Suncourt (Wholesalers) Ltd v Fiji Islands Revenue and Customs Authority [2005] FJHC 76; HBJ0026.2004 (10 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW ACTION NO.: HBJ0026 OF 2004

BETWEEN:

SUNCOURT (WHOLESALERS) LIMITED
Applicant

AND:

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
Respondent

Counsel: Mr. Cameron & Mr. Parshotam – for the Applicant
Ms S. Tagicaki & Mrs. L. Kabakoro – for the Respondent

Hearing: 10th January, 2005

NOTE OF CHAMBERS HEARING

(1) Amendment

The plaintiff seeks an administrative amendment to the name of the respondent to “The Commissioner of Inland Revenue”. Granted by consent.

(2) Plaintiff Continuing Injunctive Relief

• (1) FIRCA has lodged papers this morning that plaintiff needs to consider.
• (2) Court of Review has scheduled a further mention for 28th February 2005 and accompanied this with timetabling orders.
• (3) Threat of execution on full tax remains.
  

(3) Defendant

S.62(7)

CIR right to receive payment continues.

Only suspension of penalty authority rests with CIR.

S.70

Disc Review Board: has powers to review exercise of CIR discretion.

Penalties are at discretion of Commissioner (Supreme Court decision).

(BUT no review on penalties for disallowed objection.)

FIRCA needs time. Adjourned for instructions. Resumed.

(4) FIRCA not in a position to consent. No further submissions.

(5) Decision

It is clear that matters are progressing to a hearing before the Court of Review.

The next mention is on 28th February, 2005; timetabling orders have been made.

The threat of execution remains.

The same principles apply as in my earlier judgment.

The CIR argues that his right to impose penalties is absolutely discretionary and the statute provides for a review of his exercise of discretion (section 70). I disagree. The CIR has to act within the principles of nature justice when exercising his discretion AND section 70 does not assist as these particular penalties are not subject to that statutory review. In any event even if there was the possibility of a s.70 review a stay of execution of tax penalty should apply until the s.70 procedure has even completed. Therefore the arguments advanced on behalf of the CIR do not assist his position in challenging the injunction or preventing its further and necessary protection of the tax payer.

The fact of the matter is that the Court of Review is seized of the matter and has no power to stay the execution of the penalty tax levied. That power rests with the High Court.

The situation remains as it was in early December.

(i) There is a serious issue to be tried.
(ii) The balance of convenience favours the status quo protection of the tax payer from the imposition of possibly harsh penalties.
(iii) Damages are not an inadequate remedy.
(iv) The Court of Review has no injunctive powers.

Orders:

Accordingly the injunction is extended until midnight on the 4th of March, 2005.

The matter will be recalled for mention before me that day (4/3/05) at 0930.

General leave to the applicants to respond to the CIR’s affidavits by the filing and service of documents on or before the 28th February 2005. Costs reserved.

Gerard Winter
JUDGE

At Suva
10th January, 2005