Tomar v Attorney-General - [2020] NZHC 3502

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-703

[2020] NZHC 3502

BETWEEN
AKHIL TOMAR

Applicant

AND

ATTORNEY-GENERAL

First Respondent

MASSEY UNIVERSITY

Second Respondent

Hearing: On the papers

Judgment:

22 December 2020

JUDGMENT OF GRICE J (costs)

[1] This is an application for costs by the Attorney-General on behalf of the Department for Corrections (the Department). The substantive judgment on this matter was delivered in December 2019.1 The timetable set out in that decision for the filing of submissions on costs has long expired. However, while the Department was able to meet the timetable, Mr Tomar, through no fault of his own, did not receive the relevant documentation and has had various difficulties in filing his submissions and affidavits. The Department has taken no issue with the substantial delay in Mr Tomar filing his material with the Court.

[2] Mr Tomar is a serving prisoner. The substantive proceedings related to claims that he had been treated unfairly in relation to his access to extramural study. He had been studying through Massey University while in prison with some success. He felt

1 Tomar v Attorney- General [2019] NZHC 3485.

TOMAR v ATTORNEY-GENERAL [2020] NZHC 3502 [22 December 2020]

he was being improperly limited in the courses he was allowed to take by both the Department and Massey University.

[3] Mr Tomar’s claims were for breaches of statutory obligations, contract, tort and under the New Zealand Bill of Rights Act 1990 (NZBORA). Both the Department and Massey University denied the allegations. I dismissed all the claims, including the allegations of misfeasance in a public office brought against the Department staff.

[4] I noted that allegations of misfeasance in public office were serious allegations and required a concomitant level of proof. I found that the evidence failed, by a substantial margin, to establish the claims. No intent was proved against any of the named individuals.

[5] I noted in my judgment dismissing all claims that the usual position was that costs were awarded to the successful parties. I indicated that if costs were sought by either of the respondents, an application and supporting memorandum should be filed on a timetabled basis.

[6] Massey University, the second respondent, and Mr Tomar filed a joint memorandum dated 27 January 2020 indicating agreement had been reached that no award as to costs would be sought by the University.

[7] The Attorney-General sought costs following the timetabled directions. The costs sought were on a category two, band B scale basis.2 This appeared appropriate as the proceedings were of average complexity and required counsel of skill and experience considered average in the High Court. A normal amount of time as envisaged on that category/band was appropriate in the circumstances.

[8] The claims in general faced substantial difficulties in many respects. There was no public interest aspect to them. The first respondent indicated that it had pointed out the defects in the claims to Mr Tomar at an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tomar v Attorney-General

Details

AGLC: Tomar v Attorney-General [2020] NZHC 3502
Case: [2020] NZHC 3502
Decision Date: 22 December 2020

CaseChat Overview and Summary

This case involved an application for costs by the Attorney-General on behalf of the Department for Corrections. The applicant, Akhil Tomar, is a serving prisoner who had filed claims against the Department and Massey University regarding his access to extramural study while incarcerated. The claims were ultimately dismissed by the High Court. The legal issues before the court were whether the costs sought by the Attorney-General were reasonable and appropriate, and whether the court should award costs against Tomar, who had insufficient funds to pay them.

The court found that the costs sought by the Attorney-General were reasonable, given the average complexity of the proceedings and the necessity for counsel of skill and experience. The court also considered the fact that the Department had pointed out the defects in Tomar's claims at an early stage and had offered to assist him within the constraints of his status as a prisoner. Despite Tomar's financial difficulties, the court ruled that costs should follow the event and that there was no reason to depart from that principle in this case. The court noted that Tomar had been given the opportunity to withdraw from the proceedings at a time when the Department appeared willing to let any costs incurred to that date lie, but he chose to continue with the applications.

The court awarded costs to the Attorney-General on a 2B basis, along with disbursements as claimed in the schedule to the Attorney-General's memorandum. The total amount of costs awarded was $49,554. The court emphasised that the costs regime is based on the principle that the unsuccessful party should pay costs, and that costs should be predictable, consistent, and expeditious in determination. While allowances must be made for litigants in person who are not familiar with the rules, the opportunity was extended to Tomar to resolve this matter without jeopardy as to costs.

In conclusion, the court awarded costs to the Attorney-General in the amount of $49,554, along with disbursements as claimed. The court found that the costs sought were reasonable and appropriate, and that there was no reason to depart from the principle that costs should follow the event. The court also noted that Tomar had been given the opportunity to withdraw from the proceedings at a time when the Department appeared willing to let any costs incurred to that date lie, but he chose to continue with the applications.

Orders