Stockman v Health and Disability Commissioner
[2021] NZHC 3280
•2 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2018-404-002070
[2021] NZHC 3280
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for Judicial Review and claims in tort
BETWEEN
PETER GERARD STOCKMAN
Applicant and Plaintiff
AND
THE HEALTH AND DISABILITY COMMISSIONER
Respondent and Defendant
AND
ANTHONY HILL
Second Defendant (Struck out)
AND
MEENAL DUGGAL
Third Defendant (Struck out)
Hearing: 22 October 2021 (via VMR) Appearances:
Applicant and Plaintiff in person
M S Smith for the Respondent and Defendant
G Beresford for interested non-party, Robyn GalvinJudgment:
2 December 2021
Reissued:
9 December 2021
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 2 December 2021 at 2.00pm and
re-delivered by me on 09 December 2021 in accordance with High Court Rules 2016, r 11.10
…………………………
Registrar/Deputy Registrar
STOCKMAN v THE HEALTH AND DISABILITY COMMISSIONER [2021] NZHC 3280 [2 December 2021]
Introduction
[1] Mr Stockman has applied to review decisions of the Health and Disability Commissioner (the Commissioner) made in response to complaints by Mr Stockman about the conduct of a counsellor (the Counsellor) who had been retained by Mr Stockman and a third party. Mr Stockman also seeks damages in tort from the Commissioner.
[2] Mr Stockman’s substantive application is set down for a three-day hearing commencing on 21 March 2022.
[3] Mr Stockman has applied for leave to subpoena three persons who were involved in the consideration of his complaints. He has also applied for leave to administer interrogatories to the Commissioner.
[4]The Commissioner opposes Mr Stockman’s applications.
Relevant background
[5] There is an extensive history to and voluminous correspondence about Mr Stockman’s substantive application, which dates back to events in February 2011. For present purposes it is sufficient to record the following.1
The background facts
[6]In February 2011, Mr Stockman and the third party met with the Counsellor.
[7] Following a number of sessions with the Counsellor, Mr Stockman learned that the Counsellor had been in separate communication with the third party and had been making recommendations about how the third party should conduct themselves when engaging with Mr Stockman.
1 In preparing this summary, I have drawn principally from Mr Stockman’s statement of claim and documents referred to in that statement of claim as exhibited to affidavits sworn by Mr Stockman, and also from an affidavit sworn by Amanda James, the Complaints Regulations Manager at the Commissioner’s office, and documents exhibited to that affidavit.
The complaints
[8] Mr Stockman initially lodged a complaint about the Counsellor with the New Zealand Association of Counsellors (NZAC) in June 2011. A lengthy process ensued, during which, among other things, Mr Stockman successfully brought judicial review proceedings against the NZAC.2
[9] In October 2013, Mr Stockman made a complaint (the First Complaint) to the Commissioner about the way NZAC was dealing with his complaint to it about the Counsellor. The response of the then Commissioner, Mr Anthony Hill, was that NZAC was not covered by the Health and Disability Commissioner Act 1994 (HDC Act).
[10] In February 2016, after the NZAC had itself referred Mr Stockman’s complaint to it to the Commissioner, Mr Stockman made another complaint (the Second Complaint) about the Counsellor’s actions to the Commissioner and also to the Privacy Commissioner and the Human Rights Commissioner.
[11] In August 2016, the Commissioner commissioned a report on the Second Complaint from an independent advisor, Mr Milbank (Milbank Report). The Milbank Report concluded that the counselling services provided by the Counsellor departed from the standard of care or accepted practice in a number of respects.
[12] In March 2017, the then Deputy Commissioner, Ms Meenal Duggal, provided a copy of the Milbank Report to Mr Stockman and advised him of her provisional decision that further action by the Commissioner’s office was not warranted and the reasons for that provisional decision.
[13] Mr Stockman’s reply in the same month made it clear he did not accept the Milbank Report and that Mr Stockman considered the provisional decision was based on several errors and should be reversed. Mr Stockman also said he would commence legal proceedings if the Commissioner did not an commence an investigation or provide sound reasons for not so doing.
2 See Stockman v New Zealand Association of Counsellors Inc [2013] NZHC 2267 (Peters J).
[14] In April 2017, Mr Stockman wrote to Ms Duggal alleging bias on the part of Ms Anne Whitelaw, the Senior Complaints Assessor at the Office of the Commissioner, who had managed consideration of the Second Complaint.
[15] In May 2017, Ms Duggal commented on Mr Stockman’s responses and allegations concerning Ms Whitelaw and advised that she had decided to finalise her decision to take no further action on the Second Complaint.
[16]All of Mr Stockman’s interactions with HDC staff were by correspondence.
The statement of claim
[17] Mr Stockman commenced this proceeding by statement of claim dated 24 September 2018. The statement of claim is approximately 50 pages in length and canvasses in detail the history of Mr Stockman’s complaints and how they have been dealt with by the NZAC and the Office of the Commissioner. Given the length and detail of the pleadings it is not useful or necessary to try to summarise all the issues raised. It is apparent, however, that Mr Stockman has definite views of the correctness of his actions and motivations and equally definite views of the incorrectness of the actions of others and the motivations of those with whom he has been dealing in relation to his complaints.
[18] Variously in the narrative section of the statement of claim, Mr Stockman records from his correspondence in relation to the Complaints or makes afresh statements about:
(a)The application of feminist theory to counselling practice and its polarising effect;
(b)The need to acknowledge and avoid unintentional bias and to canvass gender bias if an adviser is to provide independent advice;
(c)Society being inundated with messages about male abusers;
(d)Widely accepted feminist theory that blames the man for acts of violence regardless of the perpetrator’s gender;
(e)Feminists in multiple organisations who have been seeking to block a fair hearing of a complaint about a professional who was encouraging abuse of a male;
(f)The Milbank report being deeply biased, counsellor-centric and perpetuating taken for granted assumptions about gender roles in abuse;
(g)It appearing that Mr Stockman had been attacked and punished at the behest of a deeply bigoted feminist counsellor who had never met him;
(h)Ms Duggal’s unquestioning acceptance of [REDACTED] placed Ms Duggal alongside other feminists in positions of power in New Zealand who were using that power to obstruct the fair hearing of Mr Stockman’s complaint.
[19] The statement of claim initially alleged nine causes of action. The first seven causes of action, which are extensively pleaded, are:
(a)1st cause of action: judicial review of the Commissioner’s decision not to accept jurisdiction with respect to the First Complaint;
Relief sought: a direction to the Commissioner to act lawfully, reasonably and fairly with respect to the First Complaint;
(b)2nd cause of action: judicial review of the Commissioner’s decision to take no further action on the Second Complaint;
Relief sought: a direction to the Commissioner to commence an investigation into the Second Complaint about the Counsellor;
(c)3rd cause of action: judicial review of the Commissioner’s omission in not proactively providing natural justice to complainants;
Relief sought: a direction to the Commissioner to conduct assessments and investigations of complaints in accordance with the principles of natural justice;
(d)4th cause of action: judicial review of the Commissioner’s omission in not commencing proceedings against the Counsellor for breaches of the HDC Act and the Crimes Act 1961;
Relief sought: a direction to the Commissioner to commence proceedings against the Counsellor under the HDC Act and the Crimes Act;
(e)5th cause of action: judicial review of the Commissioner’s omission in not commencing proceedings against the Counsellor’s counsel for breaches of the HDC Act;
Relief sought: a direction to the Commissioner to commence proceedings against the Counsellor’s counsel under the HDC Act;
(f)6th cause of action: damages in tort for breach of statutory duty by the Commissioner under the Human Rights Act 1993 for discrimination against Mr Stockman based on his gender;
Relief sought: General damages of $50,000 and exemplary damages of
$150,000;
(g)7th cause of action: damages for breaches of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) by the Commissioner;
General damages from the Commissioner of $50,000 and exemplary damages of $200,000.
Interlocutory decisions on other causes of action
[20] In his statement of claim, Mr Stockman pleaded two other causes of action alleging misfeasance in public office against:
(a)The Commissioner and Mr Hill, the former Commissioner; and
(b)The Commissioner, Mr Hill and Ms Duggal.
[21] These causes of action, and Mr Hill and Ms Duggal as defendants, were struck out by Brewer J in his decision of 17 May 2019.3
[22] Mr Stockman appealed Brewer J’s decision and, in so doing, alleged that Brewer J had been biased against him because he was an unrepresented litigant and, as a result did not have a fair hearing. The Court of Appeal dismissed Mr Stockman’s appeal and recorded that there was no legitimate cause for concern that the case was considered less carefully or impartially by reason of Mr Stockman being unrepresented.4
[23] In its decision, the Court of Appeal agreed with Brewer J’s assessment that Mr Stockman’s case is predominantly a judicial review case.5 The Court also said the factual basis of each of the judicial review and tort causes of action exists within the same narrow compass.6 The Court observed that the respondents’ conduct will be known largely from uncontested affidavit evidence and that the real issues are the inferences to be drawn from that conduct, which is a matter of law.7
[24] Mr Stockman appealed the Court of Appeal’s decision. That appeal was dismissed by the Supreme Court, which held that there was nothing in the points that Mr Stockman wished to raise that would justify a further appeal.8 The Supreme Court
3 Stockman v Health and Disability Commissioner [2019] NZHC 1098 (Brewer J).
4 Stockman v Health and Disability Commissioner [2020] NZCA 588 [15].
5 At [33].
6 At [34].
7 Ibid.
8 Stockman v Health and Disability Commissioner [2021] NZSC 16 at [9].
observed that the issues were fact-specific and raised no point of public importance and there was no appearance of a miscarriage of justice.9
[25] By notice dated 30 July 2021, Mr Stockman formally discontinued the eighth and ninth causes of action.
Consideration of severance of causes of action
[26] In February 2019, before the hearing on the application to strike out Mr Hill and Ms Duggal as parties and the eighth and ninth causes of action, there was a discussion at a case management conference before Fitzgerald J about whether the non-judicial review causes of action should be severed. As recorded in Fitzgerald J’s minute of 14 February 2019, the position of counsel for the Commissioner at that time was that severance would be appropriate given that four of the then nine causes of action were claims in tort which raised practical matters such as discovery, viva-voce evidence and cross-examination.10
[27] However, Fitzgerald J was not persuaded at that stage of the proceeding that it would be more efficient to sever the two sets of claims. Her Honour observed that a possible approach might be that the evidence proceeded by way of affidavit in the normal way in a judicial review proceeding but with leave reserved to the parties to apply to cross examine a deponent on any discrete maters arising on the non-judicial review causes of action.11 Fitzgerald J noted that the position on severance might change and reserved leave to the parties to bring the question of severance back to Court if required.12
[28] In the event, neither Mr Stockman nor the Commission brought the question of severance as such back to Court. However, in the context of the current application to subpoena witnesses, Mr Stockman has proposed that half the time of the substantive hearing be allocated to the judicial review causes of action and other half to the causes
9 Ibid.
10 Stockman v Health and Disability Commissioner HC Auckland CIV 2018-404-2070, 14 February 2019 (Minute of Fitzgerald J) at [11].
11 At [12] – [13].
12 At [14].
of action seeking damages.13 No decision has been taken on that proposal which is contingent on the outcome of the current applications.
The Commissioner’s decisions not to pursue criminal proceedings
[29] On 10 June 2021, the Commissioner formally decided, in a Decision Minute, not to pursue criminal proceedings against the Counsellor and the Counsellor’s counsel. The Decision Minute refers to the allegations in Mr Stockman’s statement of claim concerning breaches of the HDC Act and the Crimes Act and the directions Mr Stockman has sought with respect to those matters.
[30] The Decision Minute records the decision not to commence criminal proceedings against the Counsellor or her counsel and records that the Commissioner was satisfied that the test for prosecution as contained in the Solicitor-General’s Prosecution Guidelines (Prosecution Guidelines) had not been met.14 It also records that the Commissioner made her decision having regard to the material Mr Stockman has put forward in this proceeding, relevant complaint files in the Commissioner’s office, the Prosecution Guidelines and privileged legal advice.
Mr Stockman’s applications
[31] On 5 July 2021, Mr Stockman filed a notice for the Commissioner to answer interrogatories.
[32]The notice lists:
(a)18 questions relating to the Commissioner’s decision not to commence criminal proceedings against the Counsellor; and
(b)15 questions relating to the Commissioner’s decision not to commence criminal proceedings against the Counsellor’s counsel.
13 See Mr Stockman’s Memorandum seeking orders, dated 7 July 2021.
14 Solicitor-General’s Prosecution Guidelines (Crown Law Office, 1 July 2013).
[33] Among other things, the questions ask whether the Commissioner had found that the Counsellor had falsified her clinical notes and that the Counsellor, and her counsel had given information to the Commissioner that was false or misleading. The remaining questions appear to have been framed by reference to the Prosecution Guidelines.
[34] On 30 July 2021 and in accordance with directions I made at a case management conference on 15 July 2021,15 Mr Stockman formally applied for leave to administer the interrogatories. He also applied for leave to subpoena Ms Duggal, Mr Milbank and Ms Whitelaw.
[35] The grounds for the application for leave to administer interrogatories include that, by deciding not to commence proceedings against the Counsellor and her counsel, the Commissioner abruptly changed the course of the proceeding and that the Commissioner failed to record findings of fact or to provide reasons for the decisions, which had implications for the second, third, fourth and fifth causes of action and was in breach of the Commissioner’s duty of candour.
[36]The grounds for seeking leave to subpoena witnesses include that:
(a)the witnesses are called to give evidence about their alleged bias that underpins the sixth and seventh causes of action;
(b)the witnesses’ evidence is necessary in establishing if Mr Stockman received less favourable service because he is a man;
(c)oral evidence would allow the Court to more satisfactorily assess the credibility of the witnesses and would more cogently support an award of damages than less compelling inferred bias and inferred discrimination drawn from the existing evidence; and;
15 Stockman v Health and Disability Commissioner HC Auckland CIV 2018-404-2070, 15 July 2021 (Minute of van Bohemen J).
(d)the evidence of bias must be heard directly by the Court if Mr Stockman is to have a fair opportunity to overcome the dual impediments of being a male victim of abuse and a litigant in person.
Mr Stockman’s submissions
Application for leave to subpoena witnesses
[37] Mr Stockman says he wishes to put forward additional evidence of discriminatory bias by the witnesses in order to support his claims for damages in tort and public law damages under the sixth and seventh causes of action. Mr Stockman says he is not seeking to adduce this evidence in relation to the judicial review causes of action.
[38] Mr Stockman refers to Fitzgerald J’s minute of 14 February 2019 which foresaw the possibility of different procedures being used to cross-examine witnesses in the non-judicial review causes of action. Mr Stockman asserts that he has a right to subpoena witnesses in relation to the non-judicial review causes of action, as recognised by Heath J in Orlov v New Zealand Law Society (Auckland Branch) (No 5),16 and confirmed by the Court of Appeal.17
[39] Mr Stockman submits that he can satisfy the test for granting leave to subpoena witnesses set out by Dobson J in NZX Ltd v Ralec Commodities Pty Ltd,18 as demonstrated by the list of questions appended to his submissions and which he wishes to put to the witnesses.
[40] Mr Stockman says this evidence is necessary because, among other things, the answers will be probative in tending to prove or disprove whether the witnesses acted with bias and will provide the Court with direct rather than indirect evidence of bias. Mr Stockman says that the proposed evidence would not have a prejudicial effect on the proceeding but not hearing the evidence would prejudice him by limiting his capacity to evince bias.
16 Orlov v New Zealand Law Society (Auckland Branch) (No 5) (2011) 21 PRNZ 52 at [18].
17 Orlov v New Zealand Law Society [2012] NZCA 12 at [28].
18 NZX Ltd v Ralec Commodities Pty Ltd [2016] NZHC 799.
[41] Mr Stockman says that because he is calling the witnesses to attempt to elicit bias on their part, the witnesses can be seen to be prima facie hostile. However, he says it is unnecessary at this stage to decide whether he should be allowed to ask them leading questions.
Application for leave to administer interrogatories
[42] In his application for leave to administer interrogatories, Mr Stockman says the Commissioner’s Decision Minute states bare conclusions and does not provide reasons. Mr Stockman submits that the proposed interrogatories are appropriate, relevant and necessary to fairly dispose of the proceedings in accordance with the approach taken by the High Court in Deliu v New Zealand Law Society.19 He says the reasons for the Commissioner’s decisions are self-evidently relevant to the sixth and seventh causes of action, and that it is appropriate that the reasons for those decisions are provided in accordance with good administrative practice as set out in the Ombudsman’s Guide to Good Decision-making.20
[43] Mr Stockman also refers to a number of decisions, including that of the Supreme Court of Ireland in Mallak v Minister for Justice, Equality and Law Reform,21 as well as the decision of the Court of Appeal in Lewis v Wilson & Horton,22 as confirming judicial recognition of the need to provide reasons. He also takes issue with the Commissioner’s claim to legal privilege in respect of some documents. Mr Stockman also says the Commissioner’s failure to provide reasons is inconsistent with the Commissioner’s common law duty of candour.
[44] In response to the written submissions filed in advance of the hearing by counsel for the Commissioner, Mr Stockman also submits that the present case is sufficiently analogous to Wallace v Attorney-General where it was held that the Solicitor-General should have given reasons for declining to prosecute a police constable in relation to the death of Mr Wallace,23 to require the Commissioner to answer the interrogatories.
19 Deliu v New Zealand Law Society [2013] NZHC 1584 at [47].
20 Guide to Good Decision Making (Office of the Ombudsman, 1 October 2012).
21 Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59.
22 Lewis v Wilson & Horton [2000] 3 NZLR 546 (CA).
23 Wallace v Attorney-General [2021] NZHC 1963 at [647].
[45] Lastly, and by way of overall comment, Mr Stockman submits that the issues he raises are matters of life and death and that the overarching issue before the Court is how society treats male victims of abuse. In that regard, Mr Stockman refers to the number of men who took their own life last year and implies that some of these deaths were the result of a commonly held contempt towards male victims of abuse.
Submissions on behalf of the Commissioner
Application for leave to issue subpoenas
[46] Mr Smith, counsel for the Commissioner, submits that leave to issue the subpoenas should be refused for four reasons.
[47] First, there can be no presumption that the witnesses will be hostile, and Mr Stockman cannot presume to cross-examine the witnesses as his proposed questions show to be his intention. In addition, the Court of Appeal struck out the claim against Ms Duggal on the basis that she enjoys a statutory right of immunity from suit. To allow Mr Stockman to bring Ms Duggal back into the proceeding by way of subpoena would be wrong in principle and contrary to the interests of justice.
[48] Secondly, Mr Stockman proposes to call the witnesses to put to them that they acted in a way that was biased against or discriminatory of him. The Courts have questioned the utility of such questions and, as in Mary Moodie Family Trust Board (Inc) v Attorney-General, have held that the fact a decision-maker reaches a decision with which another party disagrees does not provide a sound basis for establishing bias.24
[49] Thirdly, in accordance with well-established principles of administrative law, the record should speak for itself and the Court has powers to make factual findings or reach inferences adverse to the decision-maker based on the record. As Katz J observed, it would only be in an exceptional case that it would be appropriate to compel the presence of a decision-maker in judicial review proceedings.25
24 Mary Moodie Family Trust Board (Inc) v Attorney-General [2015] NZHC 365 at [183].
25 Deliu v New Zealand Law Society [2014] NZHC 2597 at [18].
[50] Fourthly, Mr Stockman has not identified the relevance of the proposed questions to particular pleadings that remain in issue and has not detailed the evidence he expects the witnesses to give. These omissions breach r 9.7(6)(iii)-(v) of the High Court Rules 2016.
Application for leave to administer interrogatories
[51] Mr Smith submits that leave should not be given to administer the proposed interrogatories for three reasons.
[52] First, the Commissioner has provided reasons for the decisions in her Decision Minute. Mr Stockman has not put the sufficiency of those reasons in issue by amending his pleadings but is pursuing the interrogatories for the purpose of identifying further grounds for reviewing the Commissioner’s decision.
[53] Secondly, the interrogatories are inappropriate because Mr Stockman is using the interrogatory process to require the Commissioner to justify her case, which is not appropriate, as recognised by Campbell J in Wright v Attorney-General.26
[54] Thirdly, there is no general duty to give reasons for all or even most decisions not to prosecute – as Ellis J observed in Wallace v Attorney-General and it was only in the “possibly unique” circumstances of that case that such a duty was held to have arisen.27 Mr Smith says the present circumstances are very different from those in Wallace. Mr Smith also submits that Mr Stockman’s application is analogous to that considered by Whata J in Deep v Auckland Co-operative Taxi Society Ltd where an application for discovery was dismissed because, among other things, it amounted to an effort to secure by way of discovery what the plaintiff might not achieve in the result.28
26 Wright v Attorney-General 2021] NZHC 1478 at [48].
27 Wallace v Attorney-General, above n 23, at [615].
28 Deep v Auckland Co-operative Taxi Society Ltd [2018] NZHC 2362 at [12].
Analysis
[55] Before discussing the substance of Mr Stockman’s case, it is appropriate to record that, at the start of the hearing on 22 October 2021, Mr Stockman addressed me on my bias and my conflict of interest. Because of a malfunction in the Court’s recording system, Mr Stockman’s presentation on those issues was not recorded. As I undertook to Mr Stockman at the time, however, I have recorded my notes of Mr Stockman’s observations in a minute I made that day but which I am issuing with this judgment.29 I make no comment on Mr Stockman’s observations except to record that I consider them inappropriate and irrelevant to the questions I am to decide.
Application for leave to subpoena witnesses
[56] Although Mr Stockman says his application to subpoena witnesses is limited to the damages claims under the sixth and seventh causes of action and is not being adduced in support of the judicial review causes of action in the first to fifth causes of action, analysis of his statement of claim shows that it is not possible to keep the causes of action separate.
[57] In the narrative section of the Statement of Claim, Mr Stockman makes numerous references to alleged bias or discrimination on the part of the Commissioner’s staff and Mr Milbank, including that they are adherents or supporters of feminist theory in counselling practice, and related inappropriate behaviour. Examples are contained at least in paragraphs 46(e); 51(f); 55(f), (g) and (i); 62(m); 76(a), (f), (i), (q), (r) and (x); 78(a), (c), (d); 81(d), (f), (k) and 83 of the Statement of Claim. While Mr Stockman relies only on paragraphs 1 to 35 of the Statement of Claim for his first cause of action, he relies on all of paragraphs 1 to 83 for the remaining causes of action (and even more paragraphs for the seventh cause of action). In addition, Mr Stockman specifically alleges bias or discrimination in relation to the second cause of action (paragraphs 88(d) and 91) and the third cause of action (paragraphs 94, 96, and 106).
29 Stockman v Health and Disability Commissioner HC Auckland CIV 2018-404-2070, 22 October 2021 (Minute of van Bohemen J).
[58] More generally, it is the actions of Ms Duggal and Mr Milbank in particular, and also those of Ms Whitelaw, that are the subject of Mr Stockman’s allegations in relation to the second, third, sixth and seventh causes of action. In other words, the facts are common to all of those causes of action. This confirms that, as the Court of Appeal observed, the factual basis of the judicial review and tort causes of action exists within the same narrow compass.30
[59] While, as the Court of Appeal acknowledged in Orlov, an applicant in an ordinary proceeding has a right to call witnesses, that right must be exercised in accordance with the High Court Rules and relevant authorities. While the Rules do not specifically provide that leave must be obtained before subpoenas may be issued, in Ralec Commodities, Dobson J set out the questions to be considered in circumstances where an applicant in a civil proceeding wishes to call oral evidence rather than proceed by way of briefs of evidence as envisaged by the Rules.
[60]Dobson J considered there were two questions to be considered:31
(a)Has the applicant exhausted reasonable attempts to have the witness produce a brief?
(b)Is evidence from the proposed witness necessary?
[61] There is no evidence that Mr Stockman has made any attempt to obtain, let alone exhausted reasonable attempts to obtain, briefs from the witnesses. Rather, Mr Stockman says he will attempt to elicit either affidavit evidence or evidence in chief after I have granted leave. That reverses the order envisaged by Dobson J and means Mr Stockman has not satisfied the first question.
[62] However, consideration of the second question is determinative. It is plain that the evidence is not necessary and should not be admitted.
30 Stockman v Health and Disability Commissioner, above n 4, at [34].
31 NZX Ltd v Ralec Commodities Pty Ltd, above n 18, at [15] – [18].
[63] Mr Stockman’s statement of claim is founded entirely on documentary evidence. Mr Stockman alleges no direct personal dealings with the Commissioner, Ms Duggal, Mr Milbank or Ms Whitelaw. Mr Stockman’s allegations of bias and discrimination are not based on any interests that Ms Duggal, Mr Milbank or Ms Whitelaw may hold outside their professional roles or on views they have expressed in their professional roles other than in documents relating to the Complaints. The allegations are based entirely on Mr Stockman’s interpretation of correspondence, including the reports and decisions on the Complaints.
[64] As the Supreme Court confirmed in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, the test for apparent bias is whether a fair-minded lay observer would reasonably apprehend that a decision-maker might not bring a fair mind to the question they are to decide.32 The Court went on to observe that:
[5] The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias.
(footnotes omitted)
[65] While the Supreme Court’s observations were made in relation to apparent bias on the part of a judge, they establish that to prove bias or discrimination on the part of Ms Duggal, Mr Milbank or Ms Whitelaw, Mr Stockman will have to persuade the Court that an intelligent, objective and fair-minded lay observer, who is reasonably informed about the workings of the Commissioner’s complaints process and about the issues in the case and facts which are said to give rise to an appearance of bias, will be satisfied that there was bias on the part of one or more of those individuals. Since Mr Stockman bases his allegations on the documents he has put in issue, those documents can be the only relevant basis from which a fair-minded lay observer can assess the appearance of bias.
32 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [43].
[66] As Dobson J observed in Ralec Commodities, ss 7 and 8 of the Evidence Act 2006 establish the basic requirements that evidence has to be relevant to be admissible and that a judge must exclude evidence if its probative value is outweighed by a risk that the evidence will have an unduly prejudicial effect on the proceeding or will needlessly prolong the proceeding.33 Where the case as set out in the pleadings is based on documentary evidence, I do not consider that viva voce evidence aimed at establishing the subjective state of mind of those involved in the preparation of the documents is relevant or probative of apparent bias.
[67] Even if the evidence were relevant or probative, I am satisfied that it should be excluded.
[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.
[69] I am satisfied that to require the witnesses Mr Stockman wishes to call to answer these issues would be unfair and prejudicial to those witnesses and would needlessly prolong the proceeding.
33 NZX Ltd v Ralec Commodities Pty Ltd, above n 18, at [18].
[70] Accordingly, I decline leave to Mr Stockman to issue subpoenas to Ms Duggal, Mr Milbank or Ms Whitelaw and direct the Registrar that no such subpoenas are to be issued.
Application for leave to administer interrogatories
[71] It is apparent that Mr Stockman’s application for leave to administer interrogatories to the Commissioner is based on an assumption that a decision to prosecute or not to prosecute is the same as or similar to any other administrative decision for which reasons should be given in accordance with the guidance in the Ombudsman’s Guide to Good Decision Making. That assumption is not correct.
[72] The nature of prosecutorial decisions and the approach that Courts take to applications to review such decisions was set out by the Court of Appeal in Fox v Attorney-General where McGrath J, on behalf of the Court said:34
[28] In our system of government the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is part of the function of executive government rather than the courts. That allocation of the function recognises the governmental interest in seeing that justice is done and community expectations that criminal offenders are brought to justice are met.
[29] There are various mechanisms for the accountability of those making prosecutorial decisions within structures of government and as part of the government's own responsibility to the House of Representatives. These apply whether prosecution decisions are taken by law enforcement agencies such as the Police, the Serious Fraud Office, or other government departments or public agencies, or by the Law Officers of the Crown, the Attorney-General and Solicitor-General, who have an overall responsibility for prosecution processes. … In all cases independence from political direction of prosecutorial decision making is an established constitutional practice in New Zealand. …
[30] A decision by a public official to prosecute in any case involves the exercise of a discretionary public power. There are prosecution guidelines issued by the Solicitor-General which discuss that discretion and indicate how it is to be exercised. The current Prosecution Guidelines are reproduced in Criminal Prosecution (NZ Law Commission Preliminary Paper 28 (1997), Appendix B). When considering whether to prosecute para 3 of the Law Commission paper states “there are two major factors to be considered: evidential sufficiency and the public interest”. The latter aspect requires consideration of “whether, given that an evidential basis for the prosecution exists, the public interest requires the prosecution to proceed” (Para 3.3.1).
34 Fox v Attorney-General [2002] 3 NZLR 62 (CA).
[31] The courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the court's own function of responsibility for conduct of criminal trials. This reluctance to interfere on the ground that the prosecution is thought to be inappropriate is widely apparent in the common law jurisdictions …
[73] It is plain, therefore, that prosecutorial decisions, whether exercised by the Solicitor-General, the Police or the Commissioner in accordance with the HDC Act, are in a different category from other administrative decisions and will be interfered with only in exceptional circumstances because of the high content of judgment and discretion in such decisions.
[74] In Osborne v Worksafe New Zealand, the Court of Appeal held that such decisions are justiciable, although the intensity of review and the availability of relief will be constrained.35 The Court also said that, absent an abdication of discretion by the prosecuting authority, relief is likely only in exceptional cases.36 However, the Court also held that the considerations are different where the decision challenged is not to prosecute, as compared with a decision to prosecute, and referred to the observations of the Divisional Court of the High Court of Justice of England and Wales in R v Director of Public Prosecutions, Ex parte Manning, where Lord Bingham CJ and Morison J held the decision not to prosecute was susceptible to judicial review, but that the power was to be sparingly exercised due to matters of constitutional policy and the high level of judgment and discretion involved.37
[75] The Court of Appeal in Osborne confirmed that judicial review of a decision not to prosecute may be advanced on grounds other than abdication of discretion and may include failure to take into account relevant considerations and the consideration of irrelevancies.38 It also noted that there is a line of primarily English cases in which the contemplated grounds for review have included a failure to comply with prosecutorial guidelines, failure to consider relevant factual considerations, failure to
35 Osborne v Worksafe New Zealand [2017] NZCA 11 at [34] – [35].
36 At [35].
37 At [37]; citing R v Director of Public Prosecutions, Ex parte Manning [2001] QB 330 at [23].
38 Osborne v Worksafe New Zealand, above n 35, at [40].
give reasons, failure to have regard to relevant considerations, considering irrelevant matters, error of law, and unreasonableness or perversity.39
[76] In Osborne, the Court of Appeal did not discuss further whether failure to give reasons is itself a ground for review in New Zealand but referred with approval to the decision in Manning where that had been the primary ground of review. In that decision, the Court accepted that there was no absolute and unqualified obligation to provide reasons for a decision not to prosecute.40 However, the Court considered that in the circumstances of that case it would expect reasons to be given in the absence of compelling grounds for not doing so.41
[77] The circumstances in Manning were particular. A prisoner had died in custody after being forcibly removed from his cell by prison officers in the course of a search for drugs. The prisoner died of asphyxia while being restrained around the neck by an identified prison officer. An inquest was held at which the jury returned a verdict of unlawful killing. That verdict was not challenged. Even so, a decision was taken not to prosecute any of the prison officers concerned. The Court stated:42
But the right to life is the most fundamental of all human rights. … The death of a person in the custody of the state must always arouse concern, … and if the death resulted from violence inflicted by agents of the state that concern must be profound. … Where … an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known. the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision … .
[78] The Court noted that the number of cases in which such an obligation would arise would be very small and would be confined to those involving similar circumstances.43
39 Ibid.
40 R v Director of Public Prosecutions, ex parte Manning, above n 37 at [33].
41 Ibid.
42 Ibid.
43 Ibid.
[79] In Wallace v Attorney-General, Ellis J discussed Manning, which Ellis J considered to be the judicial highwater mark in relation to the giving of reasons for a decision not to prosecute.44 By reference to that decision and, in particular to the passage quoted at [77] above, Ellis J considered that reasons should have been provided in the case before her. Ellis J referred to the fact that, as in Manning, the case involved the death of an individual at the hands of an agent of the state, which directly engaged the right to life. In addition, there had been a decision by the then Chief Justice to allow a private prosecution of one of the police officers involved in Mr Wallace’s death in which the Chief Justice had observed that a jury could properly decide that the force used by the police officer had not been reasonable. For these and other reasons, Ellis J held that the Solicitor-General should have provided reasons for her decision not to prosecute.45 Ellis J also held that the reasons given had not been adequate.46 By way of relief, Ellis J made a declaration that the Solicitor-General should have given reasons for declining to prosecute the police officer concerned.47
[80] However, as Mr Smith has pointed out, Ellis J was careful to record that her conclusion that reasons were required in that case did not mean that there is a duty to give reasons for all or even most decisions not to prosecute or that, in cases where reasons are not required, those reasons need to be made public.48
[81] Despite Mr Stockman’s attempt to characterise his application as raising matters of life and death, I am satisfied that his situation is very far from those considered in Manning and Wallace. No one has died. The right to life is not engaged. No agent of the state is implicated in the harm alleged by Mr Stockman. Mr Stockman’s complaints relate to the actions of a Counsellor. While Mr Stockman alleges bias, discrimination and, in effect, misconduct on the part of Ms Duggal and Ms Whitelaw, that has not been proven. There has been no independent determination of the background facts such as the inquest held in Manning or any judicial hearing as in Wallace. All that has been established so far is that the Deputy Commissioner has been satisfied, after considering all of the information before her, that further action
44 Wallace v Attorney-General, above n 23, at [600].
45 At [603] – [606].
46 At [607] – [613].
47 At [646].
48 At [615].
on Mr Stockman’s complaints was not warranted. There is nothing in that decision to give rise to any expectation that criminal proceedings would follow.
[82] For these reasons, I consider it highly unlikely that any court would find that this is one of those rare cases where there was an evident obligation on the Commissioner to give reasons for her decision not to bring criminal proceedings beyond those provided in the Decision Minute. However, that will be a matter for determination by the Court considering Mr Stockman’s substantive application.
[83] If the Court decides that it is indeed one of those rare cases, it will also be for that Court to decide what relief should be granted. Relief may extend to a direction to the Commissioner to provide more extensive reasons. The Court may, however, simply make a declaration that reasons should have been given, similar to the declaration made by Ellis J in Wallace. Given the observations of the Court of Appeal in Osborne, the Court may decide that relief is not warranted.
[84] In these respects, I agree with the submission by Mr Smith that Mr Stockman’s application to administer interrogatories is analogous to that considered by Whata J in Deep v Auckland Co-operative Taxi Society Ltd.49 Mr Stockman is looking to achieve by his application to administer interrogatories that which he might not achieve in his substantive application. Indeed, for the reasons given, I consider it unlikely that Mr Stockman will achieve such a result. In particular, I consider it unlikely that the Court would hold that the Commissioner was under an obligation to provide a point by point explanation of the decision not to bring criminal proceedings by reference to the Guidelines, as Mr Stockman wishes to obtain through the interrogatories he seeks to administer.
[85] For all these reasons, I am satisfied that Mr Stockman’s application for leave to administer interrogatories is inappropriate and should be dismissed.
49 Deep v Auckland Co-operative Taxi Society Ltd, above n 28, at [12].
Result
[86] I dismiss Mr Stockman’s applications for leave to subpoena witnesses and for leave to administer interrogatories to the Commissioner.
Costs
[87] The Commissioner is entitled to costs on a 2B basis plus reasonable disbursements.
[88] If the parties are unable to agree costs, they are to file and serve memoranda of no more than five pages.
[89] If the Commissioner files a memorandum, any memorandum in reply from Mr Stockman is to be filed and served within 10 working days.
G J van Bohemen J
Counsel/solicitors:
M S Smith, Barrister, Wellington Kennedys, Solicitors, Auckland
Copy to the Applicant
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