Stockman v Health and Disability Commissioner

[2023] NZCA 48

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA86/2022
 [2023] NZCA 48

BETWEEN	PETER GERARD STOCKMAN Applicant
AND	HEALTH AND DISABILITY COMMISSIONER Respondent

Court:	French and Gilbert JJ
Counsel:	Applicant in person M S Smith for Respondent
Judgment: (On the papers)	8 March 2023 at 2 pm

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. For reasons given in a judgment delivered on 27 October 2022, this Court declined Mr Stockman’s application for leave to appeal against an interlocutory decision of the High Court declining his application for leave to subpoena three witnesses to give evidence at the substantive hearing of his claims against the Health and Disability Commissioner.[1]  Leave to appeal had been declined by the High Court.  This Court also declined leave because it concluded that the high threshold required for leave to appeal against an interlocutory decision had not been met.[2]  Mr Stockman is dissatisfied with this outcome and he now applies for recall of the judgment.

   [1]Stockman v Health and Disability Commissioner [2022] NZCA 511 [Court of Appeal leave judgment].

   [2]At [14].

2. The application for recall is based on Mr Stockman’s contention that the judgment was not founded in law and fact and it was likely infected by unconscious judicial bias against self-represented litigants generally and “innocent male victims of female perpetrated domestic violence” in particular.  Mr Stockman says unconscious biases appear to be widespread within New Zealand’s judiciary.  He argues that this constitutes a very special reason justifying recall of the judgment in terms of the third general category in Horowhenua County v Nash (No 2).[3] 

   [3]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

3. Alleged errors of law or fact in a judgment do not justify recall.  The judgment must speak for itself and stand for better or worse. 

4. The Court cannot yield to the unconscious bias submission.  It would require judges to recuse themselves, based on something they are not conscious of, from dealing with any case involving self-represented litigants, and probably many other cases as well.  There would be no way of resisting recusal if the mere possibility of some unconscious bias was sufficient to require it.  This is not what is contemplated by the third “very special reason” category where the exceptional step of recall could be justified.   

Result

1. The application for recall is declined.

Solicitors:
Office of the Health & Disability Commissioner | Te Toihau Hauora, Hauātanga, Wellington for Respondent