Jindal v District Court at Auckland
[2025] NZCA 409
•18 August 2025 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA489/2024 |
| BETWEEN | GAUTAM JINDAL |
| AND | DISTRICT COURT AT AUCKLAND |
| Hearing: | 31 March 2025 |
Court: | Hinton, Brewer and Gault JJ |
Counsel: | Appellant in person |
Judgment: | 18 August 2025 at 2.30 pm |
JUDGMENT OF THE COURT
AAn extension of time to appeal is granted.
BThe application for leave to adduce further evidence is declined.
CThe appeal is dismissed.
DWe make an order under s 178(2) of the Senior Courts Act 2016 that Mr Jindal pay the costs of counsel assisting for a standard appeal on a band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gault J)
Mr Jindal appeals the decision of Downs J in the High Court dismissing Mr Jindal’s application for judicial review of the decision of Judge B L Sellars KC in the District Court at Auckland that a privately laid perjury charge should not be accepted for filing.[1]
[1]Jindal v District Court at Auckland [2024] NZHC 1695 [judgment under appeal]; and Jindal v Woods DC Auckland CRI-2023-004-3087, 4 May 2023 [District Court minute].
Mr Jindal filed his notice of appeal two days out of time. Given the short extension of time required, we grant the extension.[2]
Background
[2]Pursuant to the Court of Appeal (Civil) Rules 2005, rr 5A(1)(c), (2)(a) and 7(a).
We adopt Downs J’s summary of the background:[3]
[3] Mr Jindal declined to pay Rice Craig, a law firm, $999.81 in fees. Rice Craig sued Mr Jindal for non-payment. Neville Woods, a partner of the firm, swore an affidavit in support of the firm’s claim. The claim went to trial. Mr Woods testified. In short, Mr Woods said he spoke to Mr Jindal by telephone on, or about, 13 February 2020, and during that call, told Mr Jindal he would be billed in accordance with Rice Craig’s usual terms. Mr Jindal testified that no such call occurred.
[4] On 11 November 2022, Judge D J McDonald upheld Rice Craig’s claim. The Judge concluded Mr Woods did call Mr Jindal on, or about, 13 February 2020. I call this the telephone call.
[5] On 19 April 2023, Mr Jindal filed a charge of perjury against Mr Woods in relation to the telephone call. Essentially, the charge alleged Mr Woods committed perjury when he said, on oath, the telephone call occurred. Mr Jindal filed information in support of the charge.
[6] On 1 May 2023, the District Court directed Mr Jindal to file formal statements in support of the charge. Mr Jindal replied that day, saying he had already done so. Mr Jindal re-sent the same information to the Court he had filed on 19 April 2023.
[7] On 4 May 2023, Judge Sellars held the charge should not be accepted for filing. The Judge held the information provided by Mr Jindal could not establish a prima facie case of perjury in relation to the telephone call.
[8] The Judge addressed, for “completeness”, whether the prosecution was an abuse of process. The Judge held it was because it constituted “an attempt to relitigate the issue of the telephone call”.
High Court decision
[3]Judgment under appeal, above n 1 (footnotes omitted).
Before setting out the Court’s screening role in relation to private prosecutions under s 26 of the Criminal Procedure Act 2011 (CPA), Downs J said he would address the grounds of review by answering three questions:[4]
(a)Was there a breach of natural justice?
(b)Was the Judge’s approach incompatible with s 50 of the Evidence Act 2006?
(c)Did the Judge err in law in relation to evidential sufficiency?
[4]At [11].
On the first question, the Judge concluded that:
[26] … Judge Sellars did not err by obtaining Judge McDonald’s decision, or by not calling for Mr Jindal’s submission on that decision, before concluding the prosecution constituted a presumably obvious instance of an abuse of process. Judge McDonald’s decision had unquestionable relevance to whether the prosecution was abusive, and in obtaining and referring to that decision, Judge Sellars did no more than exercise the “straightforward” screening function contemplated by s 26.
The second question concerns s 50(1) of the Evidence Act, which provides that evidence of a judgment or a finding of fact in a civil proceeding is not admissible in another proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given. The Judge concluded that:
[34] … Judge Sellars did not rely on Judge McDonald’s factual finding about the telephone call to reach any conclusion about whether the telephone call had been made. Rather, Judge Sellars recognised another Judge — Judge McDonald — had made a factual finding about the telephone call, and had regard to the fact of that determination in concluding the same subject matter underlay the proposed prosecution.
On the third question, the Judge concluded that “Judge Sellars did not err in concluding a prima facie case had not been identified”.[5]
[5]At [41].
The Judge also addressed Mr Jindal’s submission that the hearing before Judge McDonald was “a charade”. He said that the claim for judicial review of Judge Sellars’ decision disallowing the charge to be filed was not the correct forum for a submission of this nature.[6]
[6]At [43].
In addition, the Judge noted that: “Mr Jindal never addressed why he should be allowed to bring a judicial review claim.”[7] He referred to this Court’s observation in Mann v Wilson that the High Court’s supervisory function (by way of judicial review) in this area is a circumscribed one.[8]
Approach on appeal
[7]At [44].
[8]Mann v Wilson [2024] NZCA 181 at [71].
On a general appeal by way of rehearing, “the appellate court has the responsibility of considering the merits of the case afresh”.[9] The appellate court “must be persuaded that the decision is wrong”,[10] but “[t]he weight it gives to the reasoning of the court or courts below … is a matter for the appellate court’s assessment”.[11] Further:[12]
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. …
Issues on appeal
[9]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[10]Austin, Nichols & Co Inc v Stichting Lodestar, above n 9, at [13].
[11]Kacem v Bashir, above n 9, at [31]. No deference is required beyond the customary caution appropriate when seeing the witnesses provides an advantage because credibility is important: see Austin, Nichols & Co Inc v Stichting Lodestar, above n 9, at [13]; and Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [31]–[32].
[12]Austin, Nichols & Co Inc v Stichting Lodestar, above n 9 (footnote omitted). See also Kacem v Bashir, above n 9, at [32].
Mr Jindal and counsel assisting, Ms McKenna, agreed that the appeal raised the following issues to be determined:
(a)did the High Court err in not taking into account the alleged procedural unfairness in the proceeding/hearing before Judge McDonald, and failing to deal with this under the Court’s inherent jurisdiction;[13]
(b)did the High Court err in its consideration of Judge Sellars’ evidential sufficiency determination by failing properly to consider machine-produced evidence contrary to ss 13 and 137 of the Evidence Act; and
(c)did the High Court err in its consideration of Judge Sellars’ abuse of process determination by:
(i)finding there was no breach of natural justice by Judge Sellars’ reliance on Judge McDonald’s decision, in circumstances where the appellant did not provide Judge Sellars with the decision, and where he was not given an opportunity to be heard on it; and
(ii)finding no breach of s 50 of the Evidence Act.
Evidence on appeal
[13]The appellant considers this to be an overarching issue. Counsel assisting considers it relates only to the High Court’s consideration of Judge Sellars’ abuse of process determination.
Mr Jindal included in the case on appeal the following documents that were not before Judge Sellars when she made her s 26(3) determination:
(a)his affidavit of 4 November 2022 and related exhibits, filed in the civil proceeding determined by Judge McDonald;
(b)the transcript from the civil proceeding;
(c)notices of hearing for the civil proceeding; and
(d)a 3 November 2022 email exchange between Mr Jindal and the District Court Registry regarding the hearing date.
Downs J declined Mr Jindal’s application to adduce this information in the High Court. By inviting this Court to consider the documents, Mr Jindal essentially challenges this decision.[14] We address these documents below.
Discussion
[14]Mr Jindal made an oral application for leave to adduce these documents as further evidence at hearing: Court of Appeal (Civil) Rules, r 45.
Mr Jindal submitted the genesis of this case lies in a procedurally unfair hearing which led to the District Court judgment upholding Rice Craig’s claim. He submitted the errors committed by the District Court Judge in that civil proceeding remain uncorrected and continue to “compound” and “percolate” and that subsequently, when Judge Sellars was dealing with the charging document, she relied upon the earlier District Court decision without any notice to Mr Jindal. He submitted this meant he was denied an opportunity to address the unfairness in the earlier decision or issues with the factual findings. He submitted the High Court was wrong in failing to recognise the gravity of the issue and in not exercising its inherent jurisdiction. In addition to seeking relief on appeal in relation to Judge Sellars’ decision, Mr Jindal seeks a finding that Judge McDonald’s decision was a nullity, citing Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue,[15] and R v Smith involving the Court’s inherent jurisdiction.[16] He submitted this is a clear case.
[15]Mr Jindal cited Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 6, [2008] 2 NZLR 413 at [9]–[10]. The concept of nullity is referred to in Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2013] NZHC 2361 and Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 350.
[16]R v Smith [2003] 3 NZLR 617 (CA) at [58]–[59].
There is no merit in Mr Jindal’s appeal. We deal with the issues raised in a different order and make the following points.
First, we were advised during the hearing by counsel assisting that Mr Jindal initially appealed the District Court decision upholding Rice Craig’s claim but then settled and the appeal was withdrawn with no issue as to costs.[17] In reply, Mr Jindal submitted that his earlier appeal settled before it was called and unfairness was not determined. Instead of pursuing an appeal, Mr Jindal sought to bring a private prosecution.
[17]Counsel assisting also advised that Mr Jindal had applied to recall Judge McDonald’s decision upholding Rice Craig’s claim (which Mr Jindal said had been deferred) and had applied for judicial review of that decision and sought interim orders which might affect this matter. Mr Jindal’s application for interim orders was dismissed by Jagose J: Jindal v District Court at Auckland [2025] NZHC 864.
Secondly, we agree with Judge Sellars that the evidence provided by the proposed private prosecutor was “insufficient to justify a trial” in terms of s 26(3)(a) of the CPA.[18] As the Supreme Court said in the leading case of S (SC 58/2019) v Vector Ltd (Vector), s 26 is “intended to operate as an initial or preliminary screening mechanism of proposed private prosecutions”.[19] Mr Jindal’s reference to ss 13 and 137 of the Evidence Act in relation to telephone data does not answer the evidential lacuna in the District Court, particularly as to the ingredient of the charge that Mr Woods knowingly and intentionally misled the Court in saying the telephone call occurred. As Downs J said, mistaken but honest testimony is not perjury. Even if it were appropriate to supplement evidence on review of a s 26 decision or further appeal, there remains insufficient evidence.
[18]District Court minute, above n 1, at [16].
[19]S (SC 58/2019) v Vector Ltd [2020] NZSC 97; [2021] 1 NZLR 1 at [2].
Thirdly, we also agree that there was no breach of natural justice (including bias) when Judge Sellars decided the charge should not be accepted for filing. Section 26(1)(b) of the CPA provides for formal statements to be filed but there is no separate right to a hearing as part of the District Court’s s 26 screening role. Prescott v District Court at North Shore did not suggest otherwise.[20] It concerned evidential sufficiency. Judge Sellars was entitled to consider Judge McDonald’s decision for the separate purpose of considering abuse of process — that is, collateral attack on Judge McDonald’s decision. The Supreme Court acknowledged in Vector that the Court is not limited in the same way as it is in relation to evidential sufficiency in the material that can be considered in determining whether the proposed prosecution is an abuse of process.[21] Also, as Downs J suggested, it would have been preferable and prudent for Mr Jindal to have provided Judge McDonald’s decision to Judge Sellars.[22]
[20]Prescott v District Court at North Shore [2017] NZHC 2828, [2018] NZAR 307 at [47]–[48].
[21]S (SC 58/2019) v Vector Ltd, above n 20, at [90].
[22]Judgment under appeal, above n 1, at [27].
Fourthly, there is no merit in Mr Jindal’s point concerning s 50 of the Evidence Act, for the reason given by Downs J. Judge Sellars was not referring to Judge McDonald’s decision for the purpose of proving the existence of a fact in issue in the earlier proceeding, but rather to conclude that the same subject matter underlay the proposed prosecution.[23] Such limited use is consistent with this Court’s decision in Attorney-General v Siemer, in which court decisions were not being admitted for the purpose of proving the existence of a fact in issue in the earlier proceeding, but rather to provide a reliable record of the relevant earlier proceedings to determine whether an order was appropriate under s 166 of the Senior Courts Act 2016 (preventing the bringing of further civil proceedings without the High Court’s leave).[24] Judge Sellar’s limited use of Judge McDonald’s decision was permissible for the purpose of assessing whether the prosecution constituted an attempt to relitigate the issue of the telephone call and was therefore an abuse of process.
[23]At [34].
[24]Attorney-General v Siemer [2024] NZCA 435.
Fifthly, given our conclusion on evidential insufficiency, it is strictly unnecessary for us to decide on this appeal whether the charge should not have been accepted for filing solely on the ground of abuse of process even if there had been sufficient evidence. However, as Ms McKenna submitted, if Mr Jindal sought to refile a charge of perjury against Mr Woods in relation to the telephone call, an abuse of process finding would be inevitable.
Finally, Mr Jindal also raised concern that Judge McDonald unfairly converted an interlocutory hearing into a trial of Rice Craig’s claim. But Mr Jindal raised that concern with the Judge, who did not consider that Mr Jindal was prejudiced. Mr Jindal said he raised this ground in the High Court, but the Judge did not deal with it.[25] However, the High Court did address Mr Jindal’s related submission that the hearing before Judge McDonald was “a charade”, stating that the claim for judicial review of Judge Sellars’ decision disallowing the charge to be filed was “not the correct forum for a submission of this nature”.[26] We agree, and this appeal is also not the appropriate forum.
[25]Mr Jindal raised it again in Jindal v District Court at Auckland, above n 17.
[26]Judgment under appeal, above n 1, at [43].
We also do not accept the submission that by considering Judge McDonald’s decision, Judge Sellars opened the door to review of the notes of the hearing and the transcript of evidence. It was not her role to address any alleged unfairness in the earlier decision (and Mr Jindal acknowledged that she would not have been aware of it). The documents that Mr Jindal sought to adduce in the High Court (unsuccessfully) and in this Court do not assist on any proper review of Judge Sellars’ decision.
We accordingly decline Mr Jindal’s application for leave to adduce further evidence. Further, even if the earlier hearing before Judge McDonald was originally scheduled to be an interlocutory hearing, we agree with the Judge that Mr Jindal was not prejudiced. There was no breach of natural justice or bias as submitted. The resulting decision was not a nullity. There is no need for the Court’s inherent jurisdiction to be engaged in the absence of an effective alternative.
Costs
We consider it appropriate to make an award of costs against Mr Jindal under s 178(2)(b) of the Senior Courts Act. His appeal has failed, which ordinarily would lead to costs being awarded against him.[27] His appeal lacked merit and did not raise issues of substantial public importance.[28] An award of costs also incentivises Mr Jindal to carefully consider the merits of commencing or continuing civil proceedings.[29]
Result
[27]Earthquake Commission v Insurance Council v New Zealand Inc [2015] NZHC 457, (2015) 22 PRNZ 427 at [6(d)]; and Prescott v North Shore District Court [2024] NZHC 2362 at [63].
[28]Prescott v North Shore District Court, above n 27, at [63].
[29]D v District Court at Manukau [2021] NZHC 582 at [13].
An extension of time to appeal is granted.
The application for leave to adduce further evidence is declined.
The appeal is dismissed.
We make an order under s 178(2) of the Senior Courts Act 2016 that Mr Jindal pay the costs of counsel assisting for a standard appeal on a band A basis together with usual disbursements.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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