Stockman v New Zealand Association of Counsellors Incorporated

[2019] NZHC 3047

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-325

[2019] NZHC 3047

BETWEEN

PETER GERARD STOCKMAN

Plaintiff

AND

NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED

Defendant

Hearing:	7 November 2019
Counsel:	P G Stockman, plaintiff in person M R Wolff for defendant
Judgment:	21 November 2019

JUDGMENT OF COOKE J

(Application for a stay)

[1]    By statement of claim dated 12 April 2017 the plaintiff, Mr Stockman, pursues a number of causes of action against the New Zealand Association of Counsellors Inc. The claims arise from relationship counselling that the plaintiff and his wife engaged in, and a subsequent complaint made by the plaintiff to the defendant in June 2011 that there was misconduct by the counsellor involved. The first cause of action is an application for a judicial review which focuses on allegations of breaches of natural justice in the procedures followed by the defendant in dealing with the complaint. But there are other causes of action in tort, for example, a claim for misfeasance in a public office.

[2]    Rather than filing a statement of defence, the defendant filed and served an application dated 17 May 2017 for an order staying the proceedings. This was opposed by the plaintiff.  This is the application that is now before the Court.  I explain below

STOCKMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED [2019] NZHC 3047
[21 November 2019]

why it has been nearly two and a half years for the application to be substantively heard and determined.

[3]    The essence of the stay application is that the plaintiff’s claim is not properly pleaded in accordance with the High Court Rules 2016, and the defendant cannot be expected to respond to it.

[4]    For the reasons explained below I have decided not to grant the stay in the form sought, but rather direct that the judicial review claims advanced by Mr Stockman be given a hearing, and that that hearing also address an anticipated application by the defendant to strike out the balance of the claims advanced against it that are foreshadowed in its stay arguments. I give directions to allow that hearing to take place. Apart from complying with those directions the tortious claims advanced by Mr Stockman will be stayed pending that hearing.

Background to hearing of present application

[5]    This stay application was originally heard by Cull J on 23 August 2017. After discussing the position with the parties at the hearing, Cull J adjourned the proceeding to give Mr Stockman the opportunity to take legal advice and amend his statement of claim. She directed when that amended pleading was to be filed, and when the defendant was to file a statement of defence in response.

[6]    Mr Stockman then made an application that Cull J be recused from hearing the proceedings. By judgment dated 30 October 2017 Cull J dismissed that application after hearing from the parties.1

[7]    Mr Stockman then applied for leave to appeal this judgment to the Court of Appeal. By judgment dated 30 July 2018 Cull J dismissed that application.2

[8]    Mr Stockman then applied to the Court of Appeal for leave to appeal. By judgment dated 29 November 2018 the Court of Appeal declined that application.3 It

1      Stockman v New Zealand Association of Counsellors Inc [2017] NZHC 2223.

2      Stockman v New Zealand Association of Counsellors Inc [2018] NZHC 1902.

3      Stockman v New Zealand Association of Counsellors Inc [2018] NZCA 532.

would appear that following that determination steps were still taken in the Court of Appeal, including an application that that Court recall its judgment.

[9]    The defendant then advised it wished to proceed with its original stay application. At a hearing before the Associate Judge on 4 September 2019 directions were given in relation to that application. This is the proceeding before me.

The arguments advanced

[10]   Written submissions were earlier filed in relation to the application in 2017 and formed the basis of the hearing before me.

[11]   The key elements of the defendant’s application are summarised in the notice of application in the following way:

(a)The respondent’s application for review and statement of claim dated 12 April 2017 (“the pleading”) is prolix (177 paragraphs) and ill- drafted to such a degree that it is impossible for the applicant to respond to it as required by High Court Rule (HCR) 5.48;

(b)The pleading in its current form is likely to cause prejudice or delay (r 15.1(1)(b)) or is otherwise an abuse of the court (r 15.1(1)(d));

(c)The pleading contains large tracts of factual material and the material facts are difficult to discern;

(d)Much of the factual material pleaded is irrelevant, provides excessive detail, or is evidence rather than pleading;

(e)The pleading includes legal, policy and academic submissions;

(e) The pleading refers to matters protected by privilege (Human Rights Commission mediation on 21 August 2014, paragraphs 40, 132, 135)

(g)The pleading falls to comply with HCR 5.26 in that:

(i)It does not give sufficient particulars of time, place and names of persons and other circumstances to inform the Court and the applicant of the respondent's causes of action; ·

(ii)It does not set out all the elements of the causes of action;

(iii)It is not clear and intelligible;

[12]   These matters were responded to in Mr Stockman’s written submissions, and in his oral submissions he addressed each of the above paragraphs in the notice of application and provided his response.

[13]   There is no dispute in terms of the requirements for pleadings. In Commissioner of Inland Revenue v Chesterfields Preschools Ltd the Court of Appeal summarised the position in the following way:4

[84]      The procedural requirements for statements of claim are spelled out in the HCR. For present purposes r 5.17 (distinct matter to be stated separately), r 5.26 (statement of claim to show nature of claim) and r 5.27 (statement of claim to specify relief sought) describe the key principles. In summary they are:

·     The pleading must be accurate, clear and intelligible.

·     Sufficient particulars must be given to enable the defendant to be fairly informed of the case to be met.

·     While adequate particulars are required, the statement of claim must not stray into setting out the evidence relied upon.

·     Separate causes of action must be separately stated.

·     The pleading should set out all the elements of the cause of action (in this case misfeasance).

·     The relief sought must be clearly pleaded in respect of each cause of action and, where there is more than one plaintiff and multiple defendants, the relief sought by each plaintiff against each defendant must be clearly stated.

[85]This Court in Hopper Group Ltd v Parker put it as follows:5

One essential part of pleadings is to state precisely the basic facts on which the plaintiff relies so as to clearly define the issues which the defendant has to meet. If that is not done, it is difficult for a defendant to prepare for trial and questions such as payment into Court or offers of settlement can hardly be considered. Furthermore, if the case goes to trial without precise pleadings, much time can be wasted and a defendant might be taken by surprise when the real issue not previously stated clearly suddenly emerges.

4      Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679.

5      Hopper Group Ltd v Parker (1987) 1 PRNZ 363 (CA) at 366.

[14]   In Mr Stockman’s careful submissions he accepted that this was an accurate summary of the principles, but said that the statement of claim here met the requirements, or if it did not that was only in respect of more minor or technical matters. Mr Stockman also emphasised, and I accept, that litigants in person are entitled to a degree of latitude in terms of the technical rules. This should not be to the point where the self-represented litigant is being given an unfair advantage, or so that the Judge effectively conducts the case on behalf of the litigant. But it is important that litigants in person are able to exercise the right of access to the Court without procedural points preventing their substantive grievances from being addressed.6

Assessment

[15]   I accept that there is substance to some of the defendant’s criticisms of the presently formulated statement of claim. In particular the statement of claim is unnecessarily long and involves pleading evidence rather than the matters going to the elements of the causes of action, and some of the paragraphs are also argumentative.

[16]   Mr Stockman accepted some of the criticisms. For example he accepted that the reference to the mediation following the complaints to the Human Rights Commission was privileged, that the facts relied on for particular causes of action had not been identified, and that certain paragraphs that have relied extensively on quotations of evidence could be shortened or removed.7 But even with the adjustments proposed by Mr Stockman it can still be said that the statement of claim does not focus on the key allegations necessary to support the causes of action. It involves a list of all events and evidential material, rather than focusing on the elements of the causes of action. It is also argumentative in parts. As I indicate below, I think that is particularly so with respect to the tortious claims.

[17]   But there are two key considerations that lead me to conclude that the defendant’s application should not be granted, at least in the form sought.

6      See Low Volume Vehicle Technical Association Inc v Brett [2017] NZHC 3281 at [13]–[14]. Note that the particular decision in issue was overturned on appeal – Low Value Vehicle Technical Association Inc v Brett [2019] NZCA 67, [2019] 2 NZLR 808.

7      He also accepted that the damages claimed should have been specified for each cause of action rather than being referred to just under the sixth cause of action, and that the third claim should more clearly be identified as a “Baigent” claim.

[18]   First the essential complaint made in relation to the judicial review claim is apparent. I accept that it is not as clear as it could be in the statement of claim, but in oral submissions before me Mr Stockman confirmed that his key complaint was that the counsellor he had complained about had been interviewed by the defendant as part of its procedures for dealing with such complaints, but that he was not allowed to know what she had said in that process. Mr Stockman says that she has made serious adverse comments about him which are untrue, and he contends that it is a significant breach of natural justice for him not to be able to know what has been said to the defendant about him, and not to be able to respond, when the defendant was dealing with his complaint. It seems to me that the essence of that complaint is properly outlined in paragraphs 56 and 57 of the statement of claim. These allegations are tolerably clear, and the defendant should be able to respond to them.

[19]   The second point is that the proceedings have been afoot since 2017 and have not progressed beyond the stage of the filing of a statement of claim because of procedural arguments. I see little advantage in the proceedings now being stayed, even if that is to allow Mr Stockman to reformulate his statement of claim. He has been given the opportunity to re-plead by Cull J, but he has not taken that up. It is nevertheless clear that Mr Stockman is committed to bringing these proceedings. It seems to me that he is entitled to have his claims assessed on the merits provided the Rules have been complied with in an adequate way, and that further procedural disputes should be avoided if possible.

[20]   The above points are particularly true of Mr Stockman’s judicial review claims given that judicial review is intended to be “simple, untechnical and prompt”.8 Judicial review is Mr Stockman’s first cause of action, and is also a large measure of his second and third causes of action. His second cause of action is an allegation of breach of a common law right to natural justice, and his third cause of action is an allegation of a breach of natural justice guaranteed by s 27(1) of the New Zealand Bill of Rights Act 1990 albeit encompassing a claim for Baigent damages. Subject to the question of monetary relief sought in the third cause of action, the first to third causes of action

8      See Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39], citing

Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353.

seem to me to be capable of being heard and determined at a hearing of the judicial review claims.

The claims in tort

[21]   There are additional issues with the fourth to eighth causes of action, however, which are broadly characterised as tortious claims. In the defendant’s application for a stay, in addition to criticising the clarity of the pleading, the defendant has raised whether these causes of action are tenable at all. Mr Wolff for the defendant indicated that in applying to stay the plaintiff’s claim the defendant has sought to balance the question of the right of a self-represented plaintiff to bring a claim with the defendant’s concerns about the nature of the claim being brought. In part this was an explanation why a strike-out application had not been pursued. But in the written submissions in support of its stay application the defendant advanced reasons why some of these claims are not tenable.

[22]There seem to me to be three categories of tort claims that I address in turn.

Misfeasance

[23]   The seventh cause of action is an action for misfeasance in a public office. The elements of that tort were set by the Court of Appeal in Currie v Clayton in the following way:9

[40]      The elements of the tort of misfeasance in public office can be summarised thus:

(1)Standing: The plaintiff must have standing to sue.

(2)Public office: The defendant must be a public officer.

(3)Unlawful conduct: The defendant must have acted or omitted to act in purported exercise of her public office unlawfully either:

(a)      intentionally, that is actually knowing her actions or omission to act were beyond the limits of her public office; or

9      Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 (footnotes omitted).

(b)     with reckless indifference as to whether she was acting or omitting to act outside those limits.

(4)Intention: The defendant must have so acted or omitted to act either:

(a)      with malice towards the plaintiff, that is, with intention to harm the plaintiff; or

(b)     knowing her conduct was likely to harm the plaintiff, or people in the general position of the plaintiff; or

(c)      with reckless indifference as to whether the plaintiff would be harmed. Subjective recklessness, not objective recklessness, is required.

(Note: (a) is what is often called “targeted malice”; (b) and (c) are often called “non-targeted malice”.)

(5)Resulting loss: The plaintiff must actually have suffered loss and the defendant’s actions must have caused the plaintiff’s claimed loss.

[24]   I accept the defendant’s submissions that Mr Stockman’s current pleading does not formulate a coherent and comprehensible claim meeting the requirement of the Rules for this cause of action. The pleading runs for approximately 13 pages raising matters additional to those already extensively pleaded as background. A number of matters are pleaded, including long extracts from documents arising from the parties’ exchanges.

[25]   It is not apparent from the pleading how the plaintiff is contending unlawful conduct in the manner contemplated by [40(3)], or intention referred to in [40(4)] of the elements of the tort summarised in Currie v Clayton. If it is alleged that the defendant knowingly acted beyond its powers, or was recklessly indifferent to whether it had those powers, that is not squarely identified. The particular public powers/functions are not pleaded. The pleading is also a recitation of factual events and allegations of impropriety that do not correspond with the elements of the tort.

[26]   In response Mr Stockman pointed to authority to the effect that private bodies can be held to be exercising public functions.10 I accept that is so, particularly in assessing whether the decisions of such bodies are susceptible to judicial review. But

10     He expressly referred to the observation in footnote 51 of Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 4.

even accepting that point can be made here, the current pleading does not identify the public power/function in issue, and how it is abused in a manner corresponding to the elements of the tort. I also accept the submission for the defendant that the paragraphs “are largely submissions and evidence” (paragraph 39 written submissions).

[27]   For that reason this Court could grant a stay of this cause of action until such time as a pleading corresponding to the Rules and the principles summarised in [13] above is filed and served.

[28]   But the defendant also argues there is no reasonably arguable cause of action (paragraph 43 written submissions). That is because the defendant says it does not exercise a public office, and there could be no case that it knowingly exceeded powers (or was recklessly indifferent to this) in the manner contemplated by the tort. In effect that is a contention that this cause of action is capable of being struck out.

[29]   It seems to me that rather than enter a stay that invites a reformulation on the statement of claim some two years after it has been filed, the more appropriate course is that the potential merit of Mr Stockman’s claims, and the defendant’s contention that no reasonable cause of action exists, should be determined at a strike-out application.

[30]   The hearing of the strike-out application can occur at the same time as the hearing of Mr Stockman’s judicial review claims. Indeed there is an advantage that that occur, because the Court will be more fully informed of the case by virtue of the hearing of the judicial review action, and can assess the strike-out application on that basis.11 If the judicial review claims are dismissed the misfeasance claims may no longer be tenable. In the meantime the misfeasance claim should be stayed pending the hearing of that strike-out application.

Sixth and eighth causes of action

[31]   The statement of claim also contains two novel causes of action. The sixth cause of action is said to be a claim for “obstruction of justice”. During oral

11     See Harriman v Attorney-General [2015] NZHC 3197 at [7]; and Wilson v Department of Corrections [2018] NZHC 2977 at [9]–[10].

submissions I asked Mr Stockman what that claim was as I had not heard of it. He advised me that it was indeed a tort, and that it had been recognised as such by the Supreme Court of North Carolina (although the relevant decision was not made available to me). Mr Stockman accepted it would be a novel tort in New Zealand. He pointed out that the law is capable of development, and identified the Baigent cause of action as an illustration.

[32]   I accept that the law can develop. But I also accept that it is very difficult to know how the defendant is currently to plead to the plaintiff’s claims. There is no identification of the elements of the suggested tort. The position appears confused in the pleading as there is a reference to fiduciary duties owed by the relevant counsellor. It is not clear whether that fiduciary duty is an element of the tort.

[33]   Again the claim could be stayed to provide a clearer pleading, but the key point seems to me to be the argument that there is no such tort recognised by the law of New Zealand in any event. Again, the matter is better dealt with by way of the strike-out application, rather than a stay.

[34]   This is also true of the eighth cause of action which is an alleged tort entitled “misprision of an inequity”. Mr Stockman acknowledged that this was a tort that he had devised. Both his submissions, and the submissions for the defendant seem to suggest that misprision of an inequity was a criminal offence relating to the concealment of treason or a felony. It no  longer forms  part  of the  criminal  law.  Mr Stockman said he had “flipped” this to become a civil tortious claim. In just over four pages of additional pleading he makes a number of criticisms of the defendant and the relevant counsellor in support of this claim. I accept that this also involves generalised facts, evidential material, and argument, some of which is theoretical. For example paragraph 159 pleads:

Feminism is publicly held to be about equality and on that basis critics of feminism are often deemed misogynistic. This case however highlights that large tracts of feminist theory, belief and practice are not about seeking equality but are seeking to demean men and privilege women. The Plaintiff’s claim is that feminist theory or intimate partner abuse is the inequity in this cause of action. Feminist theory on intimate partner abuse is about vilifying all men and valorising all women as the perpetual victims of these vile men.

[35]   This is not a proper pleading of the element of a tort, but involves the advancing of a philosophical or political argument. Rather than simply staying this cause of action to invite repleading, it seems to me to be far more appropriate that an application be heard on whether this tort is recognised at all and that the claim be stayed in the meantime.

Breach of statutory duty

[36]   The two remaining causes of action are for breach of statutory duty. To establish such a tort the plaintiff needs to establish that the defendant breached a statutory duty to the plaintiff, and that as a matter of statutory interpretation the intention of Parliament was that the plaintiff would be compensated in damages for that breach.12

[37]   The fourth cause of action involves an allegation of breach of the Code of Health and Disability Services. It is alleged that the right in paragraph 10(3) of the Code of Health and Disability Services Consumer’s Rights (the right to the facilitation of the fair, simple, speedy and efficient solution of complaints) established under the Health and Disability (Code of Health and Disability Services Consumer’s Rights) Regulations 1996 has been breached, and that the plaintiff is entitled to bring a claim in tort against the defendant for breach of statutory duty.

[38]   Similarly, the fifth cause of action involves an allegation that the defendant has breached s 44(1)(b) of the Human Rights Act 1993 — under which it is unlawful for a person supplying goods, facilities or service to the public to treat any person less favourably in connection with this by reason of the prohibited grounds of discrimination. The ground of discrimination referred to is sex. It is alleged that the plaintiff has been discriminated against because he is a man. Again, the plaintiff contends that he is entitled to sue the defendant in a claim of tort for breach of statutory duty.

12     See Select 2000 Ltd v ENZA Ltd [2002] 2 NZLR 367 (CA) at [26] and Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2011] NZCA 513, [2011] 2 NZLR 442 at [186]–[193].

[39]   There is a legitimate argument as to whether these statutory provisions could found a claim for breach of statutory duty. Again, rather than the proceedings being bogged down by complaints about the pleading, and issuing a stay to invite that claim to be repleaded, it seems to me that key issue — whether those causes of action are truly arguable — should be dealt with by a strike-out application.

Civil contempt

[40]   I also record that during the course of submissions Mr Stockman advised that he wished to amend his statement of claim to introduce a new cause of action. That cause of action is for civil contempt.

[41]   The argument is based on the judgment of Peters J in Stockman v New Zealand Association of Counsellors Inc where Mr Stockman’s claims were successful, at least in part, and the Court remitted the matter back to the Association in light of the judgment.13 Mr Stockman wishes to argue that the defendant failed to act in accordance with the orders of the Court, and is in contempt.

[42]   It will be necessary for Mr Stockman to amend his statement of claim to add this cause of action, together with the other amendments he referred to during the course of this hearing. If the defendant wishes to apply to strike-out this new cause of action, that can be addressed in the applications I am anticipating it will make.

Submissions addressed to the alternative approach

[43]   In addressing the stay application, it was apparent to me that alternative orders and directions might be more appropriate rather than those sought. I also considered the need to address the effective management of the proceedings in accordance with s 14 of the Judicial Review Procedure Act 2016.

[44]   At the  hearing  of  the  stay  application  I  accordingly  raised  with  both  Mr Stockman and Mr Wolff the alternative orders — that being to set down the judicial review claims, and the defendant’s anticipated application to strike-out at a single hearing.  That hearing would proceed on affidavit evidence addressing the judicial

13     Stockman v New Zealand Association of Counsellors Inc [2013] NZHC 2267, [2013] NZAR 1233.

review claims and the strike-out application. At that stage the Court could determine whether any tortious claims would continue, and the process to be followed.14 The judicial review claims and on the strike-out application would be dealt with in a single judgment. Proceeding in this way would allow Mr Stockman to have his claims assessed on the merits, rather than having them stayed and becoming further procedurally bogged down in this Court.

[45]   Mr Wolff for the defendant did not oppose that way forward. Mr Stockman did oppose it on the basis that it could cause greater complexity, and effectively involve severing the judicial review and tort claims in a way that would cause more difficulty in the long run.

[46]   Notwithstanding Mr Stockman’s opposition, I conclude that this is the best way forward. For the reasons identified above I accept there are significant problems with the way Mr Stockman’s claims, particularly his tortious claims, are pleaded. They are not clear in terms of the elements of the cause of action, and they advance evidence and argument. Rather than staying these claims to invite re-pleading, however, I conclude it is preferable to proceed to a substantive hearing based on affidavit evidence, which will determine the judicial review claims and the anticipated strike-out application, and accordingly whether there will be a subsequent trial with viva voce evidence on the balance of the claims.

[47]   I discussed with counsel what directions would be appropriate should the Court reach that view, including what periods of time they would need to deal with particular steps, and what those steps should be. Following that discussion the following timetable emerged:15

(a)That the plaintiff is to file and serve an amended statement of claim within 20 working days of the release of this judgment.

(b)The defendant is to file and serve a statement of defence to the amended statement of claim, together with any strike-out application, and its

14     That is consistent with the suggestions made in Wilson v Department of Corrections, above n 11.

15     All working days are subject to the days excluded from calculation set out in the High Court Rules 2016.

initial disclosure, within 20 working days after the filing and service of the plaintiff’s amended statement of claim.16

(c)The plaintiff is to file and serve its notice of opposition to any application to strike-out, and his affidavits in support of his claims of judicial review within 20 working days of service of the documents referred to in (b) above.

(d)That the defendant file and serve its affidavits in opposition within 20 working days of service of the plaintiff’s affidavits.

(e)That other than the steps referred to above, the plaintiff’s tortious claims are stayed pending the hearing of the judicial review and strike- out applications.

(f)That the judicial review and strike-out applications be given a hearing after consultation with the Registrar. At present I anticipate that one day will be required.

(g)That the plaintiff’s submissions on the judicial review, and the defendant’s submissions on the strike-out application are to be filed and served 10 working days before the hearing.

(h)That the submissions of the defendant and plaintiff in response are to be filed and served five working days before the hearing.

(i)That the parties have general leave to apply for any variations or additions to the timetable.

[48]   I note in relation to discovery/disclosure as contemplated in [47](b) above that the defendant should discover the material relevant to the judicial review claims. I do not expect that to be extensive. But Mr Stockman was particularly concerned to ensure

16     The statement of defence is to plead to the first to third causes of action, and any other causes of action not subject to the strike-out application.

that the defendant’s duty of candour would apply to that disclosure, and that the defendant would discover any document that assisted his judicial review claims. I agree that it should be the defendant’s approach.

[49]   For these reasons I dismiss the defendant’s application for a stay in the form sought, but I grant the partial stay and make the associated directions referred to above.

[50]   I did not hear from the parties as to the costs of this application. My preliminary view is that costs should lie where they fall given the measure of success on each side. Memoranda may be filed if either party disagrees and seeks costs.

Cooke J