Supermarket mask stoush thrown out of High Court
A woman who was trespassed by two Timaru supermarkets for failing to comply with mandatory mask-wearing rules, has had her bid to have those overturned in the High Court thrown out.
Rachel Joanne Tomkinson filed a proceeding requesting a High Court judicial review of two trespass notices, of two years each for non-compliance of mask mandates – citing ‘‘freedom to practice my religious liberties under my Human Rights Act’’.
Tomkinson, who represented herself, named Countdown Timaru and New World Timaru as the defendants.
In her judgment released on October 13, Justice Rachel Dunningham unequivocally struck out the proceedings, which were referred to her under a rule used when a registrar believes the proceeding is ‘‘plainly an abuse of the process of the court’’.
The judgment says the court has an inherent power to strike out proceedings to prevent misuse of its process. Justice Dunningham suggested it appeared Tomkinson wanted to judicially review the legality of the Covid-19 order itself, and struck the proceeding out stating it would be ‘‘manifestly unfair to the named defendants if they were required to respond to these claims’’.
‘‘The supermarkets are not the appropriate respondents if (as it appears to be) her application is to judicially review the legality of the Covid-19 order itself.
‘‘All the supermarkets appear to be doing is enforcing the law as it currently stands. They did not promulgate the order which requires the wearing of masks in public places such as supermarkets, and so could not properly be named as the respondents in an application for judicial review.’’
She said ‘‘right-thinking people’’ would regard the court as exercising ‘‘very poor control of its processes’’ if it allowed Tomkinson’s one paragraph statement of claim ‘‘to be regarded as a proper document’’.
The notice of proceeding and statement of claim were filed ‘‘in proper form’’, but that the statement of claim from Tomkinson simply reads: ‘‘Plaintiff self representing for a Judicial Review for 2 trespass notices, from above supermarkets being 2 years each, for a non-compliance of mask mandates COVID 19, re freedom to practice my religious liberties under my Human Rights Act, Law of the Land.’’
Justice Dunningham said she made the assumption that Tomkinson had been banned from entering the supermarkets because she refused to wear a mask and is objecting on the grounds the rule infringes her human rights and religious beliefs. ‘‘The nexus between the requirement to wear a mask in the supermarkets in question and the impact on [Tomkinson’s] religious beliefs is not specified.’’
She said ‘‘for the proposed plaintiff’s benefit’’ if she were to try to re-instigate her proceedings against a more appropriate respondent, she would need to articulate ‘‘much more fully in her pleading, why the provisions relating to mask wearing contained in the Covid-19 Order unreasonably impinge on her freedom to practice her religion or on any other human right which she claims is unreasonably affected’’.