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Tomar v Khatri [2024] NZCA 301 (8 July 2024)

Last Updated: 15 July 2024

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The Registrar is directed to appoint counsel to assist the Court, if an appeal is commenced.

100. There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

The High Court judgment that Mr Tomar seeks to appeal

• [1] On 18 November 2021 the High Court delivered a judgment dismissing an application by Ms Khatri for an order under s 166 of the Senior Courts Act 2016 restraining Mr Tomar from commencing or continuing civil proceedings against her.^[1] However Downs J made an order in the exercise of the inherent jurisdiction of the Court prohibiting Mr Tomar from bringing further proceedings in the following terms:^[2]

[63] Mr Tomar is prohibited from:

(a) Continuing all existing litigation in the High Court;

(b) Bringing new proceedings in this Court in which Ms Khatri is a party or the proceeding is about or in any way related to Ms Khatri;

(c) Filing applications of any sort in relation to (a) or (b);

Unless he first pays Ms Khatri, in full, $98,998.15 in outstanding costs.

• [2] Mr Tomar’s pending litigation in the High Court was stayed pending payment of the outstanding costs awards.^[3]

Mr Tomar’s first appeal from the High Court judgment

• [3] On 15 December 2021 Mr Tomar filed a notice of appeal in this Court in relation to the High Court judgment. However Mr Tomar failed to file a case on appeal as required by the Court of Appeal (Civil) Rules 2005 (Rules).^[4] As a result, his appeal was deemed to be abandoned on 17 May 2022 under r 43 of the Rules.

Mr Tomar’s second attempt to appeal from the High Court judgment

• [4] Mr Tomar has now decided that he does wish to pursue an appeal against the High Court judgment. He seeks an extension of time to appeal under r 29A of the Rules. The application is opposed by Ms Khatri.

Relevant principles

• [5] The principles that govern the exercise of the discretion to grant or deny an extension of time to appeal were summarised by the Supreme Court in Almond v Read.^[5] The ultimate question is what the interests of justice require. That necessitates an assessment of the particular circumstances of the case. Factors which are likely to require consideration include:^[6]

(a) the length of the delay;

(b) the reasons for the delay;

(c) the conduct of the parties, particularly of the applicant;

(d) any prejudice or hardship to the respondent or to others with an alleged interest in the outcome;

(e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

• [6] The Supreme Court confirmed that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time because there will be occasions on which the court will risk facilitating unjustifiable delaying tactics on the part of dilatory or recalcitrant litigants if does not consider the merits.^[7] The Supreme Court identified three qualifications to the proposition that the merits may be relevant in this context: the merits will sometimes be overwhelmed by other factors; the merits will not generally be relevant where there has been an insignificant delay; and an extension should only be refused for lack of merit where the appeal is hopeless.^[8]

Applying the principles in this case

• [7] Almost all of the factors listed above weigh strongly against granting an extension of time to appeal. The delay in seeking to appeal has been lengthy. Mr Tomar has not provided any satisfactory explanation for his failure to pursue the appeal in 2022, or for the delay since then. It is especially unsatisfactory for an appeal to be abandoned, then pursued after a substantial delay, without an adequate explanation. Mr Tomar’s conduct of this appeal — failing to pursue it in a timely manner, then seeking to revive it — points against the grant of an extension of time. So too does his conduct of other litigation involving Ms Khatri. Mr Tomar has made numerous unsuccessful applications and pursued unsuccessful appeals, while failing to meet the costs awards made again him.^[9] There is obvious prejudice to Ms Khatri in having this matter reopened for a second time.
• [8] The High Court judgment also records Mr Tomar indicating that he would not object to a prohibition along the lines imposed by the High Court judgment, provided the outstanding costs were “not unlawful”.^[10] The proposed appeal appears to resile from that indication.
• [9] However Mr Tomar’s proposed appeal raises issues of wider public interest in relation to the power of the High Court to make civil restraint orders in the exercise of its inherent jurisdiction, rather than under s 166 of the Senior Courts Act. After the High Court judgment was delivered, this Court delivered a judgment addressing that topic: DFT v JDN.^[11] It is strongly arguable, in light of this Court’s judgment in DFT v JDN, that it was not appropriate for the High Court to make an order prohibiting Mr Tomar from bringing High Court proceedings for an indefinite period. It is also strongly arguable that an order should not be made prohibiting bringing any new proceedings without expressly providing for leave to be sought to do so. The appropriateness of an indefinite prohibition on access to the High Court is a significant issue for the parties in this case, and for the public generally. More generally, there is a public interest in this Court considering the circumstances in which it may be appropriate for a court to make an order staying proceedings until costs orders are paid, and the terms on which any such order might be made.^[12]
• [10] It is therefore in the interests of justice to permit Mr Tomar to bring his appeal out of time, despite the factors identified at [7] above.

Counsel to assist the Court

• [11] Both Mr Tomar and Ms Khatri have to date represented themselves in connection with this appeal. We consider that this is an appropriate case for appointment of counsel to assist the court, to ensure that the relevant legal issues are properly canvassed in the public interest. In the event that Mr Tomar files a notice of appeal, as he is now permitted to do, we direct the Registrar to make arrangements for appointment of counsel to assist the court by identifying arguments both for and against the approach adopted in the High Court judgment. To avoid doubt, counsel to assist the court is not appointed as counsel for either party, and is not expected to engage with either party: their role is neutral and independent.

Costs

• [12] Ms Khatri is in principle entitled to costs under r 53G of the Rules, as the need for Mr Tomar to apply for an extension of time stems from his failure to pursue his earlier appeal in a timely manner. But Ms Khatri is self-represented so cannot recover legal costs, and she will not have incurred any (material) disbursements in connection with her emailed opposition to the application.^[13] In those circumstances, there is no order as to costs.

Result

• [13] The application for an extension of time to appeal is granted.
• [14] The Registrar is directed to appoint counsel to assist the Court, if an appeal is commenced.
• [15] There is no order as to costs.

^[1] Khatri v Tomar [2021] NZHC 3091 [High Court judgment].

^[2] Emphasis original.

^[3] At [64].

^[4] Court of Appeal (Civil) Rules 2005, rr 39 and 40.

^[5] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

^[6] At [38].

^[7] At [39].

^[8] At [39].

^[9] For a brief narrative of the background to these proceedings see High Court judgment, above n 1, at [3]–[23]

^[10] At [61].

^[11] DFT v JDN [2023] NZCA 15, [2023] NZAR 69.

^[12] The Judge’s attention was not drawn to the English authorities on the making of what are known in that jurisdiction as “Hadkinson orders”: see Hadkinson v Hadkinson [1952] P 285 (CA); Mubarak v Mubarak [2004] EWHC 1158 (Fam), [2004] 2 FLR 932; de Gafforj v de Gafforj [2018] EWCA Civ 2070; DS v HR (Hadkinson Order) [2019] EWHC 2425 (Fam), [2020] 1 FLR 945; and BR v SN [2024] EWHC 1512 (Fam).

^[13] McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55] and [56].