Tomar v Tomar
[2022] NZCA 28
•28 February 2022 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA711/2021 [2022] NZCA 28 |
| BETWEEN | VIN TOMAR |
| AND | MONIKA TOMAR |
| Court: | Brown, Brewer and Cull JJ |
Counsel: | Applicant in Person |
Judgment: | 28 February 2022 at 3.30 pm |
JUDGMENT OF THE COURT
AThe application for an adjournment is declined.
BThe application for leave to appeal to the Court of Appeal is declined.
CThe applicant must pay the respondent costs on a standard application for leave on a band A basis and usual disbursements.
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REASONS OF THE COURT
(Given by Brown J)
Introduction
The applicant’s two appeals to the High Court against judgments of the Family Court at Auckland dated 22 May 2020[1] and 20 May 2021[2] were dismissed (save in two respects) by Lang J on 10 September 2021.[3] His application to the High Court for leave for a second appeal to this Court pursuant to s 60(2) of the Senior Courts Act 2016 was declined on 9 November 2021.[4] He now applies directly to this Court for leave to appeal against the 10 September 2021 judgment.[5]
The course of the application
[1]Tomar v Tomar [2020] NZFC 2960.
[2]Tomar v Tomar [2021] NZFC 4666.
[3]Tomar v Tomar [2021] NZHC 2353.
[4]Tomar v Tomar [2021] NZHC 3003 [leave].
[5]Although the application for leave referred to the High Court judgments of 9 November 2021 (refusal of leave to appeal and costs) the applicant subsequently confirmed in an email of 13 December 2021 that his application relates only to the 10 September 2021 judgment.
The interlocutory application for leave for a second appeal to this Court was filed on 6 December 2021 together with an affidavit of the applicant. The application stated that the applicant had applied to the High Court for release of the transcripts of the hearings and conferences held in respect of the appeals but the High Court had refused this request. In addition to seeking leave to appeal the application sought an interim stay of the judgment and a direction that the High Court release all transcripts relating to the two appeals.
The affidavit dated 6 December 2021 recited a detailed list of criticisms, relating to both the conduct of the High Court hearing on 1 September 2021 and the judgment which is the subject of the leave application. The applicant then stated that there were other legal issues he wished to raise. However he would only address them once he had a copy of the transcript of the High Court hearing, following the receipt of which he intended to update his affidavit.
On 17 December 2021 counsel for the respondent filed a memorandum in accordance with r 19A of the Court of Appeal (Civil) Rules 2005 (the Rules) setting out in detail the grounds on which the leave application was opposed. An affidavit of the respondent was also filed.
That same day the applicant filed a memorandum in which he noted that he was required to file any submission in support within 20 working days of 6 December 2021. He contended that in order to file a correct submission he required the High Court transcript and he sought a direction that it be released to him.
On 21 December 2021 Kós P issued a minute directing that the application for leave to appeal would be heard on the papers in a Divisional Court in the week of 14 February 2022. The minute indicated that in view of the material already filed the Court did not require further written submissions, but that did not preclude submissions being filed so long as they complied with r 23 of the Rules. The President directed that as no good cause had been shown for the Court to direct a transcription of the hearing before Lang J no such order would be made. The application for stay was adjourned pending determination of the leave application.
Following the release of the minute, the applicant sent an email to the Court on the afternoon of 21 December 2021 reiterating his request for a direction that the High Court provide all transcripts of the appeal proceeding. It appears that he also submitted an amended version of his 17 December 2021 memorandum. He sent a further email to the Court on the morning of 22 December 2021. The President issued a further direction stating that he was not prepared to deal with the matter by instalments and recording that the application for a transcript had been declined in his earlier minute.
A fixture notice issued on 22 December 2021 advised that any written submissions of the applicant were to be filed by 21 January 2022. No further submissions were filed.
Relevant principles
The principles governing applications for leave to bring a second appeal under s 60(2) of the Senior Courts Act 2016 were reiterated by this Court in Butch Pet Foods Ltd v Mac Motors Ltd:[6]
[4] The test for leave to bring a second appeal to this Court is well established. The proposed appeal must raise some question of law or fact capable of bona fide and serious argument, in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. On a second appeal this Court is not engaged in the general correction of error. Its primary function is to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a court.
Application for adjournment
[6]Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276, (2018) 24 PRNZ 500 (footnotes omitted).
On 14 February 2022 the applicant filed an application for an adjournment of the hearing of his application for leave to appeal, contending that he was unable to pursue his appeal without the High Court transcripts he had sought. On the same day he filed an application for review of the decision of Kós P declining to order the production of transcripts.
The applicant has been aware since 22 December 2021 that the President has twice declined his request for an order for transcription. His application for an adjournment was only filed at the commencement of the Divisional Court week during which his application was scheduled for determination. In any event it is our view that it would be unnecessary for the applicant to have transcripts of the High Court hearing for the purposes of consideration of the threshold issue of whether leave for a second appeal should be granted. Consequently the application for an adjournment is declined.
The High Court judgment
The judgment is detailed and logically constructed.
The Judge first addressed an application by the applicant to adduce further evidence on appeal, stating:[7]
[4] Shortly before the hearing Mr Tomar filed an application seeking leave to adduce further evidence. … I advised Mr Tomar that I would receive the new material to the extent that it assisted me to determine the issues raised by the appeals. As it transpires, however, I have not found it necessary to refer to any of the new material in determining the appeals.
[7]Tomar v Tomar, above n 3.
The Judge proceeded to address the first appeal, explaining the procedural background[8] and then identifying from the amended notice of appeal of 16 June 2021 six issues on appeal, which he addressed individually.[9] The Judge dismissed the first appeal, save for making two modest monetary adjustments in favour of the applicant.[10]
[8]At [6]–[14].
[9]At [16].
[10]At [76].
Following delivery of the first Family Court decision the applicant filed six interlocutory applications in that Court. They were heard together on 19 May 2021 and dismissed the following day. The second appeal essentially comprised a revisitation of those procedural complaints. Lang J could identify no error in that judgment and consequently the second appeal was dismissed.[11]
Discussion
[11]At [95].
The extensive list of “legal issues” detailed in the applicant’s affidavit of 6 December 2021 range from various criticisms of the High Court’s conclusions, a complaint that the applicant was forced to participate in a hearing during the COVID‑19 Level 4 lockdown and complaints about the procedure adopted during the hearing, including by way of example:
(d) At the start of the hearing, the hearing Judge asked me to start. I started with each paragraph of the Family Court’s judgment dated 22 May 2020. However, the hearing Judge said “we are not going to do each paragraph of the Family Court’s Judgment on which we were having appeal”.
The applicant goes so far as to express confidence that the High Court did not actually look at the applicant’s documents, basing that conclusion on the fact that the Judge took only a week to produce his judgment whereas the Family Court Judge “took about SIX months just to decide if I should be allowed to adduce further evidence or not”.
It is demonstrably clear from the contents of the list of the applicant’s criticisms that the object of the proposed second appeal is to revisit in large part the conclusions of the High Court and in so doing to engage in the general correction of asserted errors, primarily of fact. However we do not discern any error in the Judge’s reasons or conclusions.
We are not satisfied that the proposed appeal raises questions of either law or fact of sufficient importance to outweigh the cost and delay of a further appeal, which we infer would comprise a general traverse of the applicant’s dissatisfaction with the conclusions of two courts concerning the allocation of relationship property between himself and the respondent. That is not the role of a second appeal to this Court.
Result
The application for an adjournment is declined.
The application for leave to appeal to this Court is declined.
The applicant must pay the respondent costs on a standard application for leave on a band A basis and usual disbursements.
Solicitors:
Niemand Peebles Hoult, Hamilton for Respondent
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