STOCKMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INC [2017] NZHC 2223

STOCKMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INC [2017] NZHC 2223 [30 October 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-325[2017] NZHC 2223UNDER the Judicature Amendment Act 1972IN THE MATTER OF A Judicial Review of the decisions andprocesses of the DefendantAndUNDER The common law of tortIN THE MATTER OF Seeking general and exemplary damagesBETWEEN PETER GERARD STOCKMANAplicantAND NEW ZEALAND ASSOCIATION OFCOUNSELLORS INCRespondentHearing: 30 October 2017Appearances: P G Stockman self-represented applicantC Heaton for the respondentJudgment: 30 October 2017ORAL JUDGMENT OF CULL J[1] Mr Stockman seeks that I recuse myself from the substantive proceedings in this case.[2] The defendant in the substantive proceeding, New Zealand Association of Counsellors Inc (NZACI), opposes the application for recusal. I record that I have heard both parties this morning.Factual background[3] Mr Stockman made a complaint about counselling services he received from a member of the NZACI. NZACI dealt with his complaint, although Mr Stockman is unhappy with how this complaint was managed and the processes of NZACI. Mr Stockman instituted civil proceedings in judicial review (amongst other claims in the general jurisdiction of the High Court) against NZACI.[4] NZACI applied to this Court to stay those proceedings, pending amendmentsto Mr Stockman's statement of claim. NZACI alleged that as it stands, Mr Stockman's statement of claim discloses claims that are not reasonably arguable,is likely to cause prejudice or delay, is frivolous or vexatious, and is otherwise an abuse of process of the court.[5] Following a hearing on 23 August 2017, I adjourned the hearing for one month for Mr Stockman to reconsider and/or amend his statement of claim and that is recorded in my minute of 23 August 2017.1 I do emphasize here, that this was a procedural application and that is all I was dealing with. It related to pleadings which must comply with the High Court Rules 2016 in the jurisdiction of the High Court, both in relation to judicial review namely, the Administrative Division of the High Court and the more general jurisdiction of the High Court, which involve thelatter causes of action in Mr Stockman's claim. Subsequently, Mr Stockman has filed an application seeking my recusal from the proceedings.Mr Stockman's position[6] Mr Stockman submits there is a reasonable apprehension that I have not brought an impartial mind to the questions in these proceedings. He points to the fact that I did not make an order for Mr Stockman to amend his pleadings, which implies his pleadings are not defective. If this is the case, then Mr Stockman submitsNZACI's application to stay should have been dismissed, or reasons for not doing so, should be provided. As this has not been done, Mr Stockman argues, there is a reasonable apprehension that I have not brought an impartial mind to the proceedings.1 Stockman v New Zealand Association of Counsellors Inc CIV-2017-485-325 Minute of Cull J, 23 August 2017.[7] Mr Stockman also argues that I have shown actual bias against him. He bases this on the following submissions and these are the matters that you traversed today Mr Stockman:(a) that I did not address his substantive submissions in the minute issued on 23 August in relation to the causes of action pleaded;(b) it appears I have not provided any legal reasoning and so therefore Ifavour Ms Heaton's submissions for NZACI over Mr Stockman's;(c) that I gave "bad legal advice from the bench" which was designed to encourage Mr Stockman to obtain assistance from a lawyer and therefore exclude him from participating in the court process;(d) as I have not identified any defects in Mr Stockman's pleadings butrecommended he seek legal advice, Mr Stockman submits I must beconsidering "extra-legal" matters; and(e) I have prejudged Mr Stockman's pleaded causes of action, particularlyitems six and eight in the statement of claim.[8] Mr Stockman addressed me further on those issues this morning. In so doing, he alleged that I have shown bias against self-represented litigants and indeed those causes six and eight in the statement of his statement of claim, (about which I directed him to seek legal advice,) go to the heart of his wanting to seek damages against NZACI.[9] Lastly, (and this was addressed this morning as the first ground of Mr Stockman's submissions in asking me to recuse myself) that my previous involvement on the expert panel of advisors to the Law Commission for a family violence report means I will be biased against Mr Stockman's arguments in hisstatement of claim about harmful feminist practices. I note and record that Mr Stockman addressed those this morning more fully and in particular raised concerns about the feminist theories that are bound both in the research undertakenby one of the writers of the Law Commission's report, Associate Professor Julia Tolmie and the report itself.[10] Lastly, Mr Stockman comments that I should consult with the Head of Benchrather than "unilaterally" determining the recusal application.NZACI's position[11] I turn then to consider NZACI's position. NZACI opposes Mr Stockman'sapplication for recusal. Ms Heaton, counsel for NZACI, submits:2(a) first, a judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist;(b) secondly, there is no evidence to establish the circumstances which Mr Stockman relies on to suggest I was or may seem to be biased; and(c) thirdly, there are no grounds for recusal that exist because no fair- minded, fully-informed lay observer would in the circumstances of this application have a reasonable apprehension that I might not bring an impartial mind to the resolution of the questions I am required to decide; and(d) further that under r 1.2, I undertook the jurisdiction to secure the just speedy and inexpensive determination of a proceeding, in the way that the hearing took place before me in August 2017.3[12] Ms Heaton also addresses the allegation about the failure to provide reasons. She simply notes, that this was not needed because they have no application in these circumstances of an interlocutory application and one where I adjourned to enable Mr Stockman to consider his pleadings. She has also made further submissions by way of written submission and has taken issue with the suggestion that I have given"bad legal advice" from the bench and my suggestion that the plaintiff take legal advice. Her submission is that this was not inappropriate or misconceived. The legal proceeding is a technical process and by allowing Mr Stockman to take time to take advice, was demonstrating a practical way in which judges and lawyers,2 Relying on the High Court Recusal Guidelines 2017; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2010] 1 NZLR 35 (SC).3 High Court Rules 2016, r 1.2.together with court staff, can ensure that justice is done to any person in a case, particularly a self-represented litigant.Relevant law[13] The relevant principles for recusal were settled by the Supreme Court in the decision of Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.4 A judge should recuse himself or herself on the basis of apparent bias if a fair-minded and properly informed lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question which the judge is to decide.5 First, the Judge must identify the circumstances that may lead the Judge to decide a case other than on its merits.6 Second, the party alleging apparent bias must also articulate a logical connection between the matter complained of and the feared deviation from impartiality.7 The question of whether a judge is impartial is "one ofpossibility (real and not remote), rather than probability".8[14] Recently, in A (SC 106/2015) v R, the Supreme Court noted that judges should not recuse themselves without sufficient cause.9 The Court also outlined thatunder the test for recusal, the "fair minded lay observer is presumed to view mattersobjectively and be reasonably informed about the legal system and the issues in thecase."10 This observer must also understand that a judge is expected to be independent and sit on cases allocated to them unless grounds for disqualification exist.[15] The Supreme Court, citing authority from the High Court of Australia,11 held that in order for a judge to be disqualified for bias in the form of prejudgment, ajudge's state of mind must be so committed to a conclusion already formed as to beincapable of alteration whatever arguments are presented before them.12 For natural4 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 [Saxmere (No 1)]. The first judgment was subsequently recalled due to further disclosure after the hearing: Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76.5 Saxmere (No 1), above n 4, at [3].6 At [4].7 At [4], [20] and [86].8 At [4] and [81].9 A (SC 106/2015) v R [2016] NZSC 31 at [16].10 At [16].11 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at 532.12 A, above n 9, at [22].justice to be found, there does not need to be a complete absence of any predisposition or inclination for or against an argument or conclusion.13[16] In accordance with s 172 of the Senior Courts Act 2016, the Chief High Court Judge publishes recusal guidelines for the High Court. The High Court Recusal Guidelines 2017 (the Guidelines) outline the general principles, which guide whether a judge should recuse themselves, and incorporate the Saxmere test. Of relevance, the Guidelines provide:1.1 A judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist.1.2 A judge should recuse him or herself if, in the circumstances, a fair- minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.1.3 The standard for recusal is one of "real and not remote possibility",rather than probability.1.4 The test is a two-stage one. The judge must consider1.4.1 First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and1.4.2 Second, whether there is a "logical and sufficient connection" between those circumstances and thatapprehension.14[17] The Guidelines also state that the apprehension of bias is case dependent anda judge should apply these principles "firmly and fairly and not accede too readily tosuggestions of bias."15[18] The Guidelines discuss several common scenarios where recusal may be appropriate, including where:(a) a relationship exists with a party, lawyer or witness that may influence the judge to a particular outcome;1613 At [22].14 See Saxmere (No 1), above n 4; Saxmere (No 2), above n 4; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; and Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753. See also: Grant Hammond, Judicial Recusal Principles, Process and Problems (Hart Publishing, Oxford and Portland Oregon, 2009).15 High Court Recusal Guidelines (2017) <www.courtsofnz.govt.nz>, guidelines 1.5.1 and 1.7.16 Guideline 2.(b) a judge has served as a legal advisor in respect of the matter in issue when in practice;17(c) a judge, or a close relative or member of the judge's household,directly or indirectly has an economic interest in the outcome of the proceedings;18 and(d) the case concerns a matter upon which the judge has made public statements of firm opinion on the issue before the court.19Discussion[19] In this instance I do not believe a fair-minded fully informed lay observer could have a reasonable apprehension that I will not or cannot bring an impartial mind to the questions in the present proceedings. I stress that the substance or merits of the proceeding were not before me. I was dealing with a procedural application only. I was also mindful of the legal principles that apply to both the procedural issues that are raised by this application, as well as the cases which define how causes of action can be finalised or determined. I have not yet made any determination on the substance of the proceedings and this is why no legal reasons have yet been given.[20] The minute that was released to the parties on 23 August 2017 recorded that the proceedings were adjourned to provide Mr Stockman the opportunity to replead his statement of claim if he wished. Mr Stockman has indicated he does not want to do this and so it is for NZACI now to determine if they wish to continue the stay application before the substantive proceeding is heard.[21] In terms of the test to be applied, first it is clear that none of the circumstances for apparent bias or recusal pleaded by Mr Stockman are sufficient to warrant recusal. Further, there is no logical or sufficient connection between those circumstances pleaded and any apprehension of bias for these reasons:17 Guideline 3.18 Guideline 4.19 Guideline 5.(a) no legal reasons have yet been given and no final determination has yet been made on either the stay application or Mr Stockman'ssubstantive claim;(b) my suggestions on procedural rules provided to Mr Stockman were intended to assist his claim so as not to be unnecessarily stayed or to have costs awarded, rather than to give "bad legal advice" as Mr Stockman has alleged;(c) the suggestion that Mr Stockman obtain legal advice was intended to assist his claim and pleadings, rather than to exclude him from the judicial process; and(d) any connection between my professional involvement with the LawCommission's family violence report and my disposition to prejudgeMr Stockman's claim is both remote and illogical in these circumstances. This was an application to stay proceedings on a procedural basis under the High Court Rules and on the principles that apply. Any connection between me and any of my past dealings withdomestic violence or advice on a Law Commission's report is remote.[22] Finally, where an application for recusal is made, it must be dealt with in open court. It is not appropriate therefore, as Mr Stockman suggested, that it is dealt with by consultation with the Head of Bench. I must deliver a judgment in open court.[23] During the course of submissions, Mr Stockman referred to his application for name suppression, which had not been considered. No formal application for name suppression had been filed, but Mr Stockman had requested that it be granted at the close of his submissions. I directed that if he wished to pursue name suppression, he should file an application, with an affidavit in support.Result[24] I do not consider there is any basis for my recusal in these circumstances. I decline Mr Stockman's application.[25] I direct that NZACI's application for stay, if it is to be pursued, be rescheduled for hearing and that will be a matter that remains with the Court Scheduler.Cull JSolicitors:Morrison Kent, Wellington