Stockman v Health and Disability Commissioner
[2022] NZCA 511
•27 October 2022 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA86/2022 [2022] NZCA 511 |
| BETWEEN | PETER GERARD STOCKMAN |
| AND | HEALTH AND DISABILITY COMMISSIONER |
| Court: | French and Gilbert JJ |
Counsel: | Applicant in person |
Judgment: | 27 October 2022 at 2 pm |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BThe applicant must pay costs to the respondent for a standard application on a band A basis and usual disbursements.
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REASONS OF THE COURT
(Given by Gilbert J)
Mr Stockman applies 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 was declined by the High Court.[2]
[1]Stockman v Health and Disability Commissioner [2021] NZHC 3280 [High Court judgment].
[2]Stockman v Health and Disability Commissioner [2022] NZHC 55.
The genesis of Mr Stockman’s substantive claims in the High Court traces back to counselling he and another party received over a decade ago, in February 2011. Mr Stockman lodged a complaint about the counsellor with the New Zealand Association of Counsellors (the Association) in June 2011. In October 2013, Mr Stockman made a complaint to the Commissioner about the way his complaint was being dealt with by the Association. The then Commissioner, Mr Hill, advised Mr Stockman that the Association was not covered by the Health and Disability Commissioner Act 1994 (the Act).
However, in August 2016, following a second complaint by Mr Stockman, the Commissioner commissioned a report from an independent adviser, Mr Milbank. He concluded that the services provided by the counsellor departed from accepted practice and appropriate standards in a number of respects. In March 2017, the then Deputy Commissioner, Ms Duggal, provided a copy of Mr Milbank’s report to Mr Stockman. She advised him of her provisional decision that further action was not warranted and set out her reasons.
Mr Stockman responded by stating that he did not accept Mr Milbank’s report. He considered Ms Duggal’s provisional decision was erroneous and should be reversed. He said he intended to issue proceedings if the Commissioner did not commence an investigation or provide sound reasons for not doing so.
A short time later, in April 2017, Mr Stockman wrote to Ms Duggal alleging bias on the part of Ms Whitelaw, the senior complaints assessor in the Commissioner’s office who had managed Mr Stockman’s complaint. Ms Duggal responded in May 2017. After addressing Mr Stockman’s allegations concerning Ms Whitelaw, she advised that she had finalised her decision to take no further action on the complaint.
In September 2018, Mr Stockman commenced proceedings in the High Court against the Commissioner, Mr Hill and Ms Duggal. Nine causes of action were initially pursued, but two have since been struck out. The first five causes of action are for judicial review. Orders are sought requiring the Commissioner to take various steps in relation to Mr Stockman’s complaints, including to commence proceedings against the counsellor for alleged breaches of the Act and the Crimes Act 1961. In his fifth cause of action, Mr Stockman seeks an order requiring the Commissioner to commence proceedings under the Act against counsel acting for the counsellor. The sixth cause of action seeks general damages of $50,000 and exemplary damages of $150,000 against the Commissioner for breach of statutory duty. The claim is that the Commissioner discriminated against Mr Stockman based on his gender. The seventh cause of action against the Commissioner seeks general damages of $50,000 and exemplary damages of $200,000 for alleged breaches of s 27 of the New Zealand Bill of Rights Act 1990. Two other causes of action alleging misfeasance in public office against the Commissioner, Mr Hill and Ms Duggal were struck out by Brewer J on 17 May 2019.[3] Mr Stockman’s appeal against that decision was dismissed by this Court on 24 November 2020.[4] The Supreme Court declined Mr Stockman’s application for leave to appeal.[5]
[3]Stockman v Health and Disability Commissioner [2019] NZHC 1098.
[4]Stockman v Health and Disability Commissioner [2020] NZCA 588.
[5]Stockman v Health and Disability Commissioner [2021] NZSC 16.
On 30 July 2021, Mr Stockman applied for leave to administer interrogatories and to issue subpoenas to Ms Duggal, Mr Milbank and Ms Whitelaw requiring them to give evidence at the substantive hearing. The applications were dismissed by van Bohemen J on 2 December 2021.[6] Mr Stockman’s present application for leave to appeal is confined to the Judge’s refusal of his application to subpoena the witnesses.
[6]High Court judgment, above n 1.
The Judge acknowledged that the High Court Rules 2016 (the Rules) do not require leave to be obtained before subpoenas may be issued.[7] Nevertheless, the Judge followed the judgment of Dobson J in NZX Ltd v Ralec Commodities Pty Ltd to the effect that a party in a civil proceeding who wishes to call oral evidence rather than provide written briefs of evidence as envisaged by the Rules must show: (1) reasonable attempts to have the witness produce a brief have been exhausted; and (2) the evidence from the proposed witness is necessary.[8] There was no evidence that Mr Stockman had made any attempt to obtain briefs from the witnesses.[9] More importantly, the Judge considered the proposed evidence from the witnesses was not necessary and should not be admitted.[10]
[7]At [59].
[8]At [59]–[60] applying NZX Ltd v Ralec Commodities Pty Ltd [2016] NZHC 799.
[9]At [61].
[10]At [62]–[68].
The Judge summarised the proposed questions Mr Stockman wishes to put to these witnesses as follows:
[68] The list of questions attached to Mr Stockman’s submissions comprises nine sets of questions for Ms Whitelaw, 27 sets of questions for Mr Milbank and 32 sets of questions for Ms Duggal. Each set has more than one question. Many sets have five or more questions. Some sets have considerably more; one set of questions for Mr Milbank has 27 questions. Some of the questions are based on Mr Stockman’s assumptions of fact but which have not been established before this Court. Many are hectoring. Many are inappropriate. In short, many of the issues Mr Stockman seeks to explore in these hypothetical questions, such as whether a witness describes themselves as a feminist, or whether a witness congratulates people who engage in stonewalling, or whether a witness accepts that it is evil for counsellors to encourage perpetrators to relentlessly abuse vulnerable victims, are inappropriate and amount to an abuse of process. They are also unnecessary for the Court to determine whether there was apparent bias or discrimination on the part of those advising the Commissioner such as to warrant an award of damages.
The Judge was satisfied that to require these witnesses to answer these questions would not only be unfair but would needlessly prolong the proceeding.[11]
[11]At [69].
Mr Stockman wishes to argue on appeal that the Judge erred in numerous respects, including:
(a)finding that he did not meet the requirements to justify the orders by way of subpoena;
(b)failing to appreciate that his claim is for actual bias;
(c)finding that the proposed questions should not be allowed on the basis they would be irrelevant, inappropriate, an abuse of process and lacking any probative value;
(d)failing to recognise the public interest in holding to account public servants who condone the encouragement of partner abuse; and
(e)failing to recognise that unlawful prolonged psychological abuse is prima facie harmful.
Mr Stockman also proposes to argue on appeal that the Judge was biased against him.
There is no right of appeal against an interlocutory judgment; such appeals may only be brought with leave.[12] The principles are well settled.[13] The threshold is high. The applicant must identify an arguable error of law or fact of sufficient importance to justify the delay and expense of an appeal. The ultimate question is whether the interests of justice are best served by granting leave.
[12]Senior Courts Act 2016, s 56(3).
[13]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
We are far from satisfied that the high threshold for leave has been met. We see no arguable error of law or fact in the High Court’s assessment of Mr Stockman’s application. Contrary to Mr Stockman’s submission, the proposed appeal does not raise any question of general or public importance. Nor has any proper basis been put forward to justify Mr Stockman’s exceptional claim that the Judge was biased against him. We do not consider the delay and expense of the proposed appeal against this interlocutory judgment can be justified in the interests of justice.
Result
The application for leave to appeal is declined.
The applicant must pay costs to the respondent for a standard application on a band A basis and usual disbursements.
Solicitors:
Office of the Health & Disability Commissioner, Wellington for Respondent
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