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

 

NZEI Survey Report: Special Needs Students Missing Out

The survey revealed that around 16 percent of students were on schools’ special needs registers, but nearly 90 percent of schools’ special needs coordinators did not believe there was adequate support for students and their learning... More>>

ALSO:

Interim Report: Waitangi Tribunal On Ture Whenua Legislation

Labour on Proposed changes to Maori land rules: “To have Treaty Negotiations Minister Chris Finlayson dismiss findings as ‘bizarre’ is totally disingenuous and disrespectful. What’s bizarre is Maori Development Minister Te Ururoa Flavell stubbornly pushing through this Bill before the Waitangi Tribunal has even completed its report..." More>>

ALSO:

Spy Update: Appointment Of GCSB Acting Director

GCSB Chief Legal Advisor Lisa Fong will become the Acting Director of the Government Communications Security Bureau (GCSB) from 15 February 2016, Minister Responsible for the GCSB Christopher Finlayson announced today. More>>

Protests Close Roads: TPP Signed In Auckland

“TPP was signed by Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Viet Nam.” More>>

ALSO:

Emails Behind 'Diplomatic Immunity' Case: Whitehead Report Released

“As previously indicated the conclusions reached by Mr Whitehead’s investigation are not unexpected but they are very disappointing,” Mr Mccully says. “At the heart of the matter is a single email, along with procedural shortcomings, which gave Malaysian officials the impression it would be acceptable for Mr Rizalman to return to Malaysia." More>>

ALSO:

Gordon Campbell: On The Treaty/TPP Overlap, And Iowa

The fears about the ISDS provisions in the Trans Pacific Partnership deal are well-founded. The reality is that there is a sharp uptick in the occurrence of ISDS litigation in developed countries, and even the right wing likes of The Economist have been souring on the process for some time. More>>

ALSO:

Christchurch Red Zone Offers: Fresh High Court Proceedings

Grant Cameron, Solicitor for the Quake Outcasts said “the action seeks judicial review of the Crown’s recent decision to make a fresh offer to purchase properties from uninsured property owners in red zones. More>>

ALSO:

PM's Post-Cabinet Press Conference: Waitangi And TPP

Prime Minister John Key on Tuesday said his office has received an invitation for him to visit the Lower Marae on Waitangi Day, but was waiting for a meeting of the Te Tii Marae Trustees. More>>

ALSO:

Flagged: 'Wrong Colour' Bridge Flag To Change

NZ First: Only 13 days after National trumpeted its legally questionable flag on Auckland Harbour Bridge, it is now coming down because it is the wrong colour... “Mr Key’s latest flag fiasco is another waste of taxpayers' money. Given it is coming down, down is exactly the location where it should remain. More>>

ALSO:

School's In: Children Head Back To School

“Across the whole of this year we expect 61,820 five year olds will begin their primary schooling for the first time,” says the Ministry of Education head of sector enablement and support Katrina Casey. More>>

ALSO:

Dog & Lemon: FBI Disagrees With NZ Government Over Police Chases

Multiple studies, quoted by the FBI, show that once suspects realise they're no longer being chased; they tend to slow down to normal driving speeds and therefore become far less of a risk. The FBI report also categorically rejected the argument that abandoning police chases meant ‘giving in’ to offenders. More>>

ALSO:

Get More From Scoop

 

LATEST HEADLINES

 
 
 
 
 
 
 
 
 
Politics
Search Scoop  
 
 
Powered by Vodafone
NZ independent news