w w w . L a w y e r S e r v i c e s . i n



Redcliffe Forestry Venture Limited & Others v/s Commissioner Of Inland Revenue


Company & Directors' Information:- B B VENTURE PRIVATE LIMITED [Active] CIN = U52209CT2008PTC020645

Company & Directors' Information:- S A R VENTURE PRIVATE LIMITED [Active] CIN = U70102DL2015PTC275704

Company & Directors' Information:- A K G FORESTRY LIMITED [Strike Off] CIN = U01111DL1996PLC081349

Company & Directors' Information:- R D FORESTRY PRIVATE LIMITED [Strike Off] CIN = U20221UP1998PTC023135

Company & Directors' Information:- N J VENTURE PRIVATE LIMITED [Strike Off] CIN = U70101MH2008PTC186387

Company & Directors' Information:- INLAND CORPORATION PRIVATE LIMITED [Dissolved] CIN = U99999TN1955PTC000997

    CA No. 152, 204 of 2010

    Decided On, 14 December 2011

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE CHAMBERS
    By, THE HONOURABLE MR. JUSTICE STEVENS & THE HONOURABLE MR. JUSTICE WILD

    For the Appellant: A1, A3, A4, M S Hinde, A2, G A Muir, A5 to A8, R B Stewart QC, Advocates. For the Respondent: T G H Smith, J D Kerr, Advocates.



Judgment Text

Stevens and Wild, J.

Introduction

[1] This is an appeal against a judgment of Venning J given on 26 February 2010[1] dismissing, for want of jurisdiction, a proceeding the appellants had commenced in the High Court (the setting aside proceeding). The proceeding sought an order setting aside an earlier judgment, also of Venning J, delivered on 20 December 2004 (the 2004 judgment)[2]. The issue is whether the Judge erred in holding that the High Court lacked jurisdiction to hear and determine the setting aside proceeding.

[2] The genesis of the 2004 judgment was a forestry investment scheme called the Trinity Scheme. The respondent, the Commissioner of Inland Revenue (CIR), treated the Trinity Scheme as a tax avoidance scheme that breached ss BB7 and BG1 of the Income Tax Act 1994 (the Act). The CIR then issued assessments disallowing deductions claimed by investors in the scheme. The 2004 judgment was given in the challenge proceeding brought by the Trinity investors, including the present appellants. The 2004 judgment upheld the CIR’s treatment of the Trinity Scheme as tax avoidance and the CIR’s resulting assessments. The 2004 judgment was upheld on appeal, first by this Court[3] and then by the Supreme Court.[4]

[3] The setting aside proceeding is one of several steps since taken by the Trinity investors challenging afresh the CIR’s tax treatment of the Trinity Scheme. It was commenced in the High Court on 15 September 2009.

[4] The CIR responded to the setting aside proceeding by filing an appearance under protest to jurisdiction and an application under r 5.49 of the High Court Rules (HRC) for an order dismissing the proceeding. In those two documents the CIR asserted that the High Court was functus officio and thus lacked jurisdiction to hear and determine the proceeding, and that any application to set aside the 2004 judgment must be made to the Supreme Court. The appearance under protest to jurisdiction was also grounded on the fact that an application for recall of the 2004 judgment had been dismissed by the High Court[5] and the Court of Appeal.[6]

[5] Counsel for the CIR filed an accompanying memorandum stating that the CIR would not object to the jurisdiction of the Supreme Court to set aside its judgment if an appropriate application were made to the Supreme Court in the challenge proceeding. But he anticipated that the CIR would oppose any such application on the grounds that the Supreme Court had already:

(a) declined to hear the argument now advanced, namely that the CIR should have applied subpart EH (now subpart E2) of the Act; and

(b) determined that the nature of the tax avoidance scheme rendered the 'deduction and spreading issues' moot.

[6] The CIR also foreshadowed his view that any such application would be part of the Trinity Scheme taxpayers’ 'continuing and vexatious attempt ... to delay or obstruct the enforcement of the tax debt owed by them ... to the [CIR]'. He annexed an appendix listing the taxpayers’ 'multitude of unsuccessful proceedings', which included their contemporaneous application to the High Court for judicial review,[7] which the CIR contended 'raises substantially the same issues as are raised in this proceeding'.

[7] In their notice of opposition, the appellants asserted that the High Court had jurisdiction to entertain their setting aside proceeding and that there was no restraint on their bringing that proceeding in the High Court.

The setting aside proceeding

[8] The following sufficiently summarises for present purposes the way in which the setting aside proceeding was pleaded:

(a) The CIR allowed the taxpayers’ depreciation deductions calculated under subpart EG of the Act.

(b) Having allowed those deductions, the CIR then voided the scheme under ss BB9 and BG1 of the Act for the 1997 and 1998 income years respectively.

(c) The Act provides that calculation of expenditure under a financial arrangement can only be made under subpart EH, in particular s EH8(1), and prohibits calculation on any other basis, including under subpart EG (depreciation allowance).

(d) Prior to issuing his assessments of the taxpayers, the CIR obtained independent expert advice from Mr Donald McKay to the effect that subpart EH of the Act was required to be applied to the transactions.

(e) Mr McKay’s advice was not followed by the Commissioner, nor was it discovered by him in the challenge proceeding. The taxpayers became aware of it only in February 2009.

(f) The CIR:

(i) had and continues to have a statutory duty to refer to the application and effect of s EH8 in the Notices of Proposed Adjustments (NOPAs) on which he based his assessments, a duty which he breached and continues to breach; and

(ii) as a party to the challenge proceeding, had an obligation to refer the Court and the taxpayers’ counsel to the application and effect of s EH8.

(g) Had the CIR discharged his statutory obligations and his obligation to the High Court, the High Court would not have made the order it did confirming the assessments.

(h) As a consequence of (a) to (f), the CIR presented a false case to the High Court which resulted in the High Court making an order which it could not legally make and would not otherwise have made. In particular:

(i) there was 'a suppression of the truth so that the evidence and arguments advanced by the [CIR] carried a suggestion or insinuation of something false'; and

(ii) the CIR 'presented a false case by deliberately refraining from putting before the [High Court] relevant and material facts and law for the purpose of securing an order which he knew was unlikely to be made if he had made the full disclosure he was required to'; and

(iii) when cross-examined before the High Court, Ms Tracey Lloyd, an officer of Inland Revenue, deposed that she could have applied subpart EH, without disclosing that she had a legal obligation to do so.

[9] The statement of claim sought an order setting aside the 2004 judgment on the basis that, arising from s EH8(1), the assessments were unlawful and as a consequence of the CIR’s failures the High Court acted without jurisdiction.

The High Court judgment

[10] After setting out the background, Venning J (in the setting aside proceeding) noted counsel’s confirmation that the taxpayers’ claim was based on two grounds. These were:

(a) fraud, in so far as that the CIR presented a false case to the High Court; and

(b) that there was no lawful basis for the assessments confirmed by the High Court, so the Court acted without jurisdiction.

[11] The Judge then noted that the CIR accepted that jurisdiction exists to bring a fresh proceeding to set aside an existing judgment on the basis of fraud, even if the original judgment had been appealed. The CIR’s protest to jurisdiction and application to dismiss were made on the basis that the jurisdiction is limited to cases that allege and prove fraud, whereas the taxpayers’ pleadings do not allege or raise fraud. The CIR said that, absent a proper pleading of fraud or a sustainable pleading that the judgment is a nullity, there is no jurisdiction for the High Court to revisit its earlier judgment that has been unsuccessfully appealed as far as the Supreme Court.

[12] The Judge then defined the two issues for the Court as:

(a) whether the taxpayers had pleaded that the 2004 judgment was obtained by fraud; and

(b) whether the 2004 judgment was a nullity as a consequence of fraud and/or because there was no lawful basis for the assessments, with the result that the 2004 judgment confirming those assessments and finding the Trinity Scheme was tax avoidance was a nullity for lack of jurisdiction.

[13] On the first issue, the Judge took as the starting point the principle of finality in litigation. Prima facie, it will generally not be appropriate for a trial Court to recall its judgment once appeals have been taken and determined because that would amount to a recall of the judgments of the superior court(s).[8] The Judge also referred to the decisions of this Court in R v Smith[9] and Shannon v Shannon,[10] holding that fraud was an exception to the important principle of finality of litigation. But it was an exception that needed to be alleged and proved in the fresh proceeding, which would generally be brought in the Court at first instance, particularly if the facts were in dispute: Kuwait Airways Corporation v Iraqi Airways Corporation (No 2).[11]

[14] The Judge set out large parts of the statement of claim and pointed out that none of the allegations refer to fraud or use that word. At its highest, it was a pleading that the CIR presented a false case to the High Court. The statement of claim made references to 'false case' and 'suppression of the truth', but not to fraud.

[15] Next the Judge rejected a submission by counsel for the taxpayers that equitable fraud sufficed to set aside a judgment. The Judge relied on The Ampthill Peerage, particularly the part of Lord Wilberforce’s judgment stating:[12]

In relation to judgments ... it is clear that only fraud in a strict legal sense will do. There must be conscious and deliberate dishonesty, and the [judgment] must be obtained by it.

The Judge considered this was also the position in New Zealand, citing the judgment of Potter J in Shannon v Shannon,[13] referred to with apparent endorsement by the Court of Appeal.[14]

[16] Turning to the question of what is meant by a 'false case', Venning J noted that each of the 'false case' authorities relied on by the taxpayers involved fraud in the form of perjury or the suppression of material evidence. By contrast, the taxpayers’ allegation that the CIR had assessed them under the wrong statutory provision was an allegation of error at law, which is not fraud. Characterising the allegations in the statement of claim, the Judge said:[15]

It is said the Commissioner knowingly assessed the plaintiffs under the wrong statutory provision. The plaintiffs say that because of Mr McKay’s opinion, the Commissioner knew that EH rather than EG was applicable and by failing to disclose that to the plaintiffs or the Court at any stage, the Commissioner presented a false case to this Court. But if the Commissioner was wrong to assess under EG when EH applied then he was wrong at law. That is not fraud.

[17] The Judge recorded that some of the taxpayers, being aware of Mr McKay’s opinion on subpart EH and the accurate regime, had sought to argue before the Supreme Court the same point they were taking in the present proceeding: that subpart EH rather than EG of the Act was the applicable one.[16] The Supreme Court declined to hear argument on that point because it had not been raised at any earlier stage of the proceeding and was not within the grounds on which leave to appeal had been granted.[17]

[18] Venning J then reached his conclusion on fraud, reiterating the importance of the principle of finality and emphasising that it was not one to be undermined by weak allegations of false case. To set aside a judgment on the basis that it was obtained by fraud requires something in the nature of the deliberate presentation of false evidence, the deliberate suppression of a material fact or facts, or the falsification of documents.[18] The Judge said this:

[51] No matter how it is pleaded, nor how artfully counsel may seek to phrase it, the underlying basis of the allegation of false case by the plaintiffs in this case is that the Commissioner was wrong as a matter of law or had no proper basis to have assessed tax in relation to the licence premium, one aspect of the 'black letter' law, by applying EG rather than EH. I interpolate here that even though the Courts took a different view on the 'black letter' analysis of the scheme, each Court confirmed the Trinity Scheme was tax avoidance. The plaintiffs’ case is an allegation of an error of law, not fraud. Unlike evidence, the applicability of a statutory provision cannot, by definition, be concealed or suppressed. The present case is far removed from the presentation of a 'false case' as that phrase has been applied and understood in the authorities cited by the plaintiffs.

[19] The Judge then referred to the assessing officer’s acceptance in evidence in the High Court that the CIR could have applied the accruals rules under subpart EH, but had chosen not to. As the officer had accepted that the CIR could have applied the accruals rules under subpart EH when that question was raised directly with her, it could hardly be suggested a false case was put by the CIR before the High Court. Rather, the taxpayers, for their own reasons, had chosen not to raise the matter with the CIR or the Court until it was raised for some of the taxpayers before the Supreme Court.[19]

[20] For completeness, the Judge rejected the notion that Mr McKay’s opinion was fresh evidence. He considered the opinion came nowhere near demonstrating that a miscarriage of justice had occurred. Mr McKay’s opinion became known to the taxpayers during the appeal process and was referred to by counsel in the Supreme Court. That was the time to argue the fresh evidence point, as the High Court lacked jurisdiction to set aside its previous judgment on the basis of fresh evidence.[20]

[21] Venning J moved then to deal with the taxpayers’ general argument that the 2004 judgment was a nullity as it was made without jurisdiction. He concluded that the point was defeated by the wording of s 138P of the Act and the principle that an administrative decision – in this case the CIR’s assessment – remained effective unless and until declared a nullity by a competent Court. The taxpayers had not argued in the High Court that the assessment was a nullity. Even if the High Court were wrong not to cancel the assessment, that was an error of law to be addressed on appeal. Given that there had been appeals, '[t]he start and end point is that there is no jurisdiction for [the High] Court to declare its earlier decision a nullity as it is functus officio.'[21] The Judge held:[22]

If the [taxpayers] are right and the process has been flawed because at law there was no valid assessment and therefore no valid decisions of this Court, (and logically the Court of Appeal and Supreme Court), the Supreme Court must be the proper Court to determine that particular submission as the last superior Court to have dealt with the matter.

[22] The Judge’s conclusion was that fraud had not been alleged so as to engage the High Court’s jurisdiction to set aside its 2004 judgment. That judgment was not a nullity. The CIR’s assessments and the High Court’s findings of tax avoidance, as confirmed by the Court of Appeal and Supreme Court, remained valid. The High Court was functus officio.[23] Venning J therefore dismissed the proceeding.

The appellants’ position

[23] Although the appellants’ three separate submissions differed in their detail, five main points emerge. First, s 16 of the Judicature Act 1908 gave the High Court jurisdiction to entertain the setting aside proceeding. The Court was functus officio only in respect of the challenge proceeding, not the new setting aside proceeding. Further, the wide jurisdiction of the English courts as at 1860 was conferred on the High Court.

[24] Second, any consideration of the pleadings in and the merits of the setting aside proceeding, and of whether it was an abuse of the Court’s process, should have been reserved for any application made by the CIR to strike out that proceeding. Such consideration was not appropriate on an application under r 5.49 of the HCR. That rule is not apt in the circumstances this case. It is normally confined to cases where the issue is extraterritorial jurisdiction or exclusion of jurisdiction by statute.

[25] Third, the Court entertained an argument by the CIR which ranged well beyond the bare 'functus officio' ground on which he protested the Court’s jurisdiction. By so doing the Court deprived the appellants of their opportunity, indeed their obligation,[24] to file affidavits setting out their evidence of fraud. The hearing directions given by Venning J in his 19 November 2009 teleconference minute provided only for the filing of submissions.

[26] Furthermore, the appeal should be allowed and the setting aside proceeding reinstated so that the appellants can amend their pleading, the CIR can file any strike out application, and the appellants can meet that application with affidavit evidence of the fraud they allege.

[27] Relevant to this latter point, Mr Stewart QC, for the fifth to eighth appellants, handed us a document headed 'The Plaintiffs’ False Case Allegation'. He explained that he had prepared this hurriedly over the luncheon adjournment at the High Court hearing and handed it to Venning J in the course of argument on the afternoon of the hearing on 2 February 2010. The Judge did not refer to this document during the rest of the hearing, and there is no mention of it in his judgment.

[28] The document details what the plaintiffs allege is a deliberate strategy by the CIR designed to keep from the Court his duty and obligation to calculate the deemed interest deductions allowed to the plaintiffs under subpart EH, and to re-characterise the facts as required by subpart EH. It alleges that the CIR’s strategy 'comprised suppressing all reference to the relevant facts and to EH8(1)'. It contends that the CIR knew that his strategy breached his obligation not to mislead the Court and to put all relevant facts and law before the Court so it could determine whether the CIR had properly exercised his assessing powers. The following excerpt conveys the tenor of this document:

Faced with these allegations of concealment and non-disclosure of law and facts, and of breach of duty, the applicant [the CIR] appears to think the failure to add to that list perjury and falsification or corruption of documentation, or collusion between ostensibly hostile parties, neutralises any wrongdoing (defendant’s submissions paras 27 and 58).

[29] Fourth, the appellants considered they had alleged fraud. But given Venning J’s view that they had not, they seek the opportunity to amend their pleadings so as squarely to allege fraud.

[30] Fifth, the appellants also wish to challenge the proposition that fraud is the only exception to the principle of the finality of a judgment. As this goes directly to the ambit of the High Court’s jurisdiction, that Court is the correct forum in which to mount that type of challenge.

[31] In summary, therefore, the appellants contended that the High Court has jurisdiction to hear and determine the proceeding dealing with the allegations summarised at [8] above. Arguments as to the meaning and scope of the pleadings are to be decided under an application to strike out the statement of claim, should the CIR make such an application under r 15.1 of the HCR. The contentions of the CIR did not fall to be considered on a challenge to jurisdiction made under r 5.49. The way in which the CIR’s challenge was dealt with by the High Court under the latter rule thus resulted in a breach of natural justice or fairness. One aspect of this contention was that the appellants were deprived of any opportunity to replead or present evidence of their claim of fraud, the genesis of which was contained in the document presented to the Judge at the hearing by Mr Stewart. But such document was not a repleading and the supporting evidence of fraud was not available to the Court below. In this and other material respects the hearing in the High Court misfired. Thus the appeal should be allowed and the proceeding remitted to the High Court to be dealt with in the appropriate way.

The CIR’s position

[32] For the CIR, Mr Smith advanced four main submissions. First, he submitted that the appellants’ abandonment of the three Trinity Scheme appeals rendered their setting aside proceeding moot and an abuse of process which should be struck out.[25] Effectively, having abandoned those collateral attacks on the judgment of the Supreme Court in Ben Nevis, the appellants are claiming they can still attack that judgment in the setting aside proceeding. Yet the allegations in those abandoned collateral appeals were of conscious maladministration by the CIR: allegations very similar to fraud.

[33] Further, the appellants have not explained how they can maintain a 'false case' pleading in their setting aside proceeding when they are no longer pursuing grounds of appeal challenging Venning J’s findings. Their only item of 'fresh' evidence was the opinion of Mr McKay. It was not fresh because the appellant Accent Management referred to it in submissions in the Supreme Court. Nor was it cogent, because it could not have led to a different result in the Trinity Scheme challenge proceeding.

[34] Second, the appellants were wrong to submit that the High Court had a general jurisdiction to set aside one of its judgments that had been confirmed on appeal. That submission was based on the assertion that the New Zealand High Court had acquired such a general jurisdiction because the English Courts had such a jurisdiction in 1860. That cannot be correct because there were no appellate Courts in England in 1860. They were created only in the 1870s by the English Judicature Acts.

[35] It is untenable for Mr Stewart to rely on the Court of Appeal’s judgment in Shannon as authority for a general 'setting aside' jurisdiction, one not limited to fraud. The case of Cinpres Gas Injection Ltd v Melea[26] is actually authority for the proposition, consistent with Shannon, that the fraud exception is the only basis on which the principle of finality can be defeated. Consequently, the appellants’ pleadings must be looked at to see whether their claim is within the fraud exception.

[36] Third, and following from his last point, Mr Smith accepted that an allegation that the CIR had obtained the 2004 judgment by fraud must be made to the High Court. That was so both because the High Court had given the 2004 judgment, and because establishing whether there was fraud is appropriately within the High Court’s jurisdiction and not that of an appellate court. Further, Mr Smith accepted that if the appellants seek to challenge the boundaries of the principle of the finality of litigation, then they must initially do so in the High Court.

[37] But Mr Smith contended that the ultimate issue in this proceeding, as in all the other collateral attacks on the Supreme Court judgment in Ben Nevis, is the correctness of the legal analysis of the Trinity Scheme. However it is framed, the appellants’ argument in this proceeding amounts to a submission that the High Court has jurisdiction to set aside the Supreme Court’s judgment as wrong in law, and to hold that justice miscarried in the Supreme Court because it refused to hear the very legal argument upon which the appellants now rely.

[38] Mr Smith reiterated his submission that the appellants are not alleging fraud by the CIR. He accepted that there is no particular magic in the word 'fraud'. Nevertheless, only fraud in the strict legal sense suffices.[27] Fraud in that strict legal sense – actual dishonesty – is not pleaded here. Indeed, the 'false case' and 'suppression of the truth' pleadings reflect the appellants’ inability expressly to plead fraud or provide any basis for a fraud pleading.

[39] Mr Smith contended that never has a lower court asserted a jurisdiction to tell a superior court that it got the law wrong. Such a jurisdiction would be antithetical to the hierarchical nature of the judicial system, particularly given the Supreme Court’s jurisdiction to reopen its judgment. The difference between facts and the law is of critical importance here. All the relevant fraud cases involve misrepresentations of fact. The Court of Appeal emphasised that in Shannon.[28] The rationale for the fraud exception is that a judgment cannot stand if fraud removes its factual basis. To set aside such a judgment is not antithetical to the hierarchical structure of the Courts. But, if the allegation is error of law by an appellate court, that attacks the judgments given on appeal.

[40] Fourthly, Mr Smith submitted that striking out the setting aside proceeding would not deny the appellants access to justice. Mr Smith elaborated this submission in several ways. First, he reiterated that the appellants’ proper recourse (if they had any) was to apply to the Supreme Court to exercise its inherent jurisdiction to recall its judgment in Ben Nevis. That was because every crucial element of the appellants’ core allegation about subpart EH of the Act, including that it 'trumps' s BG1, had been put to the Supreme Court. For several reasons the Supreme Court had declined to entertain that argument.[29] It was a new point that had not been raised at any earlier stage in the proceeding. It was not one within the leave granted. Further, the new argument could not be reconciled with Accent Management’s previous stance, nor with the deductions it had claimed.

[41] The second aspect was that the appellants had appeal rights which they had exhausted. Next Mr Smith reiterated his third main submission: an acceptance that the High Court – and the High Court alone – retained jurisdiction to entertain an application to set aside the 2004 judgment on the ground that it had been obtained by fraud. Mr Smith accepted that the appellants had not had the opportunity to lead, in the High Court, their evidence of fraud. But there was nothing in that point, because it was patent that the appellants were alleging error of law on the part of the Supreme Court, and not fraud by the CIR.

[42] One member of the Court raised with Mr Smith a concern that the appellants may have thought they were coming to the High Court to deal only with a narrow jurisdiction point. Mr Smith did not accept that. He pointed out that the appellants’ notice of opposition made it clear they knew they had to bring themselves within the fraud exception, or possibly the nullity exception. Despite knowing that, all their arguments had come down to alleged error of law: that the Supreme Court wrongly analysed the correct legal approach to the Trinity Scheme.

[43] Lastly, Mr Smith noted that the appellants were no longer relying on the so-called 'nullity' exception that Venning J had ruled on in some detail. He thus did not need to address that. Mr Smith submitted that overall the CIR was correct to use a protest to jurisdiction as the means of bringing the setting aside proceeding to an end.

High Court Rules – applicable principles

[44] Because of their relevance to the discussion that follows, we set out below the rules in the HCR relating to appearance and objection to jurisdiction (r 5.49) and dismissing or staying proceedings (r 15.1). We also address briefly the principles that apply to each procedure.

Appearance and protest to jurisdiction

[45] In the High Court, the CIR entered a protest to jurisdiction and applied to dismiss the setting aside proceeding on the basis that the High Court had no jurisdiction. The rule relied upon, and under which Venning J considered the application of the CIR, was r 5.49. The rule relevantly provides:

5.49 Appearance and objection to jurisdiction

(1) A defendant who objects to the jurisdiction of the court to hear and determine the proceeding may, within the time allowed for filing a statement of defence and instead of so doing, file and serve an appearance stating the defendant’s objection and the grounds for it.

(2) The filing and serving of an appearance does not operate as a submission to the jurisdiction of the court.

(3) A defendant who has filed an appearance may apply to the court to dismiss the proceeding on the ground that the court has no jurisdiction to hear and determine it.

(4) The court hearing an application under subclause (3) must,-

(a) if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; but

(b) if it is satisfied that it has jurisdiction to hear and determine the proceeding, dismiss the application and set aside the appearance.

(5) At any time after an appearance has been filed, the plaintiff may apply to the court by interlocutory application to set aside the appearance.

(6) The court hearing that application must,-

(a) if it is satisfied that it has jurisdiction to hear and determine the proceeding, set aside the appearance; but

(b) if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss both the application and the proceeding.

(7) To the extent that an application under this rule relates to service of process effected outside New Zealand under rule 6.27 or 6.28, it must be determined under rule 6.29.

(8) The court, in exercising its powers under this rule, may do so on any terms and conditions the court thinks just and, in particular, on setting aside the appearance it may extend the time within which the defendant may file and serve a statement of defence and may give any directions that appear necessary regarding any further steps in the proceeding in all respects as though the application were an application for directions under rule 7.9.

...

The procedure for filing an appearance and objecting to the jurisdiction of the High Court was introduced into the HCR by the Judicature Amendment Act (No 2) 1985, then being r 131.[30] Rule 5.49 is in essentially the same terms. Case law provides some guidance as to how the rule should be applied. Unsurprisingly, the vast majority of cases determined under rr 131 and 5.49 have involved protests to jurisdiction based on the principle of territoriality.[31] Of the remaining cases, protests have almost exclusively been made on the ground that the High Court’s jurisdiction is precluded by statute or an arbitration clause.[32] For example, the Court has been found to lack jurisdiction where:

an appeal was lodged in circumstances where leave was required from the court below and no such leave was granted;[33]

(b) the matters raised in the proceeding were within the exclusive jurisdiction of the Employment Court or Employment Relations Authority;[34]

(c) an appeal was filed from a decision of the Residence Review Board, but the requirements for bringing an appeal under the HCR were not complied with in time and the Immigration Act 1987 did not permit extensions of time;[35] and

(d) an application was made under ss 320 and 321 of the Companies Act 1955 and the statutory requirement to serve a statement of claim was not complied with.[36]

[47] We have located two significant cases that considered the circumstances in which it will and will not be appropriate to follow the procedure of filing an appearance and objecting to the High Court’s jurisdiction.

[48] The first case, New Zealand Historic Places Trust v State Insurance General Manager,[37] involved the old State Insurance building on Lambton Quay in Wellington. The Trust resolved to classify the building under s 35(1)(b) of the Historic Places Act 1980 as a building that merited permanent preservation because of its architectural quality and issued a protection notice in respect of it. As State had demolition and redevelopment plans for the site, it objected to the classification. Using the objection procedures provided in the Town and Country Planning Act 1977, State sought to avoid the consequences of the protection notice. When the Trust did not accept a recommendation by the Wellington City Council that it should revoke the protection notice, State appealed to the Planning Tribunal. The Trust became concerned that the Tribunal might make an order under s 125D of the Town and Country Planning Act, requiring the Trust to take State’s interest in the building under the Public Works Act 1981. If such an order were made, the Trust would have had insufficient financial resources to comply with its obligations. It therefore resolved to cancel the protection notice.

[49] The Trust applied to the High Court for declarations answering questions about to the proper construction of the legislation. State filed an appearance and objected to the Court’s jurisdiction on the basis that the questions did not concern the construction of any statute and the answers could not be binding on any party. Heron J dealt with that objection as follows:[38]

[State] took objections which can generally be described as objections in substance to the declaratory judgment procedure and followed that by an application to dismiss the proceedings for want of that jurisdiction. In truth, that application is in substance an application to strike out, it seems to me, although I need to deal with the questions of jurisdiction. The appearance under protest to the jurisdiction was founded on grounds which I deal with on the application to dismiss. However there is no proper role for such an appearance in a case involving two New Zealand litigants in respect of property situate in the main street of the Capital city. The Court must have jurisdiction except perhaps where the case can by law only be tried in another New Zealand jurisdiction. Applications for declaratory judgments are heard in the High Court. Without attempting to be exclusive the rule is generally available when the party claims it is not subject to the jurisdiction of the New Zealand Courts. That cannot be the case here. See s 16 Judicature Act 1908.

(Emphasis added.)

[50] The Judge went on to consider the objection as if State had applied to strike out the Trust’s application and declined to strike it out.

[51] The second case is the decision of this Court in Doug Hood Ltd v Gold & Resource Developments (NZ) Ltd.[39] The parties had participated in an arbitration. Gold & Resource Developments Ltd (GRDL) applied to the High Court for leave to appeal against an interim award made by the arbitrator. Doug Hood Ltd (DHL) filed an objection under r 131 contending that the Court lacked jurisdiction because the contract between the parties provided that the arbitration award shall be final and binding. The High Court dismissed the application and DHL appealed. This Court dismissed the appeal, stating:

[15] DHL’s case is that GRDL has no legal entitlement to invoke the provisions of the Arbitration Act. It contends that cl 5 has no application to this award because it is excluded by the provisions of the contract between the parties. The argument for the appellant confuses the jurisdiction of the Court to grant relief with its jurisdiction to entertain and decide a claim for relief. The obvious flaw in that argument is that the Legislature has vested in the High Court the jurisdiction to determine whether GRDL should be granted leave to appeal under the Act. The High Court has jurisdiction to determine that question. There is no suggestion the jurisdiction is reserved to some other Court or tribunal within or without New Zealand.

[16] The High Court can no doubt determine on the application for leave whether it has jurisdiction to grant it, depending on whether the Second Schedule to the Act applies. There is, however, no basis for saying the High Court has no jurisdiction to determine that question. The parties by their contract may choose a different jurisdiction from the High Court of New Zealand. Then there may be room for a protest to jurisdiction in respect of that Court. There is no room for a protest to jurisdiction under r 131 where the High Court of New Zealand is the only appropriate forum in respect of any dispute arising out of the contract.

(Emphasis added.)

[52] We consider that the effect of the case law on r 5.49 (and its predecessor, r 131) can be summarised thus:

(a) The procedure for filing an appearance and objecting to the High Court’s jurisdiction will generally only be suitable where a party claims that:

(i) it is not subject to the jurisdiction of the New Zealand courts;

(ii) the case can, by law, only be determined by a different New Zealand court or authority; or

(iii) the High Court’s jurisdiction is precluded by the operation of a contractual term or because statutory requirements have not been complied with.

(b) If none of those situations arises and the application or proceeding is of a kind that the High Court can hear, it must have jurisdiction.

(c) The procedure under r 5.49 is only concerned with the Court’s jurisdiction to hear and determine the application or proceeding. Rule 5.49 is not concerned with the Court’s jurisdiction to grant relief in a proceeding within its jurisdiction.[40] Thus, in an application under r 5.49, the Court’s focus must be on the allegations made in the statement of claim and any affidavit evidence put forward to support or contradict them.[41]

Applications to strike out proceedings

[53] Had the CIR applied to strike out the proceeding on traditional grounds, such as no reasonably arguable cause of action or abuse of process, it would have been made under r 15.1 of the HCR, which provides:

15.1 Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it-

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4) This rule does not affect the court’s inherent jurisdiction.

[54] We do not need to discuss in great detail the established principles applicable when a Court is considering an application to strike out under r 15.1. The following brief summary will suffice as a basis for comparing the powers under this rule with the conceptually very different power engaged when a party has filed a protest to jurisdiction under r 5.49 of the HCR.

[55] Generally a strike out application proceeds on the assumption that the facts pleaded in the statement of claim are true.[42] There is an exception, to which reference will be made later, where a proceeding alleging fraud involves a collateral attack on a judgment of the Court. If an application to strike out is brought in such a context, there is an obligation on the plaintiff to produce some probative evidence to support the claim of fraud.[43]

[56] The power to strike out is to be exercised sparingly.[44] The Court should only strike out a proceeding where the cause of action is so clearly untenable that it cannot possibly succeed.[45] The mere fact that the application to strike out raises a difficult question of law and may require extensive argument does not exclude the exercise of the Court’s powers under r 15.1.[46] However, in a developing area of the law, the Court should be slow to strike out the claim. In the Supreme Court’s decision in Couch v Attorney-General, Elias CJ observed that '[p]articular care is required in areas where the law is confused or developing'.[47]

[57] Our outline of the requirements and principles applying to each of r 5.49 and r 15.1 demonstrates the differences between the two rules. In summary, under r 5.49 the Court’s concern is the effect on its jurisdiction of territorial considerations, or of statutory or contractual provisions excluding the Court’s jurisdiction to entertain the case at all. But under r 15.1, the focus is on the tenability of the claim made or cause(s) of action pleaded: is it reasonably arguable and/or is it an abuse of the Court’s process? While the Court has jurisdiction over the matter generally, it will strike out the claim if proper grounds for striking out are established.

Discussion

[58] This appeal turns on a relatively confined issue. Given the nature of the application filed by the CIR in response to the setting aside proceeding, we are satisfied that r 5.49 was not the appropriate vehicle for the CIR’s challenge. As is clear from the summary of principles at [52] above, r 5.49 is restricted to protests to jurisdiction in the strict sense. This was not such a case. Rather, the 'protest to jurisdiction' by the CIR was in reality a challenge to jurisdiction in a broader sense, namely, that the High Court was functus officio and lacked jurisdiction to grant the remedy sought because the 2004 judgment had been appealed to the Supreme Court. The CIR’s argument was the High Court had no 'jurisdiction' because jurisdiction now lay with the Supreme Court on an application by the appellants to recall the judgment of the Supreme Court.

[59] A challenge of that type fell to be determined on an application to strike out under r 15.1. In dealing with it as a protest to jurisdiction, the High Court fell into error by confusing its power to grant relief (by setting aside the 2004 judgment) with its jurisdiction to hear and determine the setting aside proceeding.[48] We are satisfied that the way in which the CIR presented and argued the application in the High Court demonstrates that the application was, in substance, an application to strike out. As such it ought to have been dealt with under r 15.1. The High Court must have jurisdiction to determine that strike out application.

[60] The approach taken in the Shannon case does not assist the CIR. Mrs Shannon had obtained a judgment from the High Court in a matrimonial property proceeding. The judgment was upheld by this Court. Mr Shannon issued a fresh proceeding to set aside the High Court judgment on the ground that Mrs Shannon had obtained it by fraud and perjury. Mrs Shannon applied to strike out the fresh proceeding; she did not protest the jurisdiction of the Court.

[61] At the time the strike out application was first heard, Mr Shannon had not given full particulars of the alleged fraudulent conduct. Potter J, considering jurisdiction as a preliminary matter, held that the High Court had jurisdiction to hear the fraud proceeding and it was immaterial that the earlier High Court judgment had been affirmed by the Court of Appeal. She found that fraud, if proven, displaces the principle of res judicata.[49] The strike out application was dismissed as being premature. Potter J noted that Mr Shannon faced a high threshold; the fraud alleged would have to be 'fully and distinctly pleaded and particularised'. At that stage, if no reasonable cause of action was disclosed, Mrs Shannon could pursue the strike out application.[50]

[62] Mr Shannon was then given the opportunity to provide further particulars of his allegations of fraud and perjury. That having occurred, in a subsequent judgment Potter J struck out the claims on the basis that they disclosed no tenable cause of action and were an abuse of the Court’s process.[51] The appeal to this Court was dismissed.[52]

[63] The judgments in Shannon do not indicate that the issue in this case is one that could properly be determined on a protest to the Court’s jurisdiction under r 5.49. To the contrary, they suggest that the High Court’s jurisdiction to set aside one of its own judgments that has been appealed on the ground of fraud is a matter for determination on a strike out application after full particulars of the alleged fraud have been provided. Accordingly, Shannon is consistent with our finding that the High Court had jurisdiction to hear and determine the setting aside proceeding.

[64] The CIR (like the Judge) relied on cases such as Hikuwai v Sanford Ltd,[53] Collier v Creighton[54] and UDC Finance Ltd v Madden,[55] which are authority for the proposition that the High Court must respect the principle of res judicata and that judgments of superior courts in the hierarchy are final and binding. But we do not consider those cases, all of which dealt with applications for a new trial on the basis that new or fresh evidence had become available, are applicable where fraud is alleged in a separate proceeding commenced for that purpose. None of the cases relied on by the CIR concerned a challenge by way of protest to jurisdiction.

[65] Neither are we assisted in resolving the issue in this case by two decisions relied on by the appellants, In re St Nazaire Co[56] and Cinpres Gas Injection Ltd v Melea Ltd.[57] The Court in the St Nazaire case rejected an argument (effectively the same as the one relied on by the appellants) that the High Court inherited a wide rehearing jurisdiction from the old Courts of Chancery. It held that such jurisdiction was essentially appellate in character and could not continue to be exercised by the High Court following the introduction of the appellate court structure. Thus, far from assisting the appellants, St Nazaire is detrimental to that aspect of their case. However, we do not see that issue as being relevant to the determination of this appeal. The question whether the High Court’s jurisdiction to set aside its own judgments that have been appealed is limited to cases where fraud is alleged and proved, or is wider in scope, goes to the High Court’s jurisdiction to grant the remedy sought by the appellants. But, as we have said, that is not what the r 5.49 procedure is designed to address.[58].

[66] The Cinpres case is authority for the proposition that, in England at least, the doctrine of res judicata can only be defeated by fraud of a party. As this Court confirmed in Shannon,[59] that principle has not been doubted in New Zealand.

[67] We agree with the appellants’ submissions that the High Court hearing misfired in part because there was no opportunity for the appellants, faced with a strictly jurisdictional challenge by the CIR, to replead and to present affidavit evidence outlining and particularising the alleged fraud. What occurred was that Mr Stewart was able to hand up to the Judge a document headed 'The Plaintiff’s False Case Allegation', particularising the allegations of fraud. But that document is not referred to in the judgment.

[68] We have considerable sympathy for the Judge in the High Court. The CIR was wrong to use r 5.49 for what was in reality a strike out application. Yet the appellants failed to take steps to halt the CIR’s incorrect reliance on r 5.49. The hearing thus proceeded in a confused and unsatisfactory way.

[69] The upshot was that the appellants were denied the opportunity to replead and, when challenged on the true nature of their claims, had no chance to adduce full particulars of the alleged fraud supported by affidavit evidence. We do not consider the document Mr Stewart handed to the Judge represented a proper opportunity to plead and particularise an allegation of fraud. It is significant that the document did not feature in the judgment under appeal.

[70] It follows from the above that we do not agree with counsel for the CIR that, if we were to find that the CIR’s application to the High Court ought not truly to be characterised as a protest to jurisdiction (under r 5.49), we should nevertheless treat it as an application to strike out and proceed to strike the appellants’ case out. Such a submission is unsustainable. To treat an application filed for one purpose (to protest the Court’s jurisdiction) as a vehicle for a completely different purpose (to strike the proceeding out) without the usual procedural safeguards would not be fair to the appellants.

[71] Having filed the setting aside proceeding, the appellants now seek an opportunity to do three things:

(a) amend their pleadings;

(b) put forward what they say is probative evidence of fraud; and

(c) argue their case in its repleaded form, contending that the evidence they have brings the case within the fraud exception or that the fraud exception should be broadened to encompass their case.

Counsel for the CIR accepted that the third point was a matter that should properly be before the High Court in the first instance.

[72] The appellants should have an opportunity to follow this course. Should they choose to replead, the fraud alleged must be fully and distinctly pleaded and particularised. The obligations of the appellants in this regard were referred to by this Court in Shannon as follows:

[122] The necessity to place the alleged new material before the Court at strike-out stage was recently confirmed by Randerson J in Paper Reclaim Ltd v Aotearoa International 6/12/04, Randerson J, HC Auckland CIV2004-404-4728. Randerson J rejected the plaintiff’s submissions that in a proceeding of this kind the Court is obliged, in accordance with traditional strike-out principles, to treat the plaintiff’s allegations in the statement of claim as true. Rather, he stated that:

[14] Where a fraud proceeding of this kind is brought, the Court is being asked to entertain a collateral attack on a solemn and considered judgment of this Court outside the ordinary processes of appeal. There is an obligation on the plaintiff to produce some probative evidence to support its claim when the defendant applies to strike out. There is support for that proposition when one considers the obligations on an unsuccessful party who moves for a new trial. If that course had been followed, Paper Reclaim would have had to put its cards on the table and produce the new evidence it relied on in admissible form. It would have had the onus of establishing that the new evidence was such as to justify a new trial.

[15] In a proceeding such as this, I consider it is appropriate on a strike-out application for the plaintiff to produce some probative evidence to support its allegations and to explain how and when the new material came to light. Otherwise, the ordinary processes of the Court by way of appeal could be subverted by the simple expedient of making allegations in the statement of claim without any factual foundation of any kind. Plainly, that could amount to an abuse of process.

[73] Whether the CIR applies under r 15.1 to strike out the proceeding, and on what grounds, will no doubt depend on the repleading and the nature of the affidavit evidence filed by the appellants. Future procedural steps will be overseen by the High Court.

Result

[74] The appeal is allowed. The order dismissing the proceeding is quashed. The proceeding is remitted to the High Court.

[75] The respondent is to pay the appellant costs for a standard appeal on a band A basis plus usual disbursements.

[1] Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2011] 1 NZLR 336 (HC).

[2] Accent Management Ltd v Commissioner of Inland Revenue (2004) 22 NZ

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TC 19,027 (HC). [3] Accent Management Limited v Commissioner of Inland Revenue [2007] NZCA 230, (2007) 23 NZTC 21,323. [4] Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2 NZLR 289 and noted further at [2009] 2 NZLR 358 [Ben Nevis]. [5] Accent Management Ltd v Commissioner of Inland Revenue (2006) 22 NZTC 19,758 (HC). [6] Accent Management Ltd v Commissioner of Inland Revenue [2007] NZCA 231, (2007) 23 NZTC 21,366. [7] Accent Management Ltd v CIR (2010) 24 NZTC 24,126 (HC). [8] The Judge relied on Hikuwai v Sanford Ltd (1996) 9 PRNZ 587 (HC); UDC Finance Ltd v Madden [2000] 1 NZLR 504 (HC) and Collier v Creighton CA108/97, 23 February 1998. [9] R v Smith [2003] 3 NZLR 617 (CA). [10] Shannon v Shannon [2005] NZCA 83; (2005) 17 PRNZ 587 (CA) at [102]. [11] Kuwait Airways Corporation v Iraqi Airways Corporation (No 2) [2001] 1 WLR 429 at [24]. [12] The Ampthill Peerage [1977] AC 547 (HL) at 571. [13] Shannon v Shannon [2002] 3 NZLR 567 (HC) at [33]. [14] Shannon v Shannon [2005] NZCA 83; (2005) 17 PRNZ 587 (CA), cited by Venning J at [15]. [15] At [43]. [16] At [44]–[45]. [17] Ben Nevis at [151]. [18] At [49]–[50]. [19] At [53]. [20] At [56]. [21] At [69]. [22] At [70]. [23] At [71]. [24] The appellants contend that obligation – to place the evidence of fraud before the Court – is made clear in the Court of Appeal’s judgment in Shannon v Shannon [2005] NZCA 83; (2005) 17 PRNZ 587 (CA) at [122]. [25] The appeals formally abandoned on 7 June 2011 include CA204/10 and CA69/11. Those are the appeals from the judgment of Keane J in the Accent Management litigation striking out a judicial review application (Accent Management v CIR (2010) 24 NZTC 24,126 (HC)), and his subsequent judgment awarding the CIR indemnity costs (Accent Management v CIR (2010) 24 NZTC 24,126 (HC)). [26] Cinpres Gas Injection Ltd v Melea Ltd [2008] EWCA Civ 9; [2008] RPC 17 (CA). [27] The Ampthill Peerage [1977] AC 547 (HL) at 571. [28] At [104]. [29] Ben Nevis at [149]–[155]. [30] The rule came into effect from 1 January 1986. [31] To name but a few, see Poynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300; Wing Hung Printing Company Ltd v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754; Haig v Edgewater Developers Ltd [2009] NZCA 390, (2009) 7 NZELR 14; Nationwide News Pty Ltd v University of Newlands CA202/04, 9 December 2005; Baxter v RMC Group plc [2003] 1 NZLR 304 (HC); Kang v Hyundai Electronics Industries Co Ltd (1995) 8 PRNZ 628 (CA); Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZLR 513 (PC). [32] Cases involving arbitration clauses include Sure Care Services Ltd v At Your Request Franchise Group Ltd HC Auckland CIV-2008-404-5112, 31 July 2009; Allan Scott Wines and Estates Ltd v Eurowine Fine Wines (1990) Ltd HC Wellington CIV-2007-485-1728, 30 January 2008; Hi-Tech Investments Ltd v World Aviation Systems (Australia) Pty Ltd HC Auckland CIV-2006-404-3579, 13 October 2006. [33] G v Ministry of Social Development HC Wellington CIV-2007-485-2130, 23 May 2008. [34] New Zealand Fire Service Commission v McCulloch [2010] NZHC 888; (2010) 7 NZELR 433 (HC); Bowport Ltd v Alloy Yachts International Ltd [2004] 1 NZLR 361 (HC); Hutchesson v Milfos International Ltd HC Hamilton CP49/99, 10 March 2000; Herbison v Fresco Advertising Ltd HC Wellington M253/99, 17 December 1999. [35] Kaur v Chief Executive of the Department of Labour HC Wellington CIV-2005-485-585, 23 February 2006. [36] Re Vision Bloodstock Ltd (in liq) HC Hamilton M113/91, 24 February 1998. [37] New Zealand Historic Places Trust v State Insurance General Manager (1990) 3 PRNZ 323 (HC). [38] At 327. [39] Doug Hood Ltd v Gold & Resource Developments (NZ) Ltd [1999] NZCA 159; (1999) 13 PRNZ 362 (CA). [40] Doug Hood Ltd v Gold & Resource Developments (NZ) Ltd [1999] NZCA 159; (1999) 13 PRNZ 362 (CA). [41] Stone v Newman [2002] NZCA 48; (2002) 16 PRNZ 77 (CA) at [24]–[25], applying the principle set out earlier in Kuwait Asia Bank EC v National Mutual Life Nominees Ltd (No 2) [1989] 2 NZLR 50 (CA) at 54. [42] Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267. [43] Shannon v Shannon (CA) at [122]. [44] Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641 (CA). [45] Couch v Attorney-General [2008] 3 NZLR 725 (SC) at [33]. [46] Gartside v Sheffield Young & Ellis [1983] NZCA 37; [1983] NZLR 37 (CA) at 45. [47] Couch at [33]. [48] Compare the approach of this Court in Doug Hood Ltd v Gold & Resource Developments Ltd at [15]–[16]. [49] Shannon v Shannon (HC) at [49]–[50]. [50] At [51]–[52]. [51] Shannon v Shannon HC Auckland CIV-2002-404-1702, 16 August 2004. [52] Shannon v Shannon [2005] NZCA 83; (2005) 17 PRNZ 587 (CA). [53] Hikuwai v Sanford Ltd (1996) 9 PRNZ 587 (HC). [54] Collier v Creighton CA108/97, 23 February 1998. [55] UDC Finance Ltd v Madden [2000] 1 NZLR 504 (HC). [56] In re St Nazaire Co [1879] 12 Ch D 88 (CA). [57] Cinpres Gas Injection Ltd v Melea Ltd [2008] EWCA Civ 9; [2008] RPC 17 (CA). [58] See the discussion at [46]–[52] above. [59] Shannon v Shannon (CA) at [102]–[104].
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