutory primacy of the objection procedure, emphasised in so many recent decisions, with detailed prescribed rules of procedure, that makes the common law principle in Scallyís case inappropriate.

  38. It is to be noted first that in Scallyís case, though the failure to place before the court material information was that of the prosecutor, the application for review was not in respect of the police conduct but in respect of the Magistratesí court conviction. That cannot assist the appellants in the present case to secure relief against the Commissioner.

  39. The reasoning in Scallyís case drew upon the earlier decision in R v Leyland Justices, Ex parte Hawthorn [1979] QB 283 as explained by Lord Bridge in R v Secretary of State for the Home Department, Ex parte Al-Mehdawi [1990] 1 AC 876, 896. Those cases rested on the obligation on a prosecutor in a criminal context to disclose to the defence the existence of witnesses who could give evidence favourable to the defence. That is not a principle applying in civil proceedings. The Court of Appeal in the Criminal Injuries Compensation Board case was not prepared to apply the principle to circumstances in which a material medical report was not placed before the Criminal Injuries Compensation Board because the nature of the proceeding was "strikingly different" from the essentially criminal processes in the authorities relied upon. That applies ŗ fortiori to tax objection procedures.

  40. The House of Lords in R v Criminal Injuries Compensation Board, Ex parte A reversed the decision of the Court of Appeal, but on a ground different from the application of the Scally principle. There the House of Lords, on judicial review, set aside the determination of the Board. No remedy was granted against the police whose obligation it had been to provide the medical report to the Board. There is no support in these judgments for a jurisdiction by way of judicial review to order a party to civil litigation to call or make available witnesses or to disclose documents other than by way of prescribed discovery procedures. To assume such a jurisdiction would be to establish a process of supervision of lower court and tribunal processes which would be both intrusive and disruptive.

  41. We are satisfied that OíRegan J was correct in refusing to extend the Scally principle in the manner sought.

  42. The cause of action cannot stand so far as it seeks remedies against the Commissioner.

  43. Although Mr. Juddís primary concern in the proceeding is to obtain remedies against the Commissioner, the pleading also seeks remedies by way of judicial review against the TRA. Although he acknowledged to OíRegan J that the pleadings needed re-formulation in that respect, that has not been done. Certainly a claim for judicial review of decisions of the Authority would be conventional, although it is not at all clear why the matters of which the appellants complain, if valid, cannot be dealt with by way of appeal from the relevant decisions. As with the other causes of action stayed by Fisher J, such a cause of action would seem to require the same response.

  44. We are conscious of the serious allegations of dishonesty made against the Commissioner. If they are of substance and if determinations have been reached because of material dishonesty, a right to relief should not be foreclosed. But with available appeal rights that is not an issue.

  45. The appellants were clearly notified by Fisher J of the inadequacy of the pleadings. Such amendments as were made were fairly said by OíRegan J to be quite inadequate. No further amendments were tendered in this Court. That is not satisfactory when allegations not easily distinguished from fraud are being made. Bearing in mind the available remedies by way of appeal, we do not consider we should allow further opportunity to recast the pleading of what appears, at best, a speculative cause of action.

  46. The appeal is dismissed.

  47. The second respondent is entitled to costs which we fix at $6,000 together with disbursements approved, if necessary, by the Registrar.


Cases

Dandelion Investments Ltd v Commissioner of Inland Revenue [2003] 1 NZLR 600; Commissioner of Inland Revenue v Canterbury Frozen Meat Co Ltd [1994] 2 NZLR 681; Golden Bay Cement Co Ltd v Commissioner of Inland Revenue [1996] 2 NZLR 665; Russell v Taxation Review Authority (2001) NZTC 17,418; Belmont Finance Corporation Ltd v Williams Furniture Ltd [1997] Ch 250 (CA); Connell v NZI Securities Asia Ltd (1985) 9 PRNZ 36; Miller v Commissioner of Inland Revenue [1999] 1 NZLR 275; Reckitt & Colman (New Zealand) Ltd v Taxation Board of Review [1996] NZLR 1032; Miller v Commissioner of Inland Revenue [2001] 3 NZLR 316; R v Bolton Justices, Ex parte Scally [1991] 1 QB 537; R v Criminal Injuries Compensation Board, Ex parte A [1997] 3 All ER 745; R v K [1995] 2 NZLR 440; Anderson v Official Assignee [1996] 2 NZLR 167; Simpson v Ministry of Agriculture & Fisheries (1996) 3 HRNZ 342; Simpson v Attorney-General [1994] 3 NZLR 667; Wilding v Attorney-General CA260/02, 26 August 2003; R v Leyland Justices, Ex parte Hawthorn [1979] QB 283; R v Secretary of State for the Home Department, Ex parte Al-Mehdawi [1990] 1 AC 876

Legislations

Tax Administration Act 1994: s.6

New Zealand Bill of Rights Act 1990: s.3, s.27

Income Tax Act 1976: s.99

Authors and other references

Rishworth et al, The New Zealand Bill of Rights (Oxford 2003)

Representations

R J Warburton, Auckland, for Appellants

Crown Law Office, Wellington


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