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

MEDIA RELEASE – FOR IMMEDIATE PUBLICATION

COMMISSIONER OF INLAND REVENUE v REDCLIFFE FORESTRY VENTURE LTD

(SC 8/2012) [2012] NZSC 94

PRESS SUMMARY

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.

ENDS

[Scoop copy of judgment: SC_8_2012__CIR_v_Redcliffe__Ors.pdf]

© Scoop Media

 
 
 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

Gordon Campbell: On The Tokenism Of New Zealand's Role Against Islamic State

To date, the Opposition has continued to occupy itself with the marginalia of the issue. E.g. whether Key did or didn’t know whether Barack Obama would be present at the US briefing last week on IS, or whether New Zealand’s military involvement is or isn’t already a fait accompli.

It might be better to tackle the issue, head on. Our contribution against IS will be to send SAS forces to train the Iraqis? That’s like offering trainers to General Custer just as the 7th cavalry reached the Little Big Horn.
More>>

 

Parliament Today:

Scoop Business: Shell And Todd Caught Drilling Without Approval

Multi-national oil company Shell’s New Zealand arm and local energy giant Todd Energy have breached the new law governing New Zealand’s Exclusive Economic Zone, the Environmental Protection Authority says in an Oct. 10 document released by the Green Party. More>>

ALSO:

Labour: Tea Breaks 'Gone By Lunch Time'

“How cynical that on the eve of Labour weekend, the National government is pushing through legislation that takes away the statutory right to tea and meal breaks along with collective bargaining protections, and makes vulnerable workers jobs even less secure." More>>

ALSO:

Gordon Campbell: On Pharmac, Gough Whitlam And Sleater-Kinney

We’re not at the outset of these negotiations. The outset was six years ago, and negotiators were hoping to have some sort of ‘framework’ deal finished in time for the APEC meeting in a few weeks’ time. These ‘extreme’ positions are what we’ve reached near the intended end of the negotiations… More>>

ALSO:

PM Of Many Hats: Questions, No Answers On Whale Oil

Dr RUSSEL NORMAN (Co-Leader – Green) to the Prime Minister: How many times since November 2008 has he spoken with blogger Cameron Slater on the phone and how many times, if any, has he texted him?
Rt Hon JOHN KEY (Prime Minister): None in my capacity as Prime Minister. More>>

ALSO:

Aussie Investigation Dropped: Call On Minister McCully To Pursue The Case Of Balibo Five

West Papua Action is deeply concerned at the lack of any clear outcome from the Australian Federal Police inquiry into the 1975 deaths of the ‘Balibo Five’ including NZ journalist Gary Cunningham. More>>

ALSO:

'Feed The Kids' Bill: Metiria Turei To Lead Fight On Feeding Hungry Children

Green Party Co-leader Metiria Turei is urging all political parties to support the Feed the Kids Bill which she inherited today from Mana leader Hone Harawira. More>>

ALSO:

Parliament Today: State Opening Of Parliament

The House sat at 10.30am on Tuesday before MPs were summoned to hear the Speech from the Throne in the Legislative Council Chamber. More>>

ALSO:

Tertiary Education: Students Doing It Tough As Fees Rise Again

The Government is making it increasingly difficult for Kiwis to gain tertiary education as fees continue to rise and access to student support becomes even more restricted, Labour’s Tertiary Education spokesperson Chris Hipkins says. More>>

ALSO:

Housing, Iraq: PM Press Conference – 20 October 2014

Prime Minister John Key met with press today to discuss:
• Housing prices and redevelopment in Auckland
• Discussions with Tony Abbott on the governmental response to ISIS, and New Zealand’s election to the UN Security Council More>>

ALSO:

Get More From Scoop

 

LATEST HEADLINES

 
 
 
 
 
 
 
 
Politics
Search Scoop  
 
 
Powered by Vodafone
NZ independent news