Stockman v New Zealand Association of Counsellors Incorporated

[2018] NZCA 532

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA493/2018
 [2018] NZCA 532

BETWEEN	PETER GERARD STOCKMAN Applicant
AND	NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED Respondent

Court:	Brown and Clifford JJ
Counsel:	Applicant in person C Heaton for Respondent
Judgment: (On the papers)	29 November 2018 at 10.30 am

JUDGMENT OF THE COURT

A        The application for leave to appeal is declined. 

B        The application for name suppression is declined.

C        There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. Mr Stockman applies for leave to appeal from a decision of Cull J in the High Court declining to recuse herself.[1]  He also applies for name suppression.

Background

[1]Stockman v New Zealand Assoc of Counsellors Inc [2017] NZHC 2223 [recusal decision].

1. The background can be summarised briefly.  Mr Stockman laid a complaint about counselling services he received from a member of the respondent association, the New Zealand Assoc of Counsellors Inc (NZACI).  NZACI dealt with his complaint but not to Mr Stockman’s satisfaction, so he commenced proceedings in the High Court.  NZACI applied for a stay, on the basis the allegations in the statement of claim were not reasonably arguable.  The Judge adjourned the hearing so that Mr Stockman could reconsider or amend his statement of claim, not being prepared to grant a stay or strike out without giving such an opportunity to Mr Stockman.[2]  Mr Stockman then filed an application for Cull J’s recusal.  This was declined.[3]  Cull J then declined leave to appeal under s 56(3) of the Senior Courts Act 2016.[4]  Mr Stockman now applies for leave to appeal under s 56(5) of the Senior Courts Act.

Submissions

[2]Stockman v New Zealand Assoc of Counsellors Inc HC Wellington CIV-2017-485-325, 23 August 2017 (Minute) [adjournment decision].

[3]Recusal decision, above n 1. 

[4]Stockman v New Zealand Assoc of Counsellors Inc [2018] NZHC 1902 [leave decision].

1. The application for leave to appeal is advanced on the basis that the Judge erred in fact and law in declining to recuse herself.  Mr Stockman says the Judge is biased on a number of counts.  First, he says that the Judge prejudged the merits by suggesting causes of action six to eight in the statement of claim were doomed and should be dropped off.  The Judge also failed to read his written submissions and listen to his oral submissions.  Secondly, he says the Judge is prejudiced against self-represented litigants and has a vested interest in keeping time-consuming self-represented litigants out of the courts.  Finally, Mr Stockman points to the Judge’s role, before her appointment, as expert advisor to the Law Commission’s Understanding Family Violence — Reforming the Criminal Law Relating to Homicide Report.[5]  Given the nature of the allegations raised in the statement of claim, Mr Stockman says the Judge’s continued involvement in the current proceedings is unsustainable.

   [5]Law Commission Understanding Family Violence — Reforming the Criminal Law Relating to Homicide (NZLC R139, 2015).

2. The respondent abides the decision of the Court.

Analysis

1. We are satisfied there is nothing in the proposed appeal.  First, the Judge’s suggestion that the cause of action be refined was merely an indication of a preliminary view.  Some predisposition or inclination toward an argument or conclusion is tolerable.[6]  A preliminary view would need to be expressed in an extreme and unbalanced way to disqualify a judge.[7]  That is a far cry from this case.  It is clear that Cull J was simply trying to assist Mr Stockman to refine his pleadings. 

   [6]A (SC106/2015) v R [2016] NZSC 31 at [22]; relying on Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at 532.

   [7]A (SC106/2015) v R, above n 6, at [25].

2. Secondly, Mr Stockman’s allegations of bias arising out of Cull J’s prior involvement with the Law Commission are also unmeritorious.  To the extent they require a reply, the Supreme Court’s decision in A (SC106/2015) v R provides the answer.  The Supreme Court refers to the England and Wales Court of Appeal’s decision in Locabail (UK) Ltd v Bayfield Properties Ltd, where it was noted that “at any rate ordinarily” no objection could be soundly based on extracurricular utterances by judges, including in textbooks, lectures, speeches and articles.[8]

A final matter

[8]At [24], citing Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA) at 480.

1. The final question is whether Mr Stockman’s application for name suppression ought to be granted.  The application is advanced on the basis that publication of Mr Stockman’s name will likely identify a third party.  We note that, in separate proceedings, that third party’s name has been suppressed, although Mr Stockman’s was not.[9] 

   [9]Stockman v New Zealand Assoc of Counsellors Inc [2013] NZHC 2267; aff’d [2015] NZCA 542.

2. These are separate proceedings.  No order was sought in the current High Court proceedings for the suppression of the third party’s name.  Similarly, no order was sought in the High Court for the suppression of Mr Stockman’s name.  It is open to Mr Stockman to apply to the High Court for suppression of either his name or the third party’s name.  In the meantime, and in all these circumstances, we decline to grant name suppression.

Result

1. The application for leave to appeal is declined. 

2. The application for name suppression is declined.

3. There is no order for costs.

Solicitors:
Morrison Kent, Wellington for Respondent