IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2009-404-001785
BETWEEN	JOHN DAVID HARDIE
Appellant
AND	COMMISSIONER OF INLAND
REVENUE
Respondent
Hearing:	23 April 2010
Counsel:	No appearance for the appellant
C K Wood for the respondent
Judgment:	23 April 2010
(ORAL) JUDGMENT OF STEVENS J
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140
Copy to:
J Hardie, PO Box 45 281, Te Atatu, Waitakere 0651
JOHN DAVID HARDIE V COMMISSIONER OF INLAND REVENUE HC AK CIV-2009-404-001785 23 April 2010

Introduction
[ 1 ]	There are two matters that need to be dealt with. The first is an application
by the respondent for costs. The second is an application by the appellant for leave to appeal to the Court of Appeal against part of my judgment given on 19 March 2010 and for an order for a stay of execution pending final resolution of all appeal rights.
[2]	By Minute dated 12 April 2010, I advised the parties that the Registrar had allocated a fixture for the hearing of both applications at 2.15pm on Friday, 23 April 2010. The Minute established a timetable leading up to the hearing so that both matters could be fully dealt with today.
[3]	Two of the directions in the timetable provided for the appellant to file and serve documents, namely, a memorandum in opposition to the costs application and any written submissions in support of the application for leave to appeal and the order seeking a stay. Provision was also made for the respondent to file and serve a memorandum in response on both matters by no later than 21 April 2010.
[4]	The appellant has not filed any documents in accordance with the timetable. Counsel for the respondent complied with the timetable, although there was no material to reply to. Mr Wood, however, provided the Court with a helpful memorandum dealing with the issues of costs and the application for leave to appeal.
The hearing
[5]	The case was called by the Registrar at 2.15pm this afternoon. The appellant was not present in Court. I also arranged for the Registrar to call the case in the precincts of the Court. The appellant was not present.
[6]	Just prior to the start of the hearing the Registrar endeavoured to contact the appellant on his mobile telephone. As at 2.20pm the appellant was not answering the Registrar’s calls to his mobile telephone.
[7]	At the start of the hearing, Mr Wood asked whether I had seen a document
that he had received late this morning from the appellant. The document was entitled “notice of application for enquiry and adjournment”. I had not seen a copy of the document. As I was delivering this judgment, a copy of the document which had apparently been filed in Court and received by the case officer at 2.29pm, was handed to me. It was in similar form to the document earlier referred to.
[8]	The appellant sought two orders as follows:
1	Ordering an enquiry into the handling by the Court of the premature
publication of the decision of Stevens J delivered 19 March 2010 at 4pm and attribution/acceptance of responsibility and any remedial processes necessary to prevent a similar happening.
2	Granting an adjournment of the hearing set down to consider the
Applicant’s opposed application for leave to appeal (such application being hereby being reluctantly withdrawn), the Applicant’s application for stay and the Opponent’s memorandum for costs.
[9]	The grounds on which the orders are sought follow and include the following
grounds in support of the application for adjournment:
1	It continues to be very much in the public interest for a superior
Court to consider the issue raised as to taxation of Maori, especially with the signing by the government of TRIP. However the Applicant has had to bow to family pressure (who had the matter sprung upon them) and, in particular, consideration of his wife’s health, to go no further via appeal.
2	The public release of said judgment has created intense diversionary
time pressure on the Applicant since early Friday 16th April to defuse a publicity situation which, as predicted by the Applicant, has had severe adverse repercussions for others not responsible for, nor necessarily in agreement with, the views of, and/or the actions of, the Applicant.
...
[10] I will not burden this judgment by setting out the other grounds, which are to say the least, somewhat difficult to follow.
[ 11 ] It will be immediately apparent that the document contains contradictory
statements. For example, in the second application the appellant seeks an
adjournment of the hearing to consider the applicant’s opposed application for leave
to appeal. There then follows in brackets the words “such application being hereby being reluctantly withdrawn” (sic). This apparent intention to withdraw the application for leave to appeal is repeated in the first ground where the appellant states in the final sentence that he has “had to bow to family pressure (who had the matter sprung on them) and, in particular, consideration of his wife’s health, to go no further via appeal”.
[12]	In so far as the document is a request for the adjournment of the hearing into the matters referred to in the Minute of 12 April 2010, it is declined. I am satisfied that the appellant had ample notice of the hearing today. He was given what I consider to be a reasonable timetable for the filing of a memorandum and written submissions. He chose to do neither. I consider that the appropriate course is to simply deal with the two applications (for costs and the leave application) on the papers, relying on the assistance that I have received in the written submissions filed on behalf of the respondent.
Respondent’s application for costs
[13]	Mr Wood conveniently summarised the relevant principles for determining costs as set out in r 14.2 of the High Court Rules (HCR). He noted that r 14.2(a) established the primary principle that “costs follow the event unless particular considerations dictate otherwise”.
[14]	This is a case where the appellant was partially successful as a result of a concession made by the respondent at the hearing of the appeal. This resulted in the appeal being allowed in part to the extent only of $6,250, the effect of which was to reduce the judgment debt to $10,335,160.32.
[15]	The approach to be adopted in such circumstances is outlined by the Court of Appeal in Packing In Limited (In Liquidation) formerly known as Bond Cargo Limited v Chilcott (2003) 16 PRNZ 869. Tipping J delivered the decision of the Court of Appeal and stated at [6]:
Success or failure in this context is better assessed by a realistic appraisal of the end result rather than by focusing on who initiated what step, and the extent to which that step succeeded or failed.
[16] In this case, the concession by the respondent was made in order to give the appellant the benefit of the doubt over a matter in respect of which counsel considered that the evidence was not entirely clear. The effect of the concession was to save time at the appeal hearing. The overall impact on the judgment debt can only be described as miniscule.
[ 17]	Accordingly, counsel for the respondent submitted that there was no valid reason why costs should not be awarded to the respondent. Further, such costs should not be reduced because of the limited success of the appellant.
[ 18]	Counsel for the respondent has provided ample material to enable the Court to conclude that the appropriate categorisation for costs purposes is category 2, band B. I note that the time claimed by the respondent is only 2.4 days. The total amount sought by way of costs is $3,840.
[ 19]	Having considered the memorandum and the suggested award of costs, I am satisfied that, in the exercise of my discretion, costs in the sum of $3,840 should be awarded to the respondent. Having regard to a realistic appraisal of the end result, I am satisfied that there is no good reason why such costs should be reduced for the limited success achieved by the appellant at the hearing.
Application for leave to appeal
[20] The appellant may only make a further appeal to the Court of Appeal with leave of the High Court or the Court of Appeal: see s 67 of the Judicature Act 1908.
[21 ] In his notice of application for leave to appeal against High Court decisions and for stay dated 23 March 2010, the appellant set out various grounds why leave should be granted. Indeed, some ten grounds were advanced. There is no need for me to repeat them here.
Applicable principles
[22]	The test to be applied is well settled. In Waller v Hider [1998] 1 NZLR 412 (CA), it was stated at 413 that:
Notwithstanding frequent reminders of the test, applications continue to be made which have little or no prospect of success. Counsel are of course to be commended for making all reasonable efforts to advance the cause of their clients but after a first appeal they must draw back and appraise the state of the case dispassionately, asking whether in truth the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of the High Court and of this Court are not to be wasted, nor additional expense for an unsuccessful client incurred without realistic hope of benefit.
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[23]	This approach was further confirmed by the Court of Appeal in Snee v Snee (1999) 13 PRNZ 609 at [19].
[24]	The appropriate test was also discussed in Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 (CA) at 346-347. Somers J gave the decision of the Court and referred to an earlier decision of Salmond J in Rutherfurd v Waite [1923] GLR 34. Somers J stated that leave may be given:
...where the appeal would raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
[25]	Somers J added at 347:
The intention of the legislature remains the same, that one appeal is normally to be sufficient. From this it follows that the case must show some features which justify a second appeal. The indicia mentioned by Salmond J are therefore still important. But as he observed, the section places no fetters on the exercise of the discretion to grant leave. That being so, the guiding principle in the end must be the requirements of justice.
Application for leave
[26]	The first point to note about the application for leave to appeal is that the appellant is under a fundamental statutory obligation to determine the amount of tax payable by him under the tax laws of New Zealand, and to pay such tax on time: see s 15B(a) and (c) of the Tax Administration Act 1994 (the Act). Being a self-employed professional person, the appellant is required to prepare and file returns of his income by 7 July in each year. But the appellant failed to do so for the income years ending 31 March 1992 to 2005, contrary to the provisions of various sections of the Act. As a result, the Commissioner had no choice but to make assessments by default: see s 106 of the Act.
[27]	Next, the appellant failed to challenge the default assessments and as a consequence the assessments are now indisputable and are deemed to be correct: see s 109 of the Act and Allen v Commissioner of Inland Revenue [2006] 3 NZLR 1 (SC). As I said in the judgment at [44]:
The difficulty for the appellant with this submission is that it overlooks the fact that, as he conceded during the argument, he did not file the relevant tax returns in relation to the periods for which the Commissioner has issued default tax assessments. Moreover, the appellant failed to exercise his right to challenge those default assessments and failed to commence proceedings challenging the default assessments before the Taxation Review Authority.
[28]	The judgment against which the appellant seeks leave to appeal considered each of the grounds raised by the appellant. After dealing with the concession by the respondent that led to a reduction in the judgment, the judgment examined the argument raised by the appellant claiming exemption from paying tax because he was a person of Maori descent. That argument was rejected, both as a matter of fact and law.
[29]	The arguments regarding alleged infringements of the New Zealand Bill of Rights Act 1990 and the appellant’s convoluted submissions thereon were also examined. These arguments were found to lack merit.
[30]	As indicated in the judgment at [40] – [42], there was a discussion at the appeal hearing regarding an application by the appellant to adduce fresh evidence in the form of financial schedules for the years 1997 to 2010. The judgment considered the application and concluded that the application should be rejected, noting at [42] that:
...even if such schedules had been admitted as further evidence and been considered as part of the appeal, the evidence would have made no difference whatsoever.
Discussion
[31]	I have considered the various grounds raised by the appellant for seeking leave to appeal. If the latest document filed by the appellant is truly indicative of an intention to withdraw the application for leave, then there is no basis upon which I need to address these grounds.
[32]	But in case the appellant should later contend that somehow there is merit in these multifarious proposed appeal grounds advanced, then I am bound to observe that I consider that there is no question of law or fact capable of bona fide and serious argument on appeal. This is not a case where there is some interest, public or private, of sufficient importance to outweigh the cost and delay of further appeal. Moreover, even applying the generous test of requirements of justice, I am satisfied that there is no basis upon which leave should be granted to the appellant to appeal to the Court of Appeal.
[33]	Accordingly, the application for leave to appeal to the Court of Appeal is hereby dismissed.
Application for stay
[34]	Given that the application for leave to appeal seems to have been withdrawn, then the application for stay must fall with it. The appellant did not appear today to argue in favour of a stay. Even had he done so, I am aware of no basis upon which a stay would have been appropriate or just.
Other matters
[35]	To the extent that the notice delivered to the Court just prior to the hearing raised other matters, it would seem that those are not appropriate or necessary for me to deal with in this judgment. If the appellant wishes to pursue these matters then he may do so elsewhere.
Result
[36]	The application for costs by the respondent is allowed. The sum of $3840 is awarded.
[37]	The application for leave to appeal is dismissed.
[38]	The application for stay is dismissed. I do not need to deal with any other matters.
Costs
[39]	Mr Wood applied for costs for the hearing today. He has been put to considerable trouble by the application for leave to appeal. He responded to the timetable by filing helpful written submissions. I can see no reason why he should not have costs on the hearing today.
[40]	I therefore award costs in favour of the respondent on a 2B basis.
Stevens J