Jindal v District Court at Auckland
[2025] NZHC 2259
•11 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-378
[2025] NZHC 2259
UNDER the Judicial Review Procedure Act 2016, Declaratory Judgments Act 1908, New Zealand Bill of Rights Act 1990 BETWEEN
GAUTAM JINDAL
Applicant
AND
DISTRICT COURT AT AUCKLAND
First Respondent
RICE CRAIG
Second Respondent
Hearing: 8 July 2025 Appearances:
Applicant in person
No appearance for First Respondent S C Dench for Second Respondent B M McKenna as counsel assisting
Judgment:
11 August 2025
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 11 August 2025 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
Crown Law, Wellington Rice Craig, Auckland
B M McKenna, Barrister, Auckland
JINDAL v DISTRICT COURT AT AUCKLAND [2025] NZHC 2259 [11 August 2025]
Introduction
[1] This judicial review proceeding arises from a challenge by the applicant, Gautam Jindal, to the conduct of a civil hearing before Judge D J McDonald in the Auckland District Court on 9 November 2022. The resulting judgment is dated 11 November 2022.1
[2] The applicant alleges that the hearing was conducted in breach of fundamental principles of natural justice and his rights under s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA), specifically due to Mr Jindal being compelled to conduct a substantive trial without proper notice, being required to cross-examine without notice, and facing apparent judicial bias.
[3] The applicant seeks declaratory relief that his rights were breached and that the District Court decision is a nullity. He also seeks a token award of NZBORA damages.
Facts
[4] The underlying dispute arose from a claim by the second respondent, Rice Craig, to recover unpaid legal fees of $999.81 for advice provided to Mr Jindal in February 2020. Mr Jindal’s primary defence was that there was no contract for the services. He also challenged the District Court’s jurisdiction.
[5] On 11 April 2022, Mr Jindal filed an interlocutory application in the District Court seeking to strike out the proceeding on jurisdictional grounds. Mr Jindal’s position was that Rice Craig was in breach of its obligations under the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, and that the District Court lacked jurisdiction to hear matters related to that Act or those Rules.
[6] On 27 June 2022, Judge Dawson issued a minute rejecting the above argument and directing the matter to be set down for a half-day hearing, also setting timetable directions for trial. That same day, the District Court Registry issued a notice for a “Back Up Interlocutory Application” hearing on 20 September 2022.
1 Rice Craig v Jindal [2022] NZDC 22625.
[7]Mr Jindal appealed Judge Dawson’s decision to the High Court.
[8] Meanwhile, in a memorandum dated 5 August 2022, Mr Jindal requested the District Court to vacate the allocated backup fixture of 20 September 2022. Rice Craig filed a memo dated 8 August 2022 opposing that request.
[9] The High Court appeal of Judge Dawson’s decision was heard by Jagose J on 25 August 2022. A decision dismissing the appeal was issued the same day.2
[10] On 26 August 2025, Rice Craig filed a memorandum in the District Court providing a copy of the High Court appeal judgment and advising (among other things) that the matter was ready to be heard and asking that the backup fixture be made firm.
[11]On 28 August 2022, Mr Jindal:
(a)filed a document in the High Court seeking to recall that decision of 25 August 2025, or alternatively he sought leave to appeal; and
(b)filed an urgent memorandum in the District Court seeking a stay.
[12] I set out the content of Mr Jindal’s memorandum dated 28 August 2022 to the District Court below (footnotes omitted):
1. The appeal, filed by the defendant, was not allowed. The decision of High Court dated 25.08.2022 (declining appeal) was attached to the memorandum filed by the plaintiffs on 26.08.2022. I have filed an application in the High Court seeking leave to appeal under s60(2) of the Senior Courts Act 2016, today.
2. I ask that this matter in District Court be stayed until such time that the appeal is adjudicated by the Court of Appeal. This will be “prudent” and in the “interests of justice”.
2 Jindal v Sieprath [2022] NZHC 2130.
3. I submit that it will be “prejudicial” and “unreasonable” for the hearing of the substantive matter to proceed before the issue of District Court’s jurisdiction is resolved on appeal. The need to preserve an appeal’s efficacy was recognised by the Court of Appeal in New Zealand Insulators Ltd v ABB Ltd:
“The object, where it can be fairly achieved, must surely be so to arrange matters that, when the appeal comes to be heard, the appellate court may be able to do justice between the parties, whatever the outcome of the appeal may be.”
4. I note the following factors in this case as per the test prescribed by Justice Hammond:
a.If the District Court hearing is progressed, the appeal will be rendered “nugatory”. This will be highly prejudicial for the appealing party;
b.Since the amount under dispute is $999, there is no real prejudice to the plaintiff;
c.Third parties are neither involved nor prejudiced;
d.The appeal will clarify an “important” and a “novel” point of law i.e., whether a Court is allowed to deal with matters when the defendant’s defence is not within its jurisdiction? It seems this issue has not been clarified by a Senior Court and the legal fraternity is of different opinion on this matter.
e.Due to the very small amount ($999) in dispute, the overall balance of convenience lies with the defendant, being the appellant pursing his appeal rights;
f.Since I have applied for leave under s60(2) within “three days” of the appeal being disallowed, my bona-fides are established. There is no delay on my part.
5. If the Court thinks it necessary, I am willing to provide an undertaking as to any damages caused due to this stay. Although, I submit that given the
$999 amount claimed, the utility of an undertaking is negligible.
6. Since judicial resources and hearing fixtures are precious, it is prudent that the back-up fixture for 20th Sept 2022 is released and the same may be allocated to another matter.
[13] Rice Craig filed and served a memorandum dated 30 August 2022 in opposition. It stated (among other things): “The Plaintiff’s case is ready to proceed. It has filed and served its evidence”.
[14] Mr Jindal filed and served a memorandum in reply dated 30 August 2022, including the following:
7. The fact that the case on appeal will have an effect of
a.confining the Jurisdiction of the District Court correctly; and
b.the same will be heard by a Senior Court;
is all the more reason why the District Court should hold back from hearing the substantive matter on 20th September 2022.
[15] On 7 September 2022, the District Court Registry advised that a Judge was considering the various memoranda and would make directions shortly. Later that afternoon, Registry sent a notice by email vacating the reserve date and issuing a new document headed “Notice of Hearing of Interlocutory Application”, giving a firm fixture of three hours commencing at 10 am on 9 November 2022.
[16] In a subsequent email dated 7 September 2022 responding to Rice Craig’s query, a Registry Officer said: “This has been referred back to Judge who said the Backup can be vacated and that the firm is to be heard”.
[17]Mr Jindal then sent an email at 8.36 am on 8 September 2022 which included:
Communication appreciated.
May I clarify if this fixture for 09 November 2022 is to hear both the substantive matter and the interlocutory application dated 11 April 2022 ?
I note that 23rd September 2022 backup ( which is now been vacated) was set for a defended interlocutory hearing.
[18] The Registry office responded to Mr Jindal at 8.57 am stating: “The hearing will be to an Interlocutory Defended Hearing”.
[19] At 9.07 am on 8 September 2022, Mr Woods forwarded Mr Jindal’s 8.36 am email to the Registry recipients only, with the following comments:
We refer to Mr Jindal mischievous email below.
The Strike out Application dated 11 April challenged the Courts jurisdiction to hear the matter. This was dismissed by Judge Dawson on 10 June 2022, then Mr Jindal appealed the same (and lost in the High Court).
The Simplified Trial is set for 9 November, not any jurisdictional “Application”. Please correct your earlier email, for Mr Jindal must be under no misapprehension as to the position. We are sure he is not, but please do not be so fooled.
[20]It seems the District Court Registry staff did not send any correcting email.
[21] On 25 October 2022, Mr Jindal filed another memorandum repeating his request that the substantive matter not proceed, including the following (footnote omitted):
2. I submit that it will be “prejudicial” and “unreasonable” for the hearing of the substantive matter to proceed before the issue of District Court’s jurisdiction is resolved on appeal. The need to preserve an appeal’s efficacy was recognised by the Court of Appeal in New Zealand Insulators Ltd v ABB Ltd: …
[22] In a further memorandum dated 26 October 2022, he agreed that his previous memorandum was intended to seek a “deferment” of the hearing set for 9 November 2022.
[23] On 1 November 2022, Mr Jindal sought an update on whether the 9 November 2022 hearing was being vacated and was told by Registry on 2 November 2022 that “All memoranda are currently with the presiding Judge and the Court is waiting for their decision on your request for next week’s hearing to be vacated”.
[24] Mr Jindal responded at 9.46 am on 3 November 2022 asking for confirmation about whether the 9 November hearing was for the defendant’s interlocutory application dated 11 April 2022, or alternatively was the substantive matter.
[25] At 2.14 pm on 3 November 2022, the Registry stated: “The hearing on the 9th is a interlocutory hearing”. Mr Jindal responded at 2.18 pm saying that “There has been a decision in relation to that interlocutory matter by the High Court”, and that he was awaiting leave to appeal, so he did not think the matter could be heard on 9 November 2022.
[26] On 3 November 2022 at 4.24 pm, Registry issued the following minute from Judge McDonald, with related explanation:
Minute from Judge McDonald
“I have considered the defendants request on the papers. The defendants application to adjourn the hearing is refused. If he wants to renew it on the day of the hearing he can do so. Please advise the parties”
Judge had made the above Minute before Mr Jindal sent his email below. I forwarded the email to Judge and asked him if he wished to update his Minute. He replied to say: “Judge has said there is no further comment or direction from what he has already stated (below)”(i.e. the above Minute)
In summary then:
· The hearing next week will proceed.
· The Registry will not enter into any further correspondence prior to the hearing.
· Some emails have been sent only to the Court. Any future correspondence with the Court must include all parties.
· Any issues arising out of this matter are to be discussed at the hearing next week.
[27] It is common ground that no notice of a substantive trial was ever issued under r 7.11 of the District Court Rules 2014.
[28] On 4 November 2022, Mr Jindal filed and served his evidence for the substantive hearing.
[29] On 7 November 2022, Mr Jindal filed submissions in support of his 11 April 2022 interlocutory application. Those submissions included:
The District Court Registry emailed stating that the 09 Nov 2022 hearing is an “interlocutory application” hearing. The sole “interlocutory” matter is a jurisdictional issue raised by the applicant. It is assumed that the issues at the 09 Nov 2022 hearing will be limited to the jurisdictional issue. …
[30] On 8 November 2022, Rice Craig filed and served its opening submissions. Shortly afterwards, Mr Jindal filed and served a memorandum asking that evidence at pages 45 to 126 of Mr Woods’ affidavit dated 19 July 2022 be ignored or struck out. Then he stated the following:
2. Lastly, the plaintiffs -as- respondents seems to be mistaken on the scope of the hearing to held tomorrow i.e., 09 Nov 2022. It is requested that the hearing be strictly confined to the interlocutory application dated 11 April 2022 for efficiency and “fair notice” purposes.
[31] When the matter was called on 9 November 2022, Judge McDonald indicated his intention to proceed with the substantive hearing. Mr Jindal objected, drawing the Judge’s attention to the written notice and Registry emails confirming the interlocutory nature of the fixture.
[32] Judge McDonald acknowledged the documents but decided to proceed. His assessment was that Mr Jindal, as a practising lawyer, was capable of proceeding. However, the Judge stated that if Mr Woods objected, then the matter would be adjourned:
Q.So why can’t we have the hearing today? You drafted it, you’ve got no further evidence you want to bring forward. If, after hearing the evidence you think there’s something that needs some leeward submissions made, I will hear your submissions that you could file written submissions after that. Look, the District Court has a huge number of cases waiting to be heard in every one of its jurisdictions, including the civil jurisdiction.
A. I understand.
Q.And I am not minded given that you are in a position in my view to argue this matter fully today to put this off to some other date sometime in the middle of late or next year for this to be heard. You filed your evidence, plaintiff has filed its evidence, now I'll hear submissions on it. And I don't consider and I rule you’re not prejudiced by that. And as I understand it you are now an admitted barrister and solicitor.
A. Correct.
…
A.I have [a practicing certificate] but I am not an employee of a law firm so I'm not taking any clients, I cannot take any clients, I, I just –
Q. But you’ve finished a law degree off.
A. Yes.
Q. And you’ve appeared in higher courts than this.
A. Yes.
Q.So you’re not a stranger to the procedure and how, and I can see this by the way that you’re conducting yourself now that you are vastly experienced or you’re experienced in this matter. The court’s time has to be used and in my view despite what the registry or a registry officer might have said to you, I consider this was set down for a full trial today and I will hear it now. This will be dependent however on Mr Woods because notice has to be given for cross-examination, I would have to waive that and if Mr Jindal wants to ask questions of you on your affidavit I would probably give him leave. If you were against that then I would have to adjourn it off.
MR WOODS:
A. I understand that, I’m not against that.
[33] Cross-examination was ordered to proceed without the advance notice required under r 9.64 of the District Court Rules. After a five-minute break, when asked whether he had had enough time to prepare for cross-examination, Mr Jindal said he had not, but that he would reluctantly proceed.
[34] The applicant advised the Court he had not previously done a cross-examination. At points during the cross-examination, Judge McDonald gave Mr Jindal guidance on the risk of opening the door to cross-examination on certain topics, not asking compound questions, not commenting on Mr Woods’ evidence, and focusing his topics of cross-examination. Judge McDonald explained that as a Judge he could ask questions in a civil case and sought the applicant’s agreement regarding the timing of his questions. Acknowledging the applicant had not expected to be examining witnesses that day, Judge McDonald also gave the applicant additional time to conduct his cross-examination.
[35] Towards the end of cross-examination, Mr Jindal sought to rely on telephone records, which Judge McDonald indicated that someone from telecoms provider 2degrees would be required to prove. The applicant sought an adjournment for the 2degrees representative to be called, which Judge McDonald refused, reiterating that the matter had been set down as a short trial, and that he would decide the case on the basis of the evidence filed and heard.
[36] Following the evidence, the applicant made legal submissions, and was granted leave to make further written submissions by 3 pm the following day, 10 November 2022.
[37] The Judge delivered his decision at 9 am on 11 November 2022, finding in favour of Rice Craig, and entering judgment for the unpaid fees, costs, and interest. The judgment includes the following statements about the conflicting evidence of the parties:
[27] Mr Jindal is adamant that no such phone call took place. Mr Jindal went further and he called Mr Woods a liar, both in his evidence before me and in his submissions filed yesterday afternoon. …
[28] I am not prepared in any way to find that Mr Woods has lied. As a Judge, I am very slow to call anyone a liar. That is, someone who has made a deliberate untruthful statement of fact. An honest witness can be mistaken. I found Mr Woods in giving evidence did so in a clear and honest manner. He set out in his affidavit and in evidence before me that he had a specific recollection of this telephone call. He also has a specific recollection as to why it was important to talk to Mr Jindal before the meeting. That is that he was being asked to provide piecemeal and selective advice. In those circumstances he would charge at an hourly rate. It is also both logical and a matter of common sense that such communication would have taken place. …
[29] Mr Jindal when giving evidence before me was at times evasive in his answers. Often, he did not answer the question that he was asked. He was fixated that his account and his account only was what was the truth. He would not even entertain that maybe on some issues he was mistaken.
[30] I bear in mind that the demeanour of the witness is a poor way of deciding who is telling the truth and that judges should be slow to use demeanour only. With that caution in mind, I find that there was communication between Mr Woods and Mr Jindal, as Mr Woods indicated. I do not accept that the evidence from 2degrees conclusively proves that there would not have been a telephone call.
[38] Following the District Court decision, Mr Jindal appealed both the substantive decision and the jurisdictional ruling. In relation to the substantive decision, the focus and first ground of appeal was that Mr Jindal was denied a fair hearing. There was also a second ground that the decision was wrong in substance. These grounds were developed in the submissions filed by Mr Jindal for the appeal hearing, including the following introductory remarks (footnotes omitted):
1. Commonly, breaches of natural justice occur in non-judicial settings i.e., disciplinary boards, committees, arbitrators, body corporates, mediators etc. making decisions without any consideration of natural justice. These ‘decision making bodies’ consist of lay members of society who are not legally and/or judicially trained. It is unique for a New Zealand Court presided by a Judge to breach natural justice principles as observed in this case.
2. This appeal concerns the ‘unfair’ and ‘tunnel visioned’ approach adopted by the District Court on 09 Nov 2022 when the following were heard by his Honour DCJ McDonald (the DC Hearing):
(a)Interlocutory Application of the appellant-as-defendant.
(b)Substantive matter filed by the respondent-as-plaintiff.
3. The District Court Registrar explicitly notified the parties, through a written email dated 03 Nov 2022 and the notices of hearing, that the DC Hearing was for an interlocutory application. There was no notice of hearing issued for the substantive matter, nor any close of pleadings date advised for it.
4. The Ld. Judge expanded the DC Hearing (which was notified as a defended interlocutory hearing) into the substantive trial while stating that the advice and emails sent by registry officers do not matter!
5. It is a reflection of our under-resourced legal justice system and errors occur in the normal course. It will be a miscarriage of justice to not prevent a litigant from being prejudiced by the errors committed at the District Court’s end. I am disadvantaged because I’ve relied upon the District Court Rules 2014, and the notices and email advice received from the District Court Registry.
6. The analysis does not require the Court to find that anyone was at fault to decide that there has been a breach of natural justice. It is simply sufficient if objectively there has been unfairness.
7. The procedural and fairness errors committed in the DC Hearing are “serious” and can only be remedied by ordering a fresh hearing. There are associated errors with fact finding and legal issues which are canvased later in these submissions.
[39] The appeal was set down for hearing in May 2023. However, on 24 April 2023, the parties filed a joint memorandum discontinuing the appeal, with no order as to costs. The applicant contends that this was not a settlement but merely a discontinuance, whereas Rice Craig asserts that it was a full and final settlement of all matters that were the subject of three proceedings. The key email on 24 April 2023 at
3.21 pm sent on behalf of Rice Craig states the following:
This is not a “preliminary proposal”.
The settlement being discussed is a full and final settlement of the three sets of proceedings you identify below on the basis that costs lie where they fall and those matters are at an end.
I confirm my instructions are that Rice Craig will not enforce the judgment debt in its favour arising from CIV-2020-055-748 and/or the costs awards in the firm’s favour in that matter and also in the High Court proceeding CIV-2022-404-1084. I understand no award of costs had been made in
the appeal currently before the High Court — i.e. CIV-2023-404-314 — and Rice Craig agrees a full and final settlement between the parties on the terms proposed means it will not seek costs against you in that proceeding.
I have amended the draft joint memorandum (marked up version attached) and signed a clean amended version. If you sign the joint memorandum you accept its terms and the proposal outlined above. Please copy me in to your email to the court when filing the signed joint memorandum.
[40] Subsequently, on 9 May 2023, a complaint was filed with the New Zealand Law Society against Mr Jindal about post-hearing events, including published assertions by Mr Jindal that Mr Woods had lied under oath. The complaint was heard by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (NZLCDT). In its decision dated 11 December 2024 (reissued 24 December 2024),3 the NZLCDT found misconduct and made the following “additional comment” at the end:
In this decision we have not addressed what is the burning issue for Mr Jindal namely his sense of injustice over the events leading to a judgment requiring he pay the fee rendered by Mr Y. This is because this is not relevant to the liability hearing. Qualities of objectivity and the ability to appreciate if not agree with an alternative view of any case are basic skills required of members of the legal profession.
Issues for determination
[41]There are three principal issues:
(a)Whether the applicant is precluded from bringing this judicial review due to his appeal and related settlement of that proceeding.
(b)If not precluded, whether the applicant’s right to natural justice was breached in the conduct of the 9 November 2022 hearing.
(c)If a breach is established, what relief (if any) should be granted.
3 Auckland Standards Committee 1 v Jindal [2024] NZLCDT 45.
Settlement/Abuse of Process
Party submissions
[42] Rice Craig relies on three grounds for submitting that the current proceeding is an abuse of process:
(a)The applicant settled the underlying District Court proceedings and the related appeal, with the terms of settlement being clear and final. The applicant is now seeking to re-litigate matters that were concluded by way of a full and final settlement. He is attempting to use judicial review as a “back-door” to challenge a decision he agreed to let stand.
(b)Rice Craig relies on the Henderson v Henderson principle and recent Court of Appeal authority4 to argue that the applicant is precluded from raising issues that could and should have been raised in the earlier proceedings, and that finality in litigation must be respected.
(c)Rice Craig also argues that judicial review proceedings can amount to an abuse of process when pursued separately and well after an appeal about the same issues has concluded. That is the case here.
[43] In contrast, the applicant contends that no valid settlement or estoppel precludes this judicial review. He argues that the District Court was not a party to any alleged settlement, and that any agreement between the parties cannot prevent judicial review against the District Court. He further submits that even if a settlement occurred, subsequent conduct by Rice Craig — specifically, reliance on the District Court decision in disciplinary proceedings — constitutes a “changed circumstance” that revives the relevance of the impugned decision and defeats any estoppel argument. The applicant also argues that estoppel has no real place in judicial review, especially where the public law doctrine of legitimate expectation is engaged, and that the High Court’s constitutional role to uphold the rule of law cannot be ousted by private settlement.
4 Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2025] NZCA 273.
Abuse of process – Henderson v Henderson principle
[44] It has long been established that an abuse of process may arise where a party in a proceeding attempts to raise an issue that could have been pursued in an earlier proceeding between the same parties on the same subject matter.5 The principle is “as applicable to judicial review as it is to general proceedings”.6
[45] Whether it does amount to an abuse of process involves a “broad, merits-based judgment” that takes account of the public and private interests involved and the facts of the case, with the crucial question being whether “in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before”.7
Judicial review and appeals
[46] The availability of other remedies, in particular a right of appeal, sometimes suggests that judicial review would be inappropriate.8
[47] In Ortmann v United States of America, the Supreme Court decided that a judicial review proceeding pursued concurrently with an appeal was not, without more, an abuse of process. However, a judicial review proceeding pursued after an appeal can be:9
[583] That is not to say that pursuit of a judicial review challenge to a decision when an appeal is also commenced will never be an abuse of process. For example, a judicial review proceeding commenced after an appeal has been unsuccessful may be an abuse of process if it simply duplicates the grounds of appeal that were rejected. But in a proceeding where the court is considering a judicial review claim at the same time as an appeal, a finding that it duplicates grounds of appeal will normally lead to the judicial review
5 At [21], referencing Henderson v Henderson (1843) 3 Hare 100 at 115, 67 ER 313 at 319 (Ch); Faloon v Planning Tribunal at Wellington [2020] NZCA 170; Broadspectrum (New Zealand) Ltd v Nathan [2017] NZCA 434; and Beattie v Premier Events Group Ltd [2014] NZCA 184, [2015] NZAR 1413.
6 Dotcom v District Court at North Shore [2018] NZCA 442, [2018] NZAR 1859 at [34].
7 Deliu v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 4, at [22], citing
Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (HL) at [31].
8 Laura O’Gorman (ed) Sim’s Court Practice (online ed, LexisNexis) at [JRPIntro.4(c)], [JRP16.6] and [JRP18.4(b)]; and Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [JR16.02(5)], citing Fraser v State Services Commission [1984] 1 NZLR 116 (CA) at 123.
9 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475.
claim being dismissed or relief being refused, rather than the claim being labelled an abuse of process.
[48] In AFFCO New Zealand Ltd v Employment Court, the New Zealand Meat Workers and Related Trades Union Inc (the Union) issued proceedings against AFFCO New Zealand Ltd (Affco) in the Employment Court in relation to a dispute about individual employment agreements offered to workers previously covered by a collective agreement involving the Union.10 After a hearing, the Employment Court ruled against Affco. Affco was granted leave to appeal to the Court of Appeal on three questions of law but denied leave on the fourth ground of breach of natural justice. Affco subsequently applied for judicial review in the Court of Appeal, under s 213 of the Employment Relations Act 2000. The Union applied to strike out the judicial review proceedings on the basis that the proceedings were prohibited by a privative clause in s 193. The Court of Appeal agreed that its jurisdiction was so ousted, but observed that they would also have struck it out as an abuse of process anyway for two main reasons:
(a)The fact the proceedings were not brought at the same time as the appeal and sought to raise the same issues on which leave was declined, undermined the administration of justice and the principle of finality. It has also resulted in a separate proceeding running in tandem with a Supreme Court appeal addressing the same dispute.
(b)If there were any breaches of natural justice in the Employment Court, they had been cured by the hearing of the appeal.
[49] In Wislang v Medical Council of New Zealand, the Court of Appeal expressed the view that an applicant who took the opportunity of appealing and lost should not be permitted to contest the same matters on review:11
10 AFFCO New Zealand Ltd v Employment Court [2017] NZCA 123, [2017] 3 NZLR 603.
11 Wislang v Medical Council of New Zealand [2002] NZAR 573 (CA) at [32], aff’d [2005] NZAR 670 (PC). Lord Brown said at [28]: “To succeed in such a challenge after an unsuccessful (though properly conducted) appeal is almost inconceivable”; and at [29] “This whole challenge has been from first to last misconceived. It is regrettable that it was ever the subject of judicial review, let alone appeal to the Board”.
This is par excellence the stuff of general appeals, not judicial review. Still less is it arguable that having had and taken his opportunity of appealing, Dr Wislang should now be permitted to contest such matters by an alternative legal process.
[50] In Faloon v Planning Tribunal at Wellington, the Court of Appeal said that the applicant “has already exhausted his appeal rights against that judgment. He may not now go round the back and attempt re-entry through the tradesman’s entrance of judicial review”.12
[51] Relatedly, the result achieved in an appeal proceeding may make any assessment of the same subject matter in a judicial review proceeding moot.13
[52] The Henderson v Henderson principle applies not only when a case was determined by judgment but also when it was settled.14 Also, there is no requirement of absolute identity of parties.15
Analysis
[53] To determine whether this judicial review proceeding is an abuse of process, it is necessary to assess the full context, rather than separately determine the three issues referred to in para [42].
[54] I accept that the allegations in this judicial review proceeding were advanced (or could have been advanced) in the appeal that Mr Jindal brought against the judgment dated 11 November 2022. That much is clear from the submissions that Mr Jindal filed in the appeal. The types of procedure and fairness complaints that he makes are routinely pursued in appeals,16 consistent with the rationale that it is usually appropriate for interlocutory and procedural rulings to be challenged on appeal along
12 Faloon v Planning Tribunal at Wellington, above n 5, at [17].
13 N R v District Court at Auckland [2014] NZHC 1767 at [132]–[133], referencing Fowler v Rodrique Ltd v Attorney-General [1987] 2 NZLR 56 (CA) at 78; and Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 (HC). The High Court was overturned by N R v District Court at Auckland [2016] NZCA 429, [2016] NZFLR 775 but without disturbing this reasoning: see at [67].
14 Commissioner of Inland Revenue v Bhanabhai [2007] 2 NZLR 478 (CA) at [61].
15 At [61], citing Johnson v Gore Wood & Co (a firm), above n 7, at 526.
16 Bevan-Smith v Reed Publishing (NZ) Ltd (2006) 18 PRNZ 310 (CA) at [27].
with the substantive issues.17 That is par excellence the stuff of general appeals, not judicial review.
[55] It is also clear that Mr Jindal entered into a full and final settlement of those matters on the terms set out in the email on 24 April 2023 at 3.21 pm quoted at para [39] above. By signing and filing the joint memorandum discontinuing the appeal, he accepted those terms. That constituted a full and final settlement of the subject matter in those three sets of proceedings, meaning those matters were at an end. That includes the judgment debt and costs awards, which Rice Craig agreed not to enforce. Any argument that the judgment could have been set aside is now moot because the settlement means those monetary amounts are not enforceable anyway.
[56] If Mr Jindal wished to maintain his position that the judgment was unfair, or there had been breaches of natural justice, or wrong conclusions about the credibility of witness evidence, then he should not have settled those matters. The settlement and related discontinuance now preclude those issues from being determined by this Court. Not only would that breach the settlement agreement with Rice Craig, but it would also waste Court resources contrary to the public interest. The present claim falls within the Henderson v Henderson principle because Mr Jindal is seeking to undermine the finality of litigation that he settled. He is seeking to pursue a judicial review well after his appeal concluded, as an attempt at re-entry through the tradesman’s entrance using an alternative legal process. It is exactly this type of behaviour that is captured by the Henderson v Henderson principle, and which the Court recognises can amount to an abuse of process.
[57] It is no answer to say that the first respondent is the District Court and it was not a party to the settlement. Conventionally the District Court takes no active part in such a judicial review. Rice Craig is the proper respondent taking the active opposing role. Accordingly, there is sufficient identity of interest, and Rice Craig is entitled to enforce the settlement.
17 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [32], citing Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [14].
[58] Nor do I accept the argument that making a professional conduct complaint undermined the settlement. I consider that any agreement seeking to prohibit lawyers from complying with their mandatory reporting obligations18 is unenforceable as a matter of public policy.19 Indeed Mr Jindal accepted that his settlement did not purport to preclude the complaint being made. Furthermore, when he agreed to the settlement, he had already started publishing his flyers about the trial, so it was his decision at that time whether to maintain his appeal so he might vindicate his statements through a court determination. Otherwise, he is required to accept the consequences of the settlement he agreed to.
[59] For completeness, Mr Jindal has not satisfied me that the NZLCDT liability findings resulted from his inability to set aside the District Court decision anyway. To the contrary, the NZLCDT said that those issues were irrelevant (see para [40] above), because its focus was instead on Mr Jindal’s inability to appreciate, if not agree, with any alternative view of his case.
[60] For the above reasons, I accept that this judicial review proceeding constitutes an abuse of process and should not have been commenced or pursued. This outcome does not cause any unfair prejudice or injustice to Mr Jindal. To the contrary, the interests of justice require the proceeding to be dismissed as an abuse of process.
[61] Based on this finding, it is unnecessary to determine the next question of whether there was a breach of natural justice in the District Court. I nevertheless address that issue in the next section.
18 Such as the mandatory obligation under r 2.8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 to make a confidential report to the Law Society at the earliest opportunity when a lawyer has reasonable grounds to suspect that another lawyer may have engaged in misconduct.
19 See the analogous principles about stifling prosecutions in Polymer Developments Group Ltd v Tilialo [2002] 3 NZLR 258 (HC) at [61]–[74]; and Osborne v Worksafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447 at [73]–[76].
Alleged breach of natural justice
Party submissions
[62] The applicant submits that the District Court hearing was fundamentally unfair. He points to written confirmation from the Registry that the 9 November 2022 hearing was to be interlocutory only, the absence of proper notice for a substantive trial under the District Court Rules, and the lack of notice for cross-examination. He further alleges that Judge McDonald’s conduct — proceeding with the substantive hearing despite the applicant’s objections, making the decision to proceed contingent on the consent of the opposing party, and making dismissive remarks — demonstrated bias and a disregard for procedural fairness. The applicant relies on authorities establishing the irreducible minimum standards of justice and argues that the breaches were so egregious as to render the decision a nullity.20
[63] Rice Craig abides the Court’s decision on the natural justice issue but notes that the applicant was present at the hearing, had filed evidence, and was given the opportunity to cross-examine and make submissions. Rice Craig submits that any procedural irregularity was addressed by the Judge’s accommodations and that the applicant was not prejudiced in a way that would justify setting aside the decision.
[64] Counsel assisting acknowledges that the Registry erred in advising the applicant as to the nature of the hearing but submits that it is not clear this resulted in a breach of natural justice sufficient to render the 11 November 2022 decision a nullity. Counsel notes that the District Court Rules and statutory context allow for flexibility and that Judge McDonald made accommodations for the applicant, including allowing additional time and further submissions. Counsel also addresses the applicant’s allegations of bias, concluding that the Judge’s conduct would not lead a fair-minded observer to apprehend bias. Overall, counsel assisting submits that the procedural breach was not so “obvious and egregious” as to require the decision to be set aside.
20 Ben Nevis Forestry Ventures Ltd v CIR [2013] NZHC 2361, (2013) 26 NZTC 21-032 at [49]; and
R v Smith [2003] 3 NZLR 617 at [58].
Natural justice principles
[65] Section 27(1) of NZBORA provides that every person has the right to observance of natural justice principles by any tribunal with power to make determinations affecting their rights, obligations, or interests.
[66] In Trustees of Rotoaira Forest Trust v Attorney-General, Fisher J noted the basic requirements for a fair arbitration hearing were:21
(a)fair notice of the hearing;22
(b)a reasonable opportunity to be present with advisers and witnesses;
(c)a reasonable opportunity to present evidence and argument;
(d)reasonable opportunity to test the opponent’s case by cross-examination, rebuttal evidence and argument; and
(e)unless otherwise agreed, the parties must present the whole of their evidence and argument at the hearing.
[67] However, natural justice’s requirements are “flexible, and vary depending on the circumstances”, for consideration “in light of the relevant statutory provisions [and] consistent[ly] with the purposes of the legislation”.23 The question is what form of procedure is necessary to achieve justice without frustrating the apparent purpose of the legislation.24 For example, in High Court proceedings for judicial review,
21 Trustees of Rotoaira Forest Trust v Attorney-General [1999] 2 NZLR 452 (HC) at 459.
22 See also Martin v Ryan [1990] 2 NZLR 209 (HC) at 227; and Ali v Deportation Review Tribunal
[1997] NZAR 208 (HC) at 220.
23 Kaimai Properties Ltd v R Elizabeth the Second National Trust [2024] NZCA 616 at [51], citing Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132; Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [11]; Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141; and Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
24 Dotcom v United States of America, above n 23, at [120], citing Daganayasi v Minister of Immigration, above n 23, at 141; and Wyeth (NZ) Ltd v Ancare New Zealand Ltd [2010] NZSC 6, [2010] 3 NZLR 569 at [40]. See also Greenpeace Aotearoa Inc v Hiringa Energy Ltd [2023] NZCA 672, [2023] NZRMA 93 at [211].
summary judgment and to determine originating applications, cross-examination is not usually permitted.
[68] The objective of the District Court Rules is “to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”.25
[69] Section 117 of the District Court Act 2016 provides that “[a] technical defect or an irregularity does not invalidate a judgment, an order, or a proceeding.”
[70] Rule 1.8(1) provides that a failure to comply with the requirements of the Rules:
(a)must be treated as an irregularity; and
(b)does not nullify—
(i)the proceeding; or
(ii)any step taken in the proceeding; or
(iii)any document, judgment, or order in the proceeding.
[71] Rule 1.8(2)(b) provides that, where there has been a failure to comply with the Rules, the court may “exercise its powers under these rules to allow any amendments to be made and to make any order dealing with the proceeding generally as it thinks just”.
[72]As Wylie J observed (in respect of the previous District Court Rules):26
… the District Court Rules are not a straightjacket. The fact that the rules have not been fully complied with does not of itself invalidate the proceeding or any step taken in the proceeding.
Analysis
[73] I do not accept that there was any breach of Mr Jindal’s fair trial or natural justice rights on the facts of this case, including those protected by s 27 of NZBORA.
25 District Court Rules 2014, r 1.3.
26 Jin v North Shore District Court [2013] NZHC 243 at [110] (footnote omitted).
[74] It is common ground that Registry staff mistakenly issued notices and emails referring to the backup fixture and then the firm fixture as being for an interlocutory hearing, rather than the substantive matters.
[75]However, it is inconceivable that Mr Jindal did not appreciate the true position:
(a)As explained in his email at 2.18 pm on 3 November 2022, he knew there was no relevant interlocutory application to be heard. The only interlocutory application was his challenge to jurisdiction which had already been determined in both the District Court and the High Court.27
(b)Mr Jindal knew the upcoming hearing was for the substantive fixture, which is why he applied several times (unsuccessfully) for that to be adjourned (emphasis added):
(i)His memorandum dated 28 August 2022 referred to it being unfair for “the substantive matter to proceed”.
(ii)His memorandum dated 30 August 2022 asked the District Court to “hold back from hearing the substantive matter on 20 September 2022”.
(iii)His memorandum dated 25 October 2022 again submitted it would be prejudicial and unreasonable “for the hearing of the substantive matter to proceed”.
(iv)The Court minute conveyed in the email dated 3 November 2022 at 4.24 pm was adequately clear that his above applications to adjourn the substantive hearing were refused. Mr Jindal acknowledged this before Judge McDonald when he
27 Rule 7.44 of the District Court Rules prevents a party who failed on an interlocutory application from applying again for the same or a similar order without first obtaining the leave of a Judge. The equivalent in the High Court Rules 2016 is r 7.52.
said: “I think what the minute of Judge Dawson was, was to set the matter up for a trial …”.
[76] Accordingly, I find on the evidence that Mr Jindal was given advance notice of the hearing, and he knew that the Judges had declined his adjournment applications and instead ordered that the substantive matter would proceed on the scheduled hearing date (initially a backup fixture in September, then the firm fixture date of 9 November 2022). This also explains why Mr Jindal filed and served his substantive evidence on 4 November 2022, before that fixture.
[77]I find that the Registry errors, while unfortunate:
(a)could not reasonably have caused any confusion or doubt in the circumstances; and
(b)did not actually cause Mr Jindal to think that the substantive hearing had been adjourned. He merely hoped to take advantage of these Registry errors to achieve his desired adjournment through another means.
[78] The other common features of a fair hearing were also properly provided on the facts:
(a)Reasonable opportunity to be present with advisers and witnesses: Mr Jindal was present. He chose to be self-represented, with no other legal adviser. He was the only relevant witness for the defence. By 4 November 2022, Mr Jindal had already filed his evidence, which did not include any affidavit evidence from any 2degrees employee. Although an issue arose during the hearing about whether he needed a 2degrees witness to produce the phone records (see para [35]), the Judge ultimately had regard to those records anyway (in other words, treated them as admissible) but simply did not find that evidence
conclusive (see para [37]). No procedural unfairness arises on this aspect.
(b)Reasonable opportunity to present evidence and argument: Mr Jindal was given a reasonable opportunity to present his evidence and arguments. His evidence was already finalised, given that it had been filed and served on 4 November 2022. When he said he had not prepared properly for his contractual arguments (despite him referring to a specific case at the hearing), Mr Jindal was given leave to file written submissions the following day. The hearing did not involve complex factual or legal questions, being a dispute about liability for
$999.81.
(c)Reasonable opportunity to test the opponent’s case by cross-examination, rebuttal evidence and argument: Mr Jindal had Mr Woods’ evidence since July 2022 and he had filed and served his rebuttal evidence by 4 November 2022 (with the cover page recording the next event date of 9 November 2022). Rule 9.64 provides that a party wishing to cross-examine a deponent must serve a notice three working days before trial. Technically, both parties should have served such notices if they wanted to test the evidence in that way. Doing so is not required. In any event, both witnesses were at the hearing and available for cross-examination, and (to his advantage) Mr Jindal was given a reasonable opportunity to test his opponent’s case by cross-examination. The factual issues in dispute were narrow,28 focusing on the length and nature of the meeting on 14 February 2020, the significance of the terms of engagement being sent around three hours beforehand, and one person’s word against another about whether a phone conversation occurred on 13 February 2020 (and if so, what was discussed). Even if Mr Jindal chose not to prepare his cross-examination before the hearing, he knew the issues well from
28 As opposed to assessing the objective meaning of documents (including emails), which is fundamentally a question of law for the Judge: see Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [20].
preparing his rebuttal evidence, and he was given extra time and assistance by the Judge.
[79] As summarised above, Mr Jindal was afforded full fair hearing rights, and the decision to waive r 9.64 was fair and sensible in the circumstances, consistent with the just, speedy and inexpensive determination of a dispute of that size. I agree with the Judge’s assessment that the decision to proceed did not prejudice Mr Jindal. Indeed, I cannot see any reason for believing that the results of cross-examination might have differed if further preparation time had been given.
[80] Mr Jindal also referred to other matters to support his allegation of judicial bias:
(a)the fact that Judge McDonald premised the decision to proceed on Mr Woods’ consent, but not the applicant’s consent;
(b)the Judge referring to his own commitments and judicial workloads;
(c)the Judge’s statement to the applicant that “I don’t care…”;
(d)prohibiting notes to be taken of the hearing; and
(e)interjections by the Judge during the hearing.
[81] The test for apparent bias, as set out by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.29
[82] I do not accept that any concerns of bias would arise for the fair-minded lay observer:
29 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
(a)The Judge’s statement that progression of the hearing was contingent on Mr Woods waiving his r 9.64 rights supported rather than undermined Mr Jindal’s fair trial entitlement as it allowed Mr Jindal to exercise his right to cross-examine. It was also appropriate to confirm Mr Woods’ understanding and expectation that the substantive hearing had been set down for hearing and was ready to proceed (namely, that it was only Mr Jindal that alleged confusion).
(b)The Judge’s concern regarding the “huge number of cases waiting to be heard” by the District Court, and the need to use Court time efficiently were proper considerations under r 1.3.
(c)When Mr Jindal asserted that the proceeding was a “charade”, the Judge said: “I don’t care that you’re a barrister or solicitor or not, but you will treat me with respect”, so the complaint about those words is taken out of context.
(d)It is traditional that leave is required before notes may be taken by people other than counsel or the participating lay litigant — this issue was not raised in the pleadings in this proceeding, and in any event did not impact on the fairness of the District Court hearing or subsequent steps, given that a full transcript has been made available post-hearing (as the Judge said would be the case); and
(e)far from “entering the fray” in any adversarial sense,30 the interjections by the Judge were appropriate to assist Mr Jindal as a self-represented litigant and to ensure a fair process.
[83] In summary, Mr Jindal has failed to establish any breach of his fair trial or natural justice rights, including those protected by s 27 of NZBORA. Nor is there any basis for any allegation of apparent bias.
30 W v W [2023] NZHC 3491, [2023] NZFLR 782 at [110].
Relief
Party submissions
[84] The applicant seeks declaratory relief that his rights under s 27(1) of NZBORA were breached and that the District Court decision is a nullity. He also seeks a token award of $1 in NZBORA damages to mark the seriousness of the breach and deter repetition, arguing that the relief is necessary to prevent ongoing prejudice and contamination of downstream proceedings, including disciplinary matters where the impugned decision has been relied upon.
[85] Rice Craig submits that, even if a breach were found, the applicant would derive little tangible benefit from relief, as the underlying matters have been settled and no practical consequences would follow from a declaration. It argues that the proceeding is an abuse of process and that relief should be refused on discretionary grounds.
[86] Counsel assisting submits that relief in judicial review is discretionary and that delay, withdrawal of the earlier appeal, and the applicant’s conduct all tell against the grant of relief. If relief is considered appropriate, counsel submits that a declaration (rather than damages) would be the appropriate remedy, but that this is not an exceptional case justifying monetary compensation.
Analysis
[87] In Attorney-General v Parore, the Court of Appeal held that damages can be available for a breach of fair trial rights.31 However, for damages to be available, other remedies would have to be insufficient to vindicate the relevant right, appropriately and proportionately, in the circumstances.32
[88] Given my findings on abuse of process and my rejection of Mr Jindal’s allegation of unfairness and breach of natural justice, no question of relief arises. In any case, many of the same principles would apply. In particular, Mr Jindal’s appeal
31 Attorney-General v Parore [2025] NZCA 328 at [80].
32 At [83].
was the appropriate vehicle for vindicating his fairness and procedure complaints. Such complaints can no longer be pursued in court proceedings because he chose to achieve finality through settlement.
[89] I do not accept that the NZLCDT liability findings resulted from Mr Jindal’s inability to set aside the District Court decision anyway. That was focused on Mr Jindal’s post-hearing conduct which is a problem of his own making. Mr Jindal cannot seek to benefit from his own wrong to undermine the settlement and reopen matters that are now moot.
Result
[90]I decline the application for judicial review.
[91] If costs cannot be agreed, the respondents may file memoranda within 10 working days, and Mr Jindal’s memorandum will be due 10 working days later. I will determine costs on the papers.
O’Gorman J
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