Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search


Commissioner of Inland Revenue v Redcliffe Forestry Venture

[Scoop copy of judgment: SC_8_2012__CIR_v_Redcliffe__Ors.pdf]

Supreme Court of New Zealand

9 November 2012



(SC 8/2012) [2012] NZSC 94


This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

On 15 September 2009, Redcliffe Forestry Venture Ltd and others applied to the High Court to set aside a High Court judgment, which had concluded that the Trinity scheme that they were involved in was a tax avoidance arrangement. The judgment had eventually been upheld on appeal by the Supreme Court. Redcliffe alleged that the Commissioner had knowingly and wrongly applied a depreciation allowance to expenditure incurred by the Trinity investors under certain provisions of the Income Tax Act 2004, when others should have been used. Redcliffe asserted that this was fraud, which is an exception to the principle that court judgments are final and conclusive as to what they decide, so that the Commissioner was not able to rely on the Supreme Court’s judgment. The Commissioner responded to the 2009 proceeding by filing an objection to the jurisdiction of the High Court under r 5.49 of the High Court Rules and applying for orders to dismiss Redcliffe’s proceeding on the ground that the High Court’s decision is final and cannot be reopened.

The High Court dismissed Redcliffe’s proceeding. The Judge held that only fraud in the strict legal sense came within the fraud exception to the principle of finality. The allegations of fraud in Redcliffe’s statement of claim were not of this kind. The High Court was also not able to declare its earlier judgment a nullity.

Redcliffe successfully appealed to the Court of Appeal. The focus in that Court was on a procedural issue of whether the Commissioner was entitled to object to the High Court’s jurisdiction under r 5.49. The Court of Appeal accepted Redcliffe’s argument that jurisdiction under r 5.49 did not apply. The Commissioner should have brought its objection by applying under a different rule to strike out the proceeding. Redcliffe’s appeal was allowed. The Commissioner appealed to the Supreme Court against this judgment.

The Supreme Court has held that the fraud alleged by Redcliffe was in fact a claim of legal error which does not come within the fraud exception. The High Court has no power to recall or set aside judgments on questions of law which have been the subject of appellate decision. For the same reason, the High Court also had no jurisdiction to declare its earlier judgment was a nullity. The Commissioner had properly objected to the proceeding under r 5.49 and the Commissioner’s objection to the High Court’s jurisdiction under r 5.49 was soundly based and should have been upheld. Accordingly, the High Court’s judgment striking out the 2009 proceeding was reinstated.

To protect against abuse of process, fraud claims challenging the conclusiveness of judgments of the High Court in future should undergo pre-trial scrutiny. When a party wishes to reopen a case, on the ground that it was procured by fraud, the claim must be fully and precisely pleaded and particularised, and of sufficient apparent cogency that it should go to trial. If a defendant applies to dismiss the proceeding on the ground that the threshold for fraud is not met, the plaintiff must respond promptly and submit probative affidavit evidence which verifies the critical pleaded facts relied on in the proceeding. Unless these requirements are met, the proceeding seeking to reopen the case should be dismissed.


[Scoop copy of judgment: SC_8_2012__CIR_v_Redcliffe__Ors.pdf]

© Scoop Media

Parliament Headlines | Politics Headlines | Regional Headlines


Minister of Finance: Plan Shows $100 Billion Infrastructure Projects

Finance Minister Bill English has today launched the Government’s Ten Year Capital Intentions Plan (CIP) which shows a pipeline of $100.9 billion worth of infrastructure projects over the next decade. More>>


Werewolf: Safe Landings Gordon Campbell on the safety challenge to the Wellington runway extension.

The safety-related legal challenge revolves around the size of the 90 metre long Runway End Safety Area (RESA) being proposed for the runway extension. More>>


Environment Commissioner: We Need To Work Together On Climate Change And Farming

“The debate around agricultural emissions and the ETS has been polarised for too long,” said the Commissioner. “But the ETS is not the only way forward – there are other things that can be done.” More>>


NZ Super Fund: Seeking To Put A Market Price On Climate Change

Oct. 19 (BusinessDesk) - The New Zealand Superannuation Fund says it will devise a set of rules to assess investment winners and losers under climate change, a strategy that could rule out fossil fuels or producers such as current portfolio member Exxon ... More>>


Rejuvenation: Parata Will Not Contest 2017 Election

Education Minister and National List MP Hekia Parata has today announced that she will not be contesting the next election. She advised the Prime Minister of her decision earlier this year. More>>

Prisons Grow: Government Approves Plans For Increased Prison Capacity

Despite significant progress in reducing crime the number of prisoners has increased faster than projected. This is because the proportion of offenders charged with serious crimes has risen, meaning more people are being remanded in custody and serving more of their sentences in prison. More>>


Gordon Campbell: On Plastic Bag Activism, And Street Harassment

Amusing to see the Act Party experiencing another outbreak of young fogey-ism. What has aroused the ire of Act Leader David Seymour this time is the introduction of a Greens private members bill to the ballot process, calling for a 15 cents levy on plastic bags to reduce pollution. More>>


Unclear Weapons: US Navy Ship Cleared To Visit NZ For Navy's 75th

United States Navy ship, the USS Sampson, has been given clearance to visit New Zealand next month by Prime Minister John Key... “The process for considering the visit by the USS Sampson is the same as that used for all ships attending the International Naval Review." More>>


Get More From Scoop



Search Scoop  
Powered by Vodafone
NZ independent news