Tomar v Attorney-General - [2019] NZHC 3485

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-703

[2019] NZHC 3485

BETWEEN
AKHIL TOMAR

Applicant

AND

ATTORNEY-GENERAL

First Respondent

AND

MASSEY UNIVERSITY

Second Respondent

Hearing: 7, 8 and 11 November 2019

Appearances:

Plaintiff appears in Person

E J Watts and D Ballinger for First Respondent
A B Darroch and L S Castle for Second Respondent

Judgment:

20 December 2019

JUDGMENT OF GRICE J

Contents

Introduction [1]

Background  [4]
Relationship between Massey University and the Department  [9]
Mr Tomar’s study  [26]
The University library service  [51]
Communications  [56]
Mr Tomar’s suggestions for better communication  [64]

The statutory framework [69]

Analysis [78]
Breach of statutory duty [80]

Massey University’s failure to perform contractual obligations  [91] The Department’s failure to perform contractual obligations  [112] Misfeasance in a public office  [121]
Breach of s 19(1) of NZBORA  [133]
Breach of s 23(5) of NZBORA  [141]
Damages and loss  [148]
Other applications  [150]
Conclusion  [153]
Costs  [155]

TOMAR v ATTORNEY-GENERAL & MASSEY UNIVERSITY [2019] NZHC 3485 [20 December 2019]

Introduction

[1] Mr Tomar is a serving prisoner. He has been taking extramural courses while in prison through Massey University. He is eager to take as many university courses as possible while in prison. He says it will assist in both his rehabilitation and give him better prospects when released from jail.

[2] This case centres on the difficulties Mr Tomar says he has encountered in trying to enrol in university courses and to undertake his study. He says he has been prevented from doing the number of courses he had wanted to do and his study has been made more difficult because of barriers which have been put in his way by both the Department of Corrections (the Department) and Massey University.

[3] Mr Tomar says the Department and Massey University have each acted or omitted to act in ways which have led him to achieving lower grades than he might have had they better assisted him with his studies. He says they had legal obligations in that regard which they have breached. Mr Tomar claims damages and compensation for the loss of earnings and other less tangible benefits which might have accrued to him in the future had he been able to do the courses he had wanted to do and had achieved higher grades.

Background

[4] Incarceration poses particular problems for students wanting to take university level courses.

[5] Prisoners are not allowed internet access nor to use computers except under strict supervision. Some specific internet “white sites”, which are few in number, are accessible. These sites have been thoroughly checked by the Department for security issues.

[6] Selected external providers, such as Massey University and the Open Polytechnic, offer courses suitable for incarcerated students. The Department itself also provides internal courses for prisoners on topics such as numeracy and literacy.

[7] Only 19 of the approximately 30,000 students enrolled with Massey University are prisoners. The total prison population in New Zealand…

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 [2019] NZHC 3485
Case: [2019] NZHC 3485
Decision Date: 20 December 2019

CaseChat Overview and Summary

In Tomar v Attorney-General & Massey University, the applicant, Mr Tomar, a prisoner, brought claims against the Attorney-General and Massey University for breaches of statutory obligations, contract, tort, and the New Zealand Bill of Rights Act 1990 (NZBORA). Mr Tomar argued that the restrictions on his access to education and communication with Massey University amounted to unlawful discrimination and breaches of his rights. The Court dismissed all of Mr Tomar's claims. The Court found that the Corrections Act was not intended to create private law claims for breaches of statutory duties. Additionally, the Court held that Massey University did not breach its contractual obligations, and the Memorandum of Understanding between the Department and Massey University was not an enforceable contract. The Court also rejected Mr Tomar's claims of misfeasance in a public office, discrimination under NZBORA, and breaches of his right to be treated with humanity and respect for his inherent dignity. The Court concluded that the restrictions on Mr Tomar's access to education and communication were proportionate to maintaining public safety and were not discriminatory or unlawful. The claims were dismissed, and the defendants were awarded costs.

Orders