Tomar v Khatri

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA119/2024
[2025] NZCA 119

BETWEEN	VIN TOMAR Applicant
AND	MONIKA KHATRI Respondent

Hearing:	5 November 2024
Court:	Ellis, Peters and Muir JJ
Counsel:	Applicant in person No appearance for Respondent
Judgment:	15 April 2025 at 10.00 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BNo award of costs is made.

____________________________________________________________________

REASONS OF THE COURT

(Given by Muir J)

Introduction

Mr Tomar wishes to appeal a two-paragraph decision of Downs J, dated 1 February 2024, declining an application dated 19 December 2023 seeking access to court documents, or more accurately, transcripts of court proceedings.[1] Mr Tomar seeks the transcript of a hearing before Downs J, after which he issued a judgment restraining Mr Tomar from continuing or bringing further litigation (the substantive judgment).[2]
[1]Khatri v Tomar HC Auckland CIV-2021-404-1138, 1 February 2024 [minute of Downs J].
[2]Khatri v Tomar [2021] NZHC 3091 [substantive judgment].
The position is complicated by the fact that Mr Tomar has made multiple applications for access to transcripts across multiple proceedings. It is further complicated by the fact that the sheer proliferation of applications and other documents filed by Mr Tomar means it is not possible definitively to ascertain whether Mr Tomar has sought leave to appeal Downs J’s interlocutory decision in the High Court, which is a prerequisite to our consideration of an application for leave in this Court.[3]
[3]Senior Courts Act 2016, s 56; and Power v White [2022] NZCA 116. We note that Downs J did decline an application by Mr Tomar for leave to appeal against at least one transcript decision by minute dated 1 February 2024.
In light of the above, we propose to take the course most beneficial to Mr Tomar. We therefore proceed on the basis that, leave having been declined in the High Court, he has applied for leave to appeal to this Court. In the context of determining that application we will also address the merits of his proposed appeal, which were fully ventilated at the hearing before us.
In the event any future court is required to revisit this convoluted matter, we will set out the apparent position from inception.
The appeal Mr Tomar wishes to advance is in terms which only seeks “permission to have a copy of transcripts of hearing held before Justice Downs for [the substantive judgment]”. It does not, in that sense, directly engage with any other decision in relation to the production of transcripts in any other proceeding.

Background

On 1 November 2021, Downs J heard an application by the applicant’s former wife, Ms Khatri, for orders under s 166 of the Senior Courts Act 2016 banning Mr Tomar from commencing or continuing any civil proceedings against her.[4] Both Ms Khatri and Mr Tomar appeared in person. The Court was assisted by counsel Ms Jerebine.
[4]Substantive judgment, above n 2.
In his substantive judgment dated 18 November 2021, the Judge dismissed Ms Khatri’s application but invoked the inherent power of the High Court to control its own proceedings,[5] and prohibited Mr Tomar from continuing all existing litigation in the High Court, bringing new proceedings in the High Court, or filing related applications unless he first paid to Ms Khatri outstanding costs in the sum of $98,998.15.[6] This sum included an amount of $35,611 awarded by Lang J in separate proceedings on 9 November 2021.[7]
[5]See s 166(6) of the Senior Courts Act.
[6]Substantive judgment, above n 2, at [63].
[7]Tomar v Tomar [2021] NZHC 2985 at [8].
The substantive judgment records that Downs J advanced the prospect of such a prohibition during the course of oral argument. It also records Mr Tomar’s response:[8]
[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.
[8]Substantive judgment, above n 2.
On 15 December 2022, Mr Tomar applied to recall “some part of para [61]” of the substantive judgment. He said that Downs J was “in error” and “I strongly believe … lying” by saying that Mr Tomar would “not object” to a prohibition, provided the outstanding costs were “not unlawful”.
The next ground of his application made it clear however that he was not in fact disputing what Downs J had recorded him as saying but was disputing that any lawful costs orders had ever been made against him.
On 1 February 2023, Downs J directed Mr Tomar to file submissions in support of his application for recall by 22 February 2023. The same day Mr Tomar filed a standard form “Application for access to court documents” in which he said he sought access to a “(Copy) of the transcripts for CIV-2021-404-1138 [the matter before Downs J], CIV-2021-404-976 AND CIV-2020-404-815”. The latter two proceedings were those before Lang J.
The reasons for his application were set out as follows:
On 1 Feb 2023, Justice DOWNS has directed me to file my submission on this matter by 22 Feb 2023. Copy attached of minute. To make and file my submission for CIV-2021-404-001138, I need transcript of hearing for this matter. And since justice DOWNS has also mentioned (about the decision of justice LANG dated 2021 for Tomar v Tomar (CIV-2020-404-815 AND
CIV-2021-404-976) in his decision dated 18 Nov 2021 [2021] NZHC 3091”, I would also need the transcript of hearing for CIV-2020-404-815 AND
CIV-2021-404-976 as well.
On 10 February 2023, Downs J published a minute in the following terms:[9]
[1]       Mr Tomar has applied to recall para [61] of my judgment dated 18 November 2021. I have directed Mr Tomar to file submissions in support of that application on or before 22 February 2023. Mr Tomar has applied for a transcript of the hearing in connection with my judgment. He has also applied for transcripts of other cases as well: CIV-2021-404-976 and
CIV-2020-404-815.
[2]       Transcripts are not made available as a matter of course and are prepared and released when genuinely necessary only.
[3]       I decline the application I am not persuaded it is necessary for Mr Tomar to have transcripts to advance his recall application which, as will be apparent, is directed as a discrete aspect to my judgment.
[9]Khatri v Tomar HC Auckland CIV-2021-404-1138, 10 February 2023 (footnote omitted).
On 3 April 2023, Downs J declined the recall application.[10] He noted Mr Tomar’s argument that the costs figure referred to in his judgment should be reduced by $35,611 (being the costs awarded by Lang J) because the order was invalid or “unlawful” and Lang J did not decide “everything that needed to be decided when the case was before him”.
[10]Tomar v Khatri [2023] NZHC 708.
The Judge said that the answer to this contention was that the judgment of Lang J had not been quashed or set aside by a higher court and that there was therefore no basis in law for him to reexamine his costs decision. The Judge’s conclusion in that respect must be considered unarguable.
On 3 May 2023, Mr Tomar filed a second application for access to court documents, being transcripts of hearings for each of CIV-2021-404-1138 (the matter before Downs J), CIV-2021-404-976 and CIV-2020-404-815 (the matters before Lang J), and a further proceeding before Associate Judge Gardiner.[11] The reasons for the application were stated as follows:
I am one of the parties to this matter and the High Court has made decision against me. I need to copy of transcript for my litigation purpose and to start a criminal proceedings as well.
[11]Re Tomar, ex parte Khatri [2023] NZHC 684.
In response to this application, the Registrar wrote to Mr Tomar the same day. He stated:
I refer to your below application. I attach the minute of Downs J dated
10-2-2023, who has already considered and declined an application for transcript in CIV-2021-404-976, CIV-2021-404-1138 and [CIV-2020-404-815].
As for the proceedings, CIV-2022-404-1383, I will leave this with the case officer for that proceeding to follow up.
Mr Tomar then requested that the matter be put before the Judge again, indicating that he wished to make an oral submission. He followed up that request with emails on 12 May 2023 and 16 June 2023 inquiring as to progress on his application.
On 16 June 2023, the Registrar advised:
The applications have been put before Downs J. His Honour has made no new directions.
On 4 July 2023, Mr Tomar filed a third application seeking transcripts of the hearings in respect of CIV-2020-404-815 and CIV-2021-404-976 (the matters before Lang J). On this occasion his stated reasons were:
I am the affected party from these matters. My Ex-wife Monika Tomar made a complaint against me to Police and there is CRI matter
(CRI-2020-004-001299) – for that I am seeking all evidence of judgements (sic) made by the all (sic) courts related to Tomar v Tomar for my both civil and criminal litigation purposes.
On 19 December 2023, Mr Tomar filed a fourth application. It was expressed to be in respect of CIV-2021-404-1138 only (the matter before Downs J). He stated that he sought:[12]
… the transcript of the hearing held on this matter at the High Court in Auckland for CIV-2021-404-1138 becuse hearing evidance is part of decesion which made by the justice DOWNS for [2021]NZHC3190 And I am seeking extesnion for appealing this decsion at the Court of appeal. I have attached the notice of filing.
Please provide me copy of trascript urgently and let me know if there is any cost to pay.
[12]Errors in the original.
The stated reasons for his application involved a repetition of the same submission. In the email attaching his application he asked for it to be processed as soon as possible as:
… I have challenged this matter at the court of appeal and need all evidence of decision which was used by justice DOWNS for his decision dated 18 November 2021 for [2021] NZHC3190.
Mr Tomar followed this up with an email dated 9 January 2024 asking for his application for transcripts to be processed urgently. On 10 January 2024, the Registrar responded:
I note this application further seeks transcripts on the file CIV-2021-404-1138.
Access to the court file has already been declined in the minute dated
10-02-2023.
Your further application for transcripts was again put to Downs J, who declined to consider it as a determination was already made.
On 1 February 2024, this was followed by a formal minute of Downs J in the following terms:[13]
[1] I decline Mr Tomar's application (of 19 December 2023) to access court documents because:
(a) The document sought—a transcript of the hearing—does not exist.
(b) I declined to order a transcript on 10 February 2023 (by Minute of that date).
(c) The application is frivolous and vexatious.
[2] The Registrar informs me I have overlooked an application by Mr Tomar dated 10 March 2023 for permission to appeal my 10 February 2023 decision in relation to the transcript. I decline permission as that application is frivolous and vexatious.
[13]Minute of Downs J, above n 1.
On 5 March 2024, Mr Tomar filed his notice of appeal against that decision. On 6 March 2024, this Court minuted that the appeal should be case managed together with an application for extension of time to bring an appeal from the substantive judgment.[14] Goddard J noted that if an extension of time was not granted then it seemed likely that the appeal against the decision of 1 February 2024 “serves no useful purpose”.[15] He noted that a transcript of the High Court hearing “cannot be relevant to the question [of] whether time to appeal should be extended”.[16] He then continued:
[5] I also very much doubt that the transcript of the High Court hearing would be relevant to an appeal against the original High Court judgment, in the event that an extension of time is granted. But that is a matter best addressed at a later date, once the application for extension of time in CA777/2023 has been determined.
[14]Tomar v Khatri CA119/2024, 6 March 2024 [minute of Goddard J].
[15]At [4].
[16]At [4].
On 8 July 2024, this Court granted Mr Tomar’s application for extension of time, noting that the proposed appeal raised issues “of wider public interest in relation to the power of the High Court to make civil restraint orders in the exercise of its inherent jurisdiction, rather than under s 166 of the Senior Courts Act”.[17] It further noted that since delivery of the High Court judgment, this Court had delivered its decision in DFT v JDN,[18] on the basis of which it was strongly arguable that the High Court could not make an order prohibiting Mr Tomar from bringing proceedings for an indefinite period, particularly without providing a leave mechanism to do so.
[17]Tomar v Khatri [2024] NZCA 301 [CA judgment] at [9].
[18]DFT v JDN [2023] NZCA 15, [2023] NZAR 69.
Mr Tomar has now filed his notice of appeal from the substantive judgment. He raises multiple grounds of appeal including “misapplication of inherent jurisdiction”, “procedural fairness” and “lack of proportionality”. He also says that there is a “discrepancy” in the decision relating to the “accuracy and fairness of the decision-making process”. He elaborates:[19]
For instance, during the hearing, Justice Downs orally directed Mr Tomar that, “Mr Tomar you do not have to do anything because there is no merit in the application of Ms Khatri”. Justice Downs also offered Ms Khatri the option to withdraw her application, suggesting he might stay all existing proceedings against her, but Ms Khatri declined this offer. However, the reserved decision of Justice Downs does not accurately reflect these facts as held during the hearing.

What the proposed appeal concerns and what it does not

[19]Emphasis original.

The decision dated 1 February 2024 was made in respect of an application dated 19 December 2023 which sought a transcript of the hearing in
CIV-2021-404-1138 only. The application refers specifically to an intended application for an extension of time to appeal the substantive judgment. The application did not seek transcripts in respect of hearings relating to the matters which came before Lang J (CIV-2021-404-976 and CIV-2020-404-815).
Consistent with that position, and as we have observed, the notice of appeal in the matter before us seeks a grant of “permission to have a copy of the transcripts of hearing held before Justice Downs for [the substantive judgment]”.
Although Downs J may have declined transcripts in proceedings
[20]Which, in our view, was appropriate.
CIV-2021-404-976 and CIV-2020-404-815 in the context of an application to recall his judgment of 18 November 2021,[20] he has not declined access to those transcripts for all purposes. If, for example, they were relevant to Mr Tomar’s intended appeal from the substantive judgment, then an application could be renewed in that respect. But we struggle to identify how such relevance could be established. If Mr Tomar wished to challenge the costs award made by Lang J as “illegal” the appropriate course was to appeal that decision.
It follows from this lengthy narrative that our assessment of the merits of Mr Tomar’s proposed appeal (and so, this application for leave) will focus only on whether, on 1 February 2024, Downs J correctly exercised his discretion not to order a transcript of the hearing before him on 1 November 2021. We will not be considering any issue in respect of transcripts of proceedings CIV-2021-404-976 and
CIV-2020-404-815.[21]

Access to transcripts — the law

[21]We acknowledge that what Downs J appears not to have appreciated at the time of his decision on 1 February 2024 was that the application for access made on 19 December 2023 was on grounds different to that made on 1 February 2023. We can understand why — the Judge had received a blizzard of overlapping applications. But the application of 1 February 2023 related to a recall application, and that of 19 December 2023 to an intended application to appeal out of time, in which the overall merits of the substantive judgment would be in play. Theoretically the different grounds could give rise to different considerations in terms of the relevance of the transcript. We do not therefore consider that the application should have been disposed of on the basis of it being repetitious and in that sense frivolous and vexatious. It should have been considered on its merits in the context of the proposed appeal.

Access to documents in civil proceedings is governed by r 9 of the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). This provides parties to a civil proceeding (and their lawyers) with a right to search and inspect the court file or any document relating to the proceeding without paying a fee, or copy any part of the court file or any document on paying a prescribed fee (if any).[22]
[22]Senior Courts (Access to Court Documents) Rules 2017, r 9(1).
A document is defined in r 4 as “any written material in the custody or control of the court”, which includes “documentary exhibits, video recordings, records in electronic form, films, photographs, and images in electronic form”. An audio record of the hearing before Downs J is therefore a document for the purposes of the Rules. The right of access to search, inspect and copy the court file or any document on it is qualified by r 9(5), which provides that an electronic record of a court proceeding may only be copied with the permission of a judge.
Although a written transcript of the hearing before Downs J (or of the audio recording) would fall within the definition of “written material in the custody or control of the court”, no such transcript exists.[23] Rule 3(3) stipulates that the Rules do not require a document which is not in existence to be prepared. And as the Supreme Court made clear in Siemer v Heron — a court will not direct transcripts to be prepared unless there is a good reason in the interests of justice for doing so.[24]
[23]Rule 4.
[24]Siemer v Heron[Recusal] [2011] NZSC 116, [2012] 1 NZLR 293. See also Dunstan v Ministry of Social Development [2023] NZCA 164 at [14].
In that case, the Supreme Court recognised:[25]
There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters generally on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interest of justice for giving such directions.
[25]At [9].
Ordinarily, these resource implications will not be adequately met simply by an applicant’s offer to search and copy the audio file (as opposed to searching and copying a transcript of the proceeding). That is because the court (and the opposing party) is entitled to ensure that any subsequent transcript prepared by the party who applies for it is accurate. Experience indicates that the preferable course will invariably be for the National Transcription Service to prepare the transcript. As such, resourcing issues will typically feature in the calculus.
Apart from the costs and resources involved in transcription production, there are other reasons why the court should always satisfy itself that there is proper justification for the request. These were recently referred to by van Bohemen J in Ingenious Asset Management Ltd v McConnon.[26]His Honour observed:
[28] I agree that the orderly and fair administration of justice is highly relevant, although not in the sense Mr Jindal contends. As I noted in my minute of 7 August 2024 declining the request for the recall of my earlier minute declining access, it would not be consistent with the orderly and fair administration of justice, and would be a significant burden on the Courts, for recordings of this nature to be introduced into what should be [a] straightforward appeal based on the reasons set out in the Costs Judgment. To provide such recordings routinely to litigants would risk disappointed parties mounting challenges to decisions based on what was said at a hearing rather than what was recorded in the judgment setting out the decision. That could prove hugely wasteful of judicial time and court resources. For these reasons, I consider that this consideration weighs strongly against granting access.

Could there be any reasonable requirement for a transcript in the context of Mr Tomar’s intended appeal?

[26]Ingenious Asset Management Ltd v McConnon [2024] NZHC 3137.

We consider that Goddard J’s preliminary assessment (in which he “very much doubt[ed] that the transcript of the High Court hearing would be relevant to an appeal against the original High Court judgment”) was plainly correct.[27]
[27]Minute of Goddard J, above n 14, at [5].
The judgment on Mr Tomar’s application for leave to appeal out of time identifies what the key issues will be on Mr Tomar’s appeal. These are:[28]
(a)the extent of the High Court’s power to make civil restraint orders in the exercise of its inherent jurisdiction rather than under s 166 of the Senior Courts Act;
(b)whether, in light of the decision in DFT v JDN, it was appropriate for the High Court to make an order prohibiting Mr Tomar from bringing High Court proceedings for an indefinite period; and
(c)whether if a prohibition for an indefinite period was appropriate, there should nevertheless have been an opportunity for Mr Tomar to apply for leave to bring a further proceeding.
[28]CA judgment, above n 17, at [9].
We acknowledge that, in the same (leave) judgment, this Court observed that the substantive judgment records Mr Tomar’s indication that he would not object to a prohibition along the lines subsequently imposed, provided the outstanding costs were “not unlawful”, and that the “proposed appeal appears to resile from that indication”.[29]
[29]At [8].
If there was some dispute over whether Mr Tomar had given such an indication at the hearing, that might support an argument that a transcript was reasonably required (although it would be far from determinative). But there is no such dispute. Rather, in the hearing before us, Mr Tomar accepted that he had confirmed he would not object to a prohibition but emphasised that this was preconditioned on the outstanding costs being “not unlawful”. And as we have indicated, an award of costs will be lawful unless quashed on appeal or otherwise set aside, for example on a successful recall application of the costs award. Provision of the transcript does not therefore address any live issue in this respect.
In any event, whether Mr Tomar said that he would “not object”, providing the outstanding costs were “not illegal” is irrelevant to the issues which this Court is ultimately required to decide. Those issues are substantially jurisdictional. If jurisdiction does not exist, it cannot be conferred by indications of “non-objection”.
As we have observed, Mr Tomar’s notice of appeal from the substantive judgment also refers to an alleged “discrepancy” in the judgment. We do not consider provision of the transcript could be justified on this basis either. Whether the Judge said to Mr Tomar “you do not have to do anything because there is no merit in the application by Ms Khatri” may be relevant to Mr Tomar’s procedural fairness argument. But there is no dispute that there was a discussion between the Judge and Mr Tomar about the Judge’s proposed prohibition, and that Mr Tomar said that he would not object if his identified precondition was met. Nor is it relevant to the merits of Mr Tomar’s appeal from the substantive judgment that the Judge may have offered Ms Khatri the option of withdrawing her application (on the basis of a prohibition being granted) and that she declined the invitation.

Should leave to appeal be granted?

There is nothing in Mr Tomar’s proposed transcript appeal that would warrant the grant of leave.[30] There is certainly no error raised that could be said to be of general or public importance.[31] Moreover, for the reasons we have given, the proposed appeal lacks merit; we do not consider that sufficient reasons have been advanced for production of the transcript of the hearing to justify the resource implications of providing one, nor to meet the other concerns we have identified.

Result

[30]See Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

[31]At [6(c)].

The application for leave to appeal is declined.

[2025] NZCA 119

15 April 2025 at 10.00 am