Khatri v Tomar
[2021] NZHC 3091
•18 November 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001138
[2021] NZHC 3091
UNDER the Senior Courts Act 2016 IN THE MATTER OF
Section 166 orders
BETWEEN
MONIKA KHATRI
ApplicantAND
VIN TOMAR
Respondent
Hearing: 1 November 2021 Appearances (via VMR):
Applicant in person Respondent in person
SP Jerebine counsel assisting the Court
Judgment:
18 November 2021
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 18 November 2021 at 11 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
SP Jerebine, Auckland.
Copy to: Applicant and Respondent.
KHATRI v TOMAR [2021] NZHC 3091 [18 November 2021]
Is enough, enough?
[1] Monika Khatri was successful in the Family Court against her former husband, Vin Tomar. Mr Tomar was, at best, an especially difficult defendant. He filed dozens of meritless applications, which took time, money and effort to resist. Mr Tomar also brought three unsuccessful appeals to this Court. Related litigation is ongoing.
[2] Ms Khatri has had enough. She seeks an order banning Mr Tomar from commencing or continuing any civil proceedings against her. The applicable statute requires the person to be banned to have commenced or continued at least two or more totally unmeritorious proceedings. The primary question is whether Mr Tomar’s applications—all of which were brought in the context of litigation instigated by Ms Khatri—constitute “proceedings commenced or continued” by Mr Tomar. Ms Khatri is self-represented. So too Mr Tomar. Unsurprisingly, neither could add much to this question.
The background
[3]Ms Khatri and Mr Tomar married 27 April 2008. They have one son.
[4] Ms Khatri left Mr Tomar 12 December 2016. On the same day, Ms Khatri sought and obtained a temporary protection order; interim parenting order; and ancillary furniture order. Ms Khatri moved to Hamilton with their son. Mr Tomar remained in Auckland.
[5] On 11 August 2017, Judge D R Brown discharged the temporary protection order and made a final protection order.1
[6]On 13 December 2017, Ms Khatri applied for division of relationship property.
[7]On 21 May 2019, Mr Tomar applied for a parenting order in his favour.
[8] Judge A J Twaddle addressed this and other applications in a four-day hearing beginning 18 February 2020. On 19 March 2020, the Judge discharged the interim
1 Tomar v Tomar [2017] NZFC 6328.
parenting order and made a final parenting order. He held the son should remain in Ms Khatri’s daily care with Mr Tomar having contact at weekends and holidays.2 The Judge dismissed an application by Mr Tomar to discharge the protection order.
[9] On 20 March 2020, Judge D A Burns heard Ms Khatri’s application concerning relationship property. On 22 May 20203 and 20 May 2021,4 the Judge found largely in her favour.
[10] Mr Tomar appealed Judge Twaddle’s decision and both decisions of Judge Burns. Campbell J dismissed the former 27 May 2021.5 Lang J dismissed the other appeals 10 September 2021.6
[11] This précis omits Mr Tomar’s many unsuccessful applications to the Family Court, which would overwhelm any chronology. Indeed, Ms Khatri says these now total 88. I give some examples; they are only that.
[12] Mr Tomar filed applications to discharge or rescind the protection order 30 June 2017; 29 December 2017; 8 January 2018; 9 January 2018; 24 June 2019; 11 November 2019; 27 August 2020; and 14 September 2020.7 All were unsuccessful, and some dismissed as an abuse of process. Judge R H Riddell considered a protection order would be needed for “a long, long” time given Mr Tomar’s “obsessive behaviour”.8 Judge Twaddle found there was “a high risk of … psychological abuse of Ms [Khatri] by Mr Tomar if the protection order is discharged”.9 Campbell J said Judge Twaddle’s decision was “entirely correct”.10
[13] Mr Tomar filed many applications to adjourn or vacate hearings. For example, he twice applied to adjourn the four-day hearing before Judge Twaddle in the week before that hearing. Both applications were dismissed. Mr Tomar sought an
2 Tomar v Tomar [2020] NZFC 1433.
3 Tomar v Tomar [2020] NZFC 2960.
4 Tomar v Tomar [2021] NZFC 4666.
5 Thomas v Kane [2021] NZHC 1211. Campbell J used fictitious names with the parties’ consent.
6 Tomar v Tomar [2021] NZHC 2353.
7 The list may be incomplete. There is no chronology, agreed or otherwise.
8 Tomar v Tomar FC Morrinsville FAM-2016-039-92, 19 July 2018 (Minute of Judge R H Riddell) at [17].
9 Tomar v Tomar, above n 2, at [57(j)].
10 Tomar v Tomar, above n 5, at [72].
adjournment of the relationship property hearing before Judge Burns on the morning of that hearing. Mr Tomar alleged his lawyer had “failed to inform him of what has been happening”.11 The Judge dismissed the application.
[14] Mr Tomar also filed applications for re-hearings. For example, in April or May 2020, he applied for a re-hearing of the matters before Judge Twaddle. As Mr Tomar had already filed appeals against all the orders, the Judge dismissed the application as “an abuse of process”.12 On 9 September 2020, Mr Tomar again applied for a re-hearing. Judge Twaddle dismissed the application as an abuse.13
[15] Mr Tomar used frequent changes in representation as a fulcrum for delay, by seeking extensions or adjournments. Mr Tomar had no fewer than six lawyers throughout: Matthew Wright; Naomi Cramer; Elise McCabe; Trent Bowler; Michael Headifen and Peter McCutcheon.
[16] Unsurprisingly, these and other tactics resulted in adverse costs orders, including increased and indemnity costs. Judge Twaddle said “Mr Tomar’s stance on some of the issues was unreasonable and completely lacked merit … an award of indemnity costs is appropriate”.14 Gordon J—who dealt with Mr Tomar’s application for an adjournment of the relationship property appeals ultimately heard by Lang J— noted Mr Tomar had “taken many unnecessary steps”.15 This included “filing … multiple amended notices of appeal” and ignoring an order of the Court “not to file any further applications … without leave of the Court”.16 Gordon J increased costs by 40 per cent. Campbell J also increased costs by this amount. He said the procedural history of the appeal did “not make for happy reading” and Mr Tomar’s appeal “lacked any merit”.17
11 Tomar v Tomar FC Auckland FAM-2018-004-53, 20 March 2020 (Minute of Judge D A Burns) at [5].
12 Tomar v Tomar FC Hamilton FAM-2016-039-93, 14 May 2020 (Minute of Judge A J Twaddle).
13 Tomar v Tomar FC Hamilton FAM-2016-039-93, 9 September 2020 (Memorandum of Judge A J Twaddle).
14 Tomar v Tomar [2020] NZFC 4721 at [15].
15 Tomar v Tomar [2021] NZHC 1437 at [16].
16 At [16].
17 Thomas v Kane [2021] NZHC 1579 at [7]. Campbell J continued to adopt these pseudonyms.
[17] Mr Tomar continues to challenge the decisions of the Family Court through four separate applications for judicial review.18 All are yet to be heard. Mr Tomar has also filed an application to have Ms Khatri banned from commencing or continuing civil proceedings.
Some history concerning Ms Khatri’s application to ban Mr Tomar
[18] Ms Khatri filed the application 28 June 2021 and sought substituted service (of Mr Tomar) by email. Jagose J granted substituted service two days later. Mr Tomar applied to “rescind” substituted service, but then told Fitzgerald J his real objection was that he was not heard by Jagose J about service. Mr Tomar filed a notice of opposition to the application. Mr Tomar also applied to “strike out” the application. Fitzgerald J fixed 22 October 2021 as the hearing, and appointed counsel to assist the Court.
[19] On 10 August 2021, Mr Tomar applied for an order consolidating his judicial review claims with Ms Khatri’s application. This would have necessitated an adjournment of Ms Khatri’s application. Mr Tomar then offered to withdraw his challenge to substituted service if consolidation were granted. Robinson J dismissed Mr Tomar’s consolidation application and substituted service challenge 23 August 2021.19
[20] On 11 October 2021, Mr Tomar filed an “Application for Stay Order, Adjournment Order and Interlocutory Relief”. In substance, Mr Tomar sought an adjournment of Ms Khatri’s application until his judicial review claims had been determined. In other words, Mr Tomar sought to revisit Robinson J’s decision. Gault J dismissed the application 13 October 2021.20 Mr Tomar then sought permission to appeal, which Gault J declined.21
[21] On 22 October 2021, Peters J granted Mr Tomar a 10-day adjournment as he said his computer was not working. The Judge made the adjournment conditional on
18 Jagose J is managing these cases.
19 Khatri v Tomar [2021] NZHC 2180.
20 Khatri v Tomar [2021] NZHC 2735.
21 Khatri v Tomar HC Auckland CIV-2021-404-1138, 15 October 2021 (Minute of Gault J).
an undertaking Mr Tomar appear at the hearing.22 Mr Tomar gave that undertaking only after encouragement from the Judge.23
[22] On 26 October 2021, Mr Tomar filed yet another application to consolidate his judicial review claims with Ms Khatri’s application. I dismissed the application and reminded Mr Tomar of his recent undertaking.24
[23] This history mirrors, albeit on a much smaller scale, what happened in the Family Court in relation to Ms Khatri’s proceedings. Rather than addressing the merits, Mr Tomar brought needless, meritless applications; including applications for adjournments; relitigated points determined against him, as if rulings were not binding; and in turn, caused unnecessary expense and delay.
The application to ban Mr Tomar
Ms Khatri prepared the application herself. It reads:
This document notifies you that:
1 The applicant, Monika Khatri, will on 28 June 2021 apply to the court for orders:
That Vin Tomar be declared a Vexatious litigant;
·An extended order restraining the Defendant, Vin Tomar from commencing or continuing civil proceedings in any Court (Family Court, High Court, Court of Appeal) in Family Violence Act, Care of Children Act or Relationship Property matters for an extended period of 5 years as exceptional circumstances apply;
·An Order for Security for Costs for a sum of $10,000 to be paid before the hearing; and
·An Order for Costs including incidentals for filing this application at the conclusion of this application.
2 The grounds on which each order is sought are as follows:
·The Defendant, Vin Tomar has filed over 55 groundless applications in various courts abusing the court process.
22 Khatri v Tomar HC Auckland CIV-2021-404-1138, 21 October 2021 (Minute Nos 1–4 of Peters J); and 22 October 2021 (Minute No 5 of Peters J).
23 The number of minutes issued by Peters J is illustrative of this.
24 Khatri v Tomar HC Auckland CIV-2021-404-1138, 29 October 2021 (Minute (No 1) of Downs J).
·Family Court Judge Burns has granted me leave to apply to get the Defendant declared a Vexatious litigant in paragraph 16 of his Judgment dated 20 May 2021 (Exhibit AR of my affidavit affirmed on 23 June 2021).
3 The application is made on reliance on: Section 166 of Senior Courts Act 2016 I refer to my attach [sic] affidavit.
[25] The application does not identify the two or more totally unmeritorious proceedings commenced or continued by Mr Tomar (beyond the broad reference to “over 55 groundless applications in various courts abusing the court process”).
The all-important statutory context
[26] A High Court Judge may make an order restricting a person from commencing or continuing a civil proceeding.25 Such a ban may have a limited; extended; or general effect.26 Ms Khatri seeks an extended ban. This would prevent Mr Tomar from commencing or continuing civil proceedings on “a particular or related matter” in a senior court, another court, or tribunal.27 A ban normally lasts three years. A High Court Judge may specify a longer ban (not exceeding five years) if satisfied exceptional circumstances justify it.28 Ms Khatri argues they do.
[27]The key provision is s 167 of the Senior Courts Act 2016, which reads:
167 Grounds for making section 166 order
(1) A Judge may make a limited order under section 166 if, in civil proceedings about the same matter in any court or tribunal, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.
(2) A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(3) A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
25 Senior Courts Act 2016, s 166(1).
26 Section 166(2).
27 Section 166(4).
28 Section 168(2).
(4) In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.
(5) The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
(6) For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
[28] The Court of Appeal in Mawhinney v Auckland Council recently analysed this section and attendant history;29 analysis I do not repeat. It is sufficient to make three points. First, the person to be banned, whom for ease of reference I call the defendant, must have commenced or continued at least two proceedings that are or were totally without merit.
[29] Second, earlier law did not permit a ban to be based on interlocutory applications. These were not treated as “proceedings” commenced by the defendant.30 Section 167 adopts the same approach with a qualification: the Judge may take into account the nature of any interlocutory applications involving the defendant in determining whether the proceedings are or were totally without merit; see s 167(4). But again, the ban must not be based on interlocutory applications. This follows from the statutory language and the nature of an interlocutory application. The totally unmeritorious proceedings must be “proceedings commenced or continued” by the defendant. An interlocutory application does not commence proceedings of any type. Rather, and as s 4(1) of the Senior Courts Act makes clear, an interlocutory application means:31
interlocutory application—
(a) means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—
(i)an order or a direction relating to a matter of procedure; or
29 Mawhinney v Auckland Council [2012] NZCA 144.
30 See for example Attorney-General v Collier [2001] NZAR 137 (HC) at [31].
31 The Senior Courts Act does not define “proceedings”. Nor does the Interpretation Act 1999. In contrast see s 13 of the Legislation Act 2019 in relation to the term “proceeding” (singular).
(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and
(b) includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies
[30] This conclusion is consistent with legislative history: while the Law Commission recommended interlocutory applications be able to be taken into account in determining a ban, the Commission did not recommend such applications be able to found a ban.32 Section 167 recognises this distinction. The conclusion is also consistent with the conservative approach to bans of this nature, given their “drastic restriction of … civil rights”.33
[31] I acknowledge an argument interlocutory applications brought by a defendant could be a continuation of proceedings instituted by the plaintiff, hence qualifying as “proceedings … continued” by the defendant. However, this argument is inconsistent with the points above. Moreover, it is unlikely such a significant change would be the product of subtle language, particularly as the Law Commission did not recommend this change.
[32] Another problem arises too. If proceedings brought by a plaintiff qualify on the basis the defendant’s interlocutory applications continue the proceedings, conceptual difficulties arise in determining whether the proceedings are or were totally without merit. The instant case is illustrative. Ms Khatri brought three proceedings against Mr Tomar: (a) for a protection order; (b) for parenting orders; and (c) for orders concerning relationship property. Ms Khatri succeeded in all because, obviously, all had merit. So, how then do Mr Tomar’s interlocutory applications—assuming this is what they were—make Ms Khatri’s proceedings totally without merit? The problem exposes what is implicit to the argument: it presupposes different statutory language to that used by Parliament.34
32 Law Commission Review of the Judicature Act 1908 – Towards a New Courts Act (NZLC R126, 2012) at [16.23]-[16.24].
33 Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865.
34 I suspect the phrase “or continued by the party to be restrained” was intended to capture the scenario in which a (cunning) vexatious litigant has another person commence the proceedings; later joins the proceedings himself or herself; only for the commencing party to then drop away. But for the phrase “or continued by the party to be restrained”, it is not clear s 167 would extend to this scenario.
[33] Third, s 167(6) specifically precludes an appeal in a civil proceeding from being treated as a distinct proceeding. This is important because the original submissions of counsel assisting assumed Mr Tomar’s three High Court appeals constituted the totally unmeritorious proceedings commenced or continued by Mr Tomar. As observed, s 167(6) precludes this.
[34] All this means Ms Khatri must identify at least two proceedings commenced or continued by Mr Tomar that are or were totally without merit, and these proceedings cannot be interlocutory applications or the (three) High Court appeals.
Has Mr Tomar commenced or continued at least two proceedings (totally without merit)?
[35] Ms Khatri says yes. She identifies what she calls “a platter” of candidates, all of which Ms Khatri cited orally at the hearing. The platter includes Mr Tomar’s as yet undetermined application to ban Ms Khatri from commencing or continuing civil proceedings. There is no doubt that application constitutes “proceedings” totally without merit. This must be so as a matter of logic, for, Ms Khatri was successful throughout in the Family Court and the High Court dismissed Mr Tomar’s related appeals. Moreover, Mr Tomar filed this application after Ms Khatri filed her ban application. So, prima facie, Mr Tomar’s application is retaliatory and an abuse of process.
[36] Ms Khatri next relies on Mr Tomar’s four separate applications for judicial review of the Family Court. Clearly, each constitutes “proceedings”. However, it would be wrong to conclude the judicial review proceedings are totally without merit—even though they may well be—because: (a) Mr Tomar repeatedly applied to consolidate these proceedings with the ban application; and (b) this Court repeatedly rejected Mr Tomar’s attempts at consolidation. In other words, to conclude these proceedings are totally without merit would be to decide them at this hearing even though this Court has essentially held such a determination should await the ban application.
[37] This leaves the many applications Mr Tomar brought in the Family Court. From these, Ms Khatri helpfully selects 18, which she divides into four groups.
[38] The first group arose in the relationship property proceedings. Judge Burns summarised it this way:35
Mr Tomar (the applicant-husband) has filed six interlocutory applications with the Auckland Family Court:
(a)Discharge or rescind an order/direction for particular discovery dated 8 August 2019 (application made on 4 November 2020);
(b)Discharge or rescind the reserved judgment of Judge Burns dated 22 May 2020 (application made 17 December 2020);
(c)Application to strikeout pleading of Ms Tomar’s interlocutory application dated 15 December 2020 (application made on 29 December 2020);
(d)Application to vary the minute of Judge Burns dated 20 March 2020 (application made on 8 March 2021);
(e)Application for costs order against Ms Tomar (application made on 8 March 2021);
(f)Application to vary common bundle used for hearing on 20 March 2020 (application made on 10 March 2021).
[39] Applications (a), (c), (d) and (f) are clearly interlocutory on any orthodox definition of that term.36 Application (e) is not so clear cut, but it is difficult to conceive of it as “proceedings commenced or continued” by Mr Tomar. These observations are also true of (b), for, Mr Tomar was arguing the Judge should recall his decision as he alleged the Judge issued it before “expiration of the extension granted to him … for filing of his submissions”.37
[40] The second group arose in the parenting order proceedings. Judge Collin described them this way:38
(a)An application for a parenting order this is to determine the day to day care of the party’s child [X] born on 3 August 2011.
(b)A s 68 application for enforcement of a breach dated 8 January 2018 filed by Mr Tomar.
35 Tomar v Tomar, above n 4, at [5].
36 See, for example, Senior Courts Act, s 4 definition of “interlocutory”; High Court Rules 2016, r 1.3 definitions of “interlocutory application” and “interlocutory order”; and Family Court Rules 2002, r 8 definition of “interlocutory application”.
37 Tomar v Tomar, above n 4, at [13].
38 Tomar v Tomar FC Hamilton FAM-2016-039-93, 12 December 2019 (Minute of Judge G S Collin) at [2].
(c)A s 68 application for enforcement of a breach filed by Mr Tomar dated 6 March 2018.
(d)A s 46R application to determine guardianship issues. This application is in fact a combination of a day to day care and contact application.
(e)An application requiring [X] to attend Halsey Drive Primary School.
(f)An application to discharge the protection order dated at 24 June 2019.
(g)2 May 2016 Mr Tomar made a s 77 application to prevent the removal of [X] from New Zealand. The order was made without notice and is dated 2 May 2017. It was served on Ms Tomar who filed a notice of response on 26 May 2017. Although the order prevented removal as framed as a final order, in my view it cannot be as it was made without notice. The notice of response and affidavit filed in support is sufficient to satisfy the Court that the issues regarding the removal of [X] remain alive and need to be determined in the hearing. That issue will therefore be determined.
[41] I deal with application (f) later; see [46]–[51]. The six remaining applications were under the Care of Children Act 2004. That Act does not define “proceedings” or “interlocutory application”.
[42] Unlike the first group of applications, this group is not plainly interlocutory in nature. So, assuming (without deciding) each application in this group constitutes proceedings, the question then becomes: were the proceedings “totally without merit”?
In Mawhinney, the Court of Appeal said this phrase meant “bound to fail”.39
[43] In applications (a), (d) and (e), Mr Tomar proposed the parties’ son be in his daily care in Auckland; be enrolled in a particular Auckland school; and have contact with Ms Khatri on weekends. Daily care and contact arrangements changed over the years. For example, in early 2017, Mr Tomar had three hours of supervised contact per week. But, by November 2018, the interim parenting order was varied to provide for unsupervised contact, following a recommendation of a clinical psychologist appointed by the Court. Mr Tomar’s contact was later increased again. These applications turned on the son’s best interests and in turn, a host of variables. Given this and earlier variations to the interim parenting order, it cannot be said the applications were bound to fail.
39 Mawhinney v Auckland Council, above n 29, at [58].
[44]Application (g) succeeded; the non-removal order was not discharged.
[45] Mr Tomar brought applications (b) and (c) to enforce the interim parenting order, based on allegations Ms Khatri had contravened the order. He saw Ms Khatri’s failure to advise him of their son’s medical treatment as a denial of guardianship rights and breach of the interim parenting order. But, there was no evidence Ms Khatri had breached the order. It follows the applications were bound to fail—and did.
[46] The third group, comprising two applications, arose in the protection order proceedings. On 29 December 2017, then 24 June 2019, Mr Tomar applied to discharge the final protection order. Judge Riddell dismissed the first application after a hearing 19 July 2018.40 Judge Twaddle heard the second application with the proceedings in the second group.
[47] The power to discharge a protection order lay under the Domestic Violence Act 1955. Neither it nor its successor, the Family Violence Act 2018, defines “proceedings” or “interlocutory application”. If successful, an application to discharge a protection order does just that. It follows such an application affects the applicant’s rights. This suggests an application to discharge a protection order is not interlocutory in nature.
[48] Assuming these applications constitute “proceedings”, the question then is: were they totally without merit? The protection order was made final 11 August 2017. Less than four months passed before Mr Tomar filed an application to discharge it. Judge Riddell heard the application approximately six months later. The second application in question was filed approximately a year after Judge Riddell’s decision.
[49] The chronology is unhelpful to Mr Tomar, particularly when one considers the totality of steps he took to discharge the protection orders. Again, Mr Tomar filed applications to discharge or rescind the protection order 30 June 2017; 29 December 2017; 8 January 2018; 9 January 2018; 24 June 2019; 11 November 2019; 27 August 2020; and 14 September 2020. The frequency of these
40 Tomar v Tomar FC Morrinsville FAM-2016-039-092, 19 July 2018 (Minute of Judge R H Riddell).
applications implies the two proceedings were totally without merit; indeed, that Mr Tomar was fixated on discharging the order. Closer inspection supports this view.
[50] Mr Tomar wanted Judge Riddell to discharge the order because he disagreed with Judge Brown’s findings. That he did so is beside the point. This argument was bound to fail. Mr Tomar also wanted Judge Riddell to discharge the order because he believed Ms Khatri had committed criminal offences. Quite apart from the absence of rational connection between the alleged offences and the protection order, the offences were, as Judge Riddell noted, “farcical” and “absolute nonsense”.41 Mr Tomar threatened to prosecute Ms Khatri for defamation “for $10 million”.42 He also accused Ms Khatri of a “conspiracy under s 67 [of the] Crimes Act 1961”, and among other things, “kidnapping”. Mr Tomar adduced no independent evidence to support these extravagant claims. In short, the 29 December 2017 application to discharge the protection order was bound to fail.
[51] The 24 June 2019 application had some apparently reasonable elements. For example, Mr Tomar noted he had completed a rehabilitative programme and unsupervised contact with their son had been without incident. However, Mr Tomar continued to contest the protection order on the basis he disagreed with Judge Brown’s findings. This appears to have been Mr Tomar’s primary argument. Again, this was beside the point. Mr Tomar also continued to accuse Ms Khatri of wrongdoing, including “misleading the Court”. He adduced no independent evidence to support this or related claims. Mr Tomar also sought to revisit factual determinations absent fresh evidence. So, while the application had some reasonable elements, these stand out only because they are very much the exception. Considered in context of the balance of the hopeless arguments, and the unhappy chronology of serial unsuccessful applications to discharge or rescind the order, this application was bound to fail too.
[52] This leaves the final group identified by Ms Khatri, which concerns three applications. On 26 November 2019, Mr Tomar filed an application under r 14 of the Family Court Rules 2002. That rule allows a person in doubt about any matter of procedure to “make an interlocutory application … to the Judge for directions”. The
41 Tomar v Tomar, above n 8, at [12].
42 At [11].
application was to quash orders made on without notice applications in December 2016 for noncompliance with r 20(1)(b) of the Family Court Rules. Judge Collin dismissed the application 12 December 2019.43 Later, Mr Tomar twice applied for a re-hearing of Judge Twaddle’s decision to make the parenting order final and dismiss his application to discharge the protection order. The Judge dismissed the applications on 14 May 2020 and 9 September 2020; see [14].
[53] These applications are straightforward because an application for a re-hearing is an interlocutory application;44 and r 14 of the Family Court Rules says an application under that rule is interlocutory in nature too.
Summary
[54] Most of the applications identified by Ms Khatri do not qualify as proceedings commenced or continued by Mr Tomar. Some that may qualify were not totally without merit. This leaves five applications commenced or continued by Mr Tomar totally without merit:
(a)The application to ban Ms Khatri. Again, while this is undetermined, Ms Khatri was successful in the Family Court. Prima facie, the application is retaliatory and an abuse of process.
(b)The two applications to enforce the interim parenting order, based on allegations Ms Khatri had contravened it.
(c)The applications of 29 December 2017 and 24 June 2019 to discharge the final protection order.
[55] There is no doubt (a) constitutes “proceedings”. Applications (b) and (c) are probably not interlocutory in nature. But, it is not beyond doubt they constitute “proceedings” in terms of s 167. Bringing applications of this nature in the context of pre-existing litigation is not obviously the commencement of proceedings. And, while it could be conceived as the continuation of proceedings (brought by Ms Khatri), this
43 Tomar v Tomar [2019] NZFC 10550.
44 Family Court Rules, r 8 definition of “interlocutory application”.
raises the conceptual difficulties at [32]. For reasons that will become apparent, I need not be definitive.
Should the Court exercise its discretion to make an extended order against Mr Tomar assuming the threshold is crossed?
[56] The power to make an order under s 166 is discretionary—a Judge of the High Court may make an order if the Judge considers at least two or more of the proceedings are or were totally without merit.45
[57] Ms Khatri argues an order should be made. She says Mr Tomar has harassed and abused her by the way in which he has conducted his cases in the Family Court; and this sentiment is reflected in the decisions of that Court. Ms Khatri says nothing other than a ban will prevent Mr Tomar from filing meritless applications, and a ban is consistent with her rights under the protection order, which Mr Tomar has repeatedly breached in the guise of litigation.
[58]There is much to commend these arguments, which counsel assisting joins.
[59] Three points go the other way. First, all of Mr Tomar’s applications were ultimately directed at opposing relief Ms Khatri sought. Mr Tomar was a defendant, albeit, as observed, an especially difficult one. This scenario is removed from the orthodox one in which a vexatious litigant brings hopeless cases against others. Second, Ms Khatri has had some relief in the form of costs orders, including instances of increased and indemnity costs, and Judges have dismissed Mr Tomar’s plainly meritless applications. In this sense, the system has worked, albeit not without hardship to Ms Khatri. Third—and decisively—a simpler, more proportionate remedy is readily available.
[60] Section 166(6) of the Senior Courts Act confirms the Act does not limit the inherent power of the High Court to control its own proceedings. Mr Tomar has not paid much of the costs awarded against him. Ms Khatri said $63,387.15 remained outstanding,46 and she expected Lang J to award costs in the wake of the unsuccessful
45 Senior Courts Act, s 167(2).
46 Mr Tomar did not dispute this figure at the hearing.
appeals. Ms Khatri was prescient. On 9 November 2021, Lang J ordered Mr Tomar pay $35,611 in costs.47 So, Mr Tomar now owes Ms Khatri $98,998.15 in unpaid costs.
[61] It would be contrary to the interests of justice for Mr Tomar to continue his existing litigation in the High Court; bring new proceedings in this Court; or file applications of any sort in relation to either, given Mr Tomar has not met his obligations to Ms Khatri in relation to costs, particularly when these encompass meritless litigation here and below. I put this proposition to Mr Tomar. I foreshadowed the possibility of a prohibition unless Mr Tomar paid outstanding costs. Mr Tomar said he would “not object” to a prohibition of this nature, provided the outstanding costs were “not unlawful”. Plainly, they are not.
Result
[62] Ms Khatri’s application is dismissed. So too Mr Tomar’s application to “strike out” the application.48
[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.
[64]Mr Tomar’s existing litigation in the High Court is stayed pending [63].
……………………………..
Downs J
47 Tomar v Tomar [2021] NZHC 2985.
48 This application was needless.
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