Stockman v New Zealand Association of Counsellors Incorporated
[2018] NZHC 1902
•30 July 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-325
[2018] NZHC 1902
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
A Judicial Review of the decisions and processes of the Respondent
BETWEEN
PETER GERARD STOCKMAN
Appellant
AND
NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED
Respondent
Hearing: 6 June 2018 Appearances:
P G Stockman self-represented Appellant C Heaton for the Respondent
Judgment:
30 July 2018
JUDGMENT OF CULL J
[1] Mr Stockman seeks leave to appeal my judgment of 30 October 2017, in which I refused an application by Mr Stockman for my recusal from these proceedings.1 The hearing giving rise to the recusal decision was a stay of proceedings application filed by the New Zealand Association of Counsellors Inc (NZAC). I did not grant a stay of the proceedings issued by Mr Stockman but adjourned the proceedings to allow Mr Stockman on opportunity to reconsider his pleadings. I issued a minute recording what transpired at the hearing.2
1 Stockman v New Zealand Association of Counsellors Inc [2017] NZHC 2223 [recusal decision].
2 Stockman v New Zealand Association of Counsellors Inc HC Wellington CIV-2017-485-325, 23 August 2017 (minute).
STOCKMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED [2018] NZHC 1902 [30 July 2018]
[2] Mr Stockman filed an application for my recusal from these proceedings on the grounds principally that I had not brought an impartial mind to the proceedings and that I have shown actual or apparent bias against him. I refused Mr Stockman’s application in my judgment of 30 October 2017.3
[3] Mr Stockman filed his application for leave to appeal out of time and he requests that “further time” be allowed within the meaning of s 56(3) of the Senior Courts Act 2016. A hearing of Mr Stockman’s leave to appeal application took place on 6 June 2018, the transcript of which speaks for itself.
[4] I grant Mr Stockman leave to appeal out of time but decline his application for leave to appeal. My reasons are set out below.
Leave to appeal out of time
[5] Leave to appeal to the Court of Appeal can be granted by the High Court on an application made within 20 working days from the date of the decision, or in any further time that the High Court may allow.
[6]Section 56(3) of the Senior Courts Act provides:
(3)No appeal … lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
[7] Mr Stockman was unaware of the changes under the Senior Courts Act and sought to appeal directly to the Court of Appeal. He then went on holiday and was notified of his mistake by the Court of Appeal Registry. On his return from holiday, he filed his application with the High Court Registry, which declined his application for filing, because it failed to comply with Form G31.
3 Recusal decision, above n 1.
[8] Mr Stockman’s application for leave to appeal my recusal decision has now been accepted by the High Court Registry, with his request that “further time be allowed”.
[9] I consider the reason for Mr Stockman’s delay in filing his application for leave to appeal was based on a genuine misunderstanding of the legislation and rules, and I therefore allow Mr Stockman further time for the filing of his application under s 56(3) of the Senior Courts Act.
The judgment of 30 October
[10] My recusal decision arose from a hearing on 23 August 2017. NZAC applied to stay Mr Stockman’s proceedings, on the grounds that his statement of claim disclosed claims that were not reasonably arguable, were likely to cause prejudice or delay, were frivolous or vexatious, and were otherwise an abuse of process of the Court. In support of its application for stay, Ms Heaton for NZAC filed submissions detailing procedural and substantive flaws in relation to each of the pleaded causes of action.
The claims
[11] Of the first five causes of action pleaded by Mr Stockman, NZAC submits that the factual or legal bases for these causes of action have not been pleaded, nor has the relief or remedy been specified or pleaded. The pleadings, it says, contain submissions and reference to academic theory, particularly in relation to the fourth and fifth causes of action.4 The lack of causal connection between the pleading and NZAC is highlighted in relation to the fifth cause of action.
[12] The sixth cause of action claims damages for obstruction of justice by a named counsellor (not the respondent). The seventh cause of action, “misfe[a]sance in public office”, also involves allegations against the same named counsellor without pleading the requirements of the tort of misfeasance in public office. The eighth cause of action,
4 Under the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 and the Human Rights Act 1993, s 44(1)(b).
claiming misprision of an inequity, with a claim for relief of exemplary damages, is challenged as disclosing no reasonably arguable cause of action.
[13] The relief sought by NZAC was to stay the proceeding to allow Mr Stockman an opportunity to amend his statement of claim:
so that irrelevant and inappropriate material can be removed, as can any causes of action that are not reasonably arguable, and the legal elements of any arguable causes of action can be properly pleaded and appropriate particulars identified.
[14] At the stay hearing of 23 August 2017, I indicated to both parties that I was not minded to grant NZAC’s application to stay the proceedings or strike out any causes of action on the Court’s own motion, without giving Mr Stockman an opportunity to reconsider his pleadings and make such amendments as he considers appropriate, particularly in light of the submissions filed by NZAC.
[15] Both parties were amenable to my indication, as I recorded in my minute.5 I recorded that I recommended to Mr Stockman he seek some legal advice in relation to the viability of causes of action six to eight, and the pleading of relief for the fourth and fifth causes of action. I also suggested that his first, second and third causes of action could be repleaded as one cause of action with the relief already pleaded for the breach of natural justice ground of review.
[16] I heard from Mr Stockman as to his reasons for inserting the tracts of evidence, particularly under the seventh cause of action of misfeasance in public office and I suggested he seek legal advice in relation to those causes of action and the nature of the pleading itself.
[17]I recorded these matters in a minute dated 23 August 2017.6
[18] On 8 September 2017, Mr Stockman made application for my recusal on a number of grounds, but principally that I had not brought an impartial mind to the proceedings; I had given “bad legal advice” from the Bench; that I had shown actual
5 Minute, above n 2, at [4].
6 Minute, above n 2.
or apparent bias against self-represented litigants; and that my previous involvement on an expert panel of advisors to the Law Commission for a family violence report meant that I will be biased against Mr Stockman’s arguments and claims about harmful feminist counselling practices.
[19] NZAC filed submissions in opposition. I delivered an oral judgment on 30 October 2017, in which I concluded that there was no basis for my recusal in these circumstances and declined Mr Stockman’s application.7 I also directed that NZAC’s application for a stay, if it is to be pursued, be rescheduled for hearing and that will be a matter that remains with the Court Scheduler.
Threshold for leave to appeal
[20] The following considerations are relevant to an application for leave to appeal from an interlocutory application:8
(a)A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error.
(b)Leave should only be granted where the circumstances warrant incurring further delay.
(c)The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.
[21] Taking those factors into account, the court must then “stand back and assess, in a pragmatic and realistic way, whether the interests of justice are served by granting leave to appeal.”9
7 Recusal decision, above n 1.
8 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9], referring to A v Minister of Internal Affairs [2017] NZHC 887.
9 Finewood Upholstery, at [14].
The grounds of appeal
[22] Mr Stockman alleges nine errors in my recusal decision. I address the first six, including the merits entailed in each allegation. The remaining three involving allegations of apparent bias, predetermination and legal error, which are considered in the discussion.
(a)At [9] of the judgment, I summarised Mr Stockman’s submission as follows: “my previous involvement on the expert panel of advisers to the Law Commission for a family violence report means I will be biased against Mr Stockman’s argument”.10 Mr Stockman alleges that his submission was addressing apparent, not actual, bias.
I consider this, if any, is a minor error, and the judgment goes on to address apparent bias in any event.
(b)Mr Stockman submits I failed to provide reasons for not making a determination on the stay application.
In my minute dated 23 August 2017, I recorded that “both parties were amenable to my indication” that I adjourn the stay application to give “Mr Stockman an opportunity to reconsider his pleadings and make such amendments as he considers appropriate, particularly in light of the submissions filed by Ms Heaton.”11 As an adjournment was made, no determination was necessary, and that did not change upon the recusal application.
(c)Mr Stockman claims that I ordered the filing of a statement of defence or strike out by the defendant during the stay hearing, and that now I have treated the stay application as “still alive”.
This is incorrect. I indicated during the stay hearing that if Mr Stockman tidied up his pleadings, the defendant could file a
10 Recusal decision, above n 1, at [9].
11 Minute, above n 2, at [3] and [4].
statement of defence, or otherwise a strike out application could be made. The stay application was “still alive”, since the proceeding had merely been adjourned for Mr Stockman to reconsider his pleadings.
(d)In my recusal decision, I found that my association with the Law Commission report is remote.12 Mr Stockman takes issue with this, stating again that he was alleging apparent bias. He also argues that the Law Commission report is a public comment of a firm opinion.
However, the Law Commission report is not a statement made by me and cannot be seen as a public comment, let alone a firm commitment on my part. It is the statement of the Law Commission; it is clearly remote; and there was no error in that finding.
(e)Mr Stockman argues that I should have sought the advice of the Chief High Court Judge, because [30] of the Guidelines for Judicial Conduct states that “in cases of uncertainty it may be desirable for the judge to discuss the matter with the relevant head of jurisdiction or another judge.”13
The Guidelines provide guidance and it is not a requirement to consult the head of jurisdiction. Nor was there uncertainty. I consider there has been no error.
(f)Mr Stockman submits that a suppression application was contained in his submissions.
Mr Stockman did refer to suppression but there was no formal application and I directed Mr Stockman that if he wished to pursue name suppression, he should file an application, with an affidavit in support.14 Accordingly, there was no error.
12 Recusal decision, above n 1, at [21(d)].
13 Guidelines for Judicial Conduct (March 2013) < decision, above n 1, at [23].
(g)Mr Stockman submits, that in various ways, I demonstrated apparent bias against lay litigants, by offering legal advice as to how to structure his claims and by advising him to obtain legal advice.
(h)Mr Stockman contends that at [15] of my recusal decision, the reliance upon the Supreme Court’s decision in A (SC 106/2015) v R is distinguishable.15 He contends that the comment in that decision that a judge’s state of mind must be “so committed to a conclusion already formed as to be incapable of alteration” is an obiter statement and is wrong in this context.16 Mr Stockman claims further that the present case concerns predetermination on (some of) the claims at hand, and is distinguishable from A v R, which merely concerned prior association with a general proposition.17
(i)Mr Stockman contends that I made predeterminations and demonstrated apparent bias with respect to causes of action six to eight, by saying variously that they are “doomed”, “plainly just not going to reach their goal” and “should be … dropped off”.
Discussion
[23] In my recusal decision I set out the High Court Recusal Guidelines and the commentary on the apprehension of bias.18 The commentary says that apprehension of bias is case-dependent and a Judge should apply these principles “firmly and fairly and not accede too readily to suggestions of bias”.19
[24] The common scenarios where recusal is appropriate are set out at [18] and my reasons for deciding that a fair-minded, fully-informed lay observer would not have a reasonable apprehension that I cannot bring an impartial mind to the questions in the present proceedings are canvassed further at [19] to [23] of my recusal decision.
15 A (SC 106/2015) v R [2016] NZSC 31 at [22].
16 At [22], citing Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at 532.
17 Recusal decision, above n 1, at [15].
18 At [13]-[18].
19 High Court Recusal Guidelines (2017) < guidelines 1.5.1 and 1.7.
[25] Although Mr Stockman submits that A v R does not have application to these facts, it is relevant that the Supreme Court considered the issue of an expression of opinion by a Judge.20 The Court considered an expression of opinion from a Judge has to be extreme and unbalanced before finding that the Judge is biased or unable to keep an open mind. The Court said:21
[25]The New Zealand Guidelines for Judicial Conduct recognise that there may be cases where a judge should disqualify him or herself from hearing a case if it concerns a matter upon which a judge has made public statements of firm opinion. This can include expressions of opinion in an earlier case or in an earlier stage of proceeding. However, the “expression of opinion would have had to have been extreme and unbalanced before a reasonable observer would think the judge not able to have an open mind.”
[26] The Supreme Court referred to authority from the High Court of Australia22 that a Judge’s state of mind must be so committed to a conclusion already formed as to be incapable of alternation, whatever evidence or arguments are presented. Similar authority from the United States Supreme Court (also referred to by the New Zealand Supreme Court), reinforces that opinions of a Judge on the basis of evidence occurring in current or prior proceedings do not constitute a basis for bias unless they display “a deep-seated favouritism or antagonism that would make fair judgment impossible.”23
[27] In this case, I was dealing with a procedural application by NZAC to stay Mr Stockman’s pleadings. NZAC’s submissions highlighted the procedural and substantive problems facing Mr Stockman in relation to some of his pleaded causes of action. Neither the substance or merits of the proceedings were before me, and the recommendation I made to Mr Stockman to seek legal advice, particularly in relation to the last three causes of action, arose from the application and submissions made by NZAC. I endeavoured to give Mr Stockman an opportunity to reconsider his pleadings, without an adverse order or a costs award made against him.
[28] There has been no determination on the stay of the proceedings, and Mr Stockman can still defend the stay application, which is adjourned.
20 A v R, above n 15, at [25].
21 Footnotes omitted.
22 Jia, above n 16.
23 A v R, above n 15, at [23] citing Liteky v United States 510 US 540 (1994) at 555.
[29] I consider that none of the grounds for apparent bias or recusal pleaded by Mr Stockman are sufficient to warrant my recusal. Further, I do not consider that there is an allegation of error of law. There has been no actual or apparent bias directed at Mr Stockman. The matters raised relate to the legal and procedural aspects of his pleadings. Those matters are yet to be heard and Mr Stockman is still able to be heard.
[30] I do not consider that the circumstances warrant incurring further delay in this matter, and nor do I consider the matter is of general or public importance that requires further determination. A high threshold exists for the granting of leave and I do not consider it is met in this case.
Result
[31] The application for leave to appeal out of time is allowed. The application for leave to appeal is dismissed.
Cull J
Solicitors:
Morrison Kent, Wellington
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