Tomar v Police - [2019] NZHC 1893

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-000068

[2019] NZHC 1893

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of judicial review

BETWEEN

AKHIL TOMAR

Applicant

AND

NEW ZEALAND POLICE

Respondent

On the papers

Judgment:

6 August 2019

JUDGMENT OF DUFFY J

This judgment is delivered by me on 6 August: 2019 at 10.00 am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Crown Law, Wellington

Party:
Applicant

TOMAR v NEW ZEALAND POLICE [2019] NZHC 1893 [6 August 2019]

[1] Akhil Tomar has presented the Registry of this Court with a notice of proceeding and statement of claim seeking judicial review of a decision of the New Zealand Police, refusing to commence a prosecution against Liza Roberts. He has also filed an application for waiver, or refund, of fees.

[2] The Registrar has referred the proposed filing to me for directions whether it should be accepted under High Court Rules 2016 r 5.35A:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1) This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly ab abuse of the process of the court.

(2) The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16 [Formal requirements for documents, heading of court documents]

(3) However, the Registrar may,-

(a) as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b) until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding

[3]Rule 5.35B provides guidance on how to deal with this matter. It provides:

…

(2) The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that-

(a) the proceeding be struck out:

…

(3) Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4) A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

[4] A proceeding can rightly be struck out under this rule if I am satisfied the proceedings are “plainly an abuse of the process of the court”.1 The Court has adopted a two-pronged test for strike…

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 Police

Details

AGLC: Tomar v Police [2019] NZHC 1893
Case: [2019] NZHC 1893
Decision Date: 6 August 2019

CaseChat Overview and Summary

The case of Tomar v Police involved Akhil Tomar, who sought judicial review of a decision by the New Zealand Police not to prosecute Liza Roberts for alleged assaults committed against him. The Court was tasked with determining whether the police's decision not to prosecute was an abuse of the court's process, and whether the applicant's grounds for review were legally tenable. The central issue was whether the court should intervene in the prosecutorial discretion of the police. The Court found that the prosecutorial discretion to decide whether to lay charges is well established and that the court should not interfere with this executive function. The decision not to prosecute could also be seen as a collateral attack on Roberts, who was currently imprisoned for offences against Tomar. The Court concluded that the proceeding was plainly an abuse of the court's process and struck it out, finding that the applicant had no legal basis to challenge the police's decision. The Court also dismissed the application for a waiver of fees as the proceedings were no longer proceeding. Tomar had the right to appeal the decision to strike out the proceedings.

Orders