STOCKMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED [2018] NZHC 1902

STOCKMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED [2018] NZHC 1902[30 July 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-325[2018] NZHC 1902UNDER the Judicature Amendment Act 1972IN THE MATTER OF A Judicial Review of the decisions andprocesses of the RespondentBETWEEN PETER GERARD STOCKMANAppellantAND NEW ZEALAND ASSOCIATION OFCOUNSELLORS INCORPORATEDRespondentHearing: 6 June 2018Appearances: P G Stockman self-represented AppellantC Heaton for the RespondentJudgment: 30 July 2018JUDGMENT OF CULL J[1] Mr Stockman seeks leave to appeal my judgment of 30 October 2017, in whichI refused an application by Mr Stockman for my recusal from these proceedings.1 Thehearing giving rise to the recusal decision was a stay of proceedings application filedby the New Zealand Association of Counsellors Inc (NZAC). I did not grant a stay ofthe proceedings issued by Mr Stockman but adjourned the proceedings to allow MrStockman on opportunity to reconsider his pleadings. I issued a minute recordingwhat transpired at the hearing.21 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, 23August 2017 (minute).[2] Mr Stockman filed an application for my recusal from these proceedings onthe grounds principally that I had not brought an impartial mind to the proceedingsand that I have shown actual or apparent bias against him. I refused Mr Stockman'sapplication in my judgment of 30 October 2017.3[3] Mr Stockman filed his application for leave to appeal out of time and herequests that "further time" be allowed within the meaning of s 56(3) of the SeniorCourts Act 2016. A hearing of Mr Stockman's leave to appeal application took placeon 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 forleave 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 anapplication made within 20 working days from the date of the decision, or in anyfurther 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 madeon an interlocutory application in respect of any civil proceedingunless leave to appeal to the Court of Appeal is given by the HighCourt on application made within 20 working days after the date ofthat order or decision or within any further time that the High Courtmay allow.[7] Mr Stockman was unaware of the changes under the Senior Courts Act andsought to appeal directly to the Court of Appeal. He then went on holiday and wasnotified 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 applicationfor 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 nowbeen accepted by the High Court Registry, with his request that "further time beallowed".[9] I consider the reason for Mr Stockman's delay in filing his application for leaveto appeal was based on a genuine misunderstanding of the legislation and rules, and Itherefore 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 appliedto stay Mr Stockman's proceedings, on the grounds that his statement of claimdisclosed claims that were not reasonably arguable, were likely to cause prejudice ordelay, were frivolous or vexatious, and were otherwise an abuse of process of theCourt. In support of its application for stay, Ms Heaton for NZAC filed submissionsdetailing procedural and substantive flaws in relation to each of the pleaded causes ofaction.The claims[11] Of the first five causes of action pleaded by Mr Stockman, NZAC submits thatthe factual or legal bases for these causes of action have not been pleaded, nor has therelief or remedy been specified or pleaded. The pleadings, it says, contain submissionsand reference to academic theory, particularly in relation to the fourth and fifth causesof action.4 The lack of causal connection between the pleading and NZAC ishighlighted in relation to the fifth cause of action.[12] The sixth cause of action claims damages for obstruction of justice by a namedcounsellor (not the respondent). The seventh cause of action, "misfe[a]sance in publicoffice", also involves allegations against the same named counsellor without pleadingthe 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 ServicesConsumers' 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, ischallenged as disclosing no reasonably arguable cause of action.[13] The relief sought by NZAC was to stay the proceeding to allow Mr Stockmanan opportunity to amend his statement of claim:so that irrelevant and inappropriate material can be removed, as can any causesof action that are not reasonably arguable, and the legal elements of anyarguable causes of action can be properly pleaded and appropriate particularsidentified.[14] At the stay hearing of 23 August 2017, I indicated to both parties that I was notminded to grant NZAC's application to stay the proceedings or strike out any causesof action on the Court's own motion, without giving Mr Stockman an opportunity toreconsider 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 Irecorded that I recommended to Mr Stockman he seek some legal advice in relation tothe viability of causes of action six to eight, and the pleading of relief for the fourthand fifth causes of action. I also suggested that his first, second and third causes ofaction could be repleaded as one cause of action with the relief already pleaded for thebreach 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 Isuggested he seek legal advice in relation to those causes of action and the nature ofthe 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 anumber of grounds, but principally that I had not brought an impartial mind to theproceedings; I had given "bad legal advice" from the Bench; that I had shown actual5 Minute, above n 2, at [4].6 Minute, above n 2.or apparent bias against self-represented litigants; and that my previous involvementon an expert panel of advisors to the Law Commission for a family violence reportmeant that I will be biased against Mr Stockman's arguments and claims about harmfulfeminist counselling practices.[19] NZAC filed submissions in opposition. I delivered an oral judgment on 30October 2017, in which I concluded that there was no basis for my recusal in thesecircumstances and declined Mr Stockman's application.7 I also directed that NZAC'sapplication for a stay, if it is to be pursued, be rescheduled for hearing and that will bea matter that remains with the Court Scheduler.Threshold for leave to appeal[20] The following considerations are relevant to an application for leave to appealfrom an interlocutory application:8(a) A high threshold exists for the granting of leave. An allegation of errorof law or fact is generally insufficient. An applicant should raise anarguable error.(b) Leave should only be granted where the circumstances warrantincurring further delay.(c) The alleged error should be of general or public importance thatrequires determination, or otherwise be of sufficient importance to theapplicant to outweigh the lack of any general or precedentialimportance.[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 grantingleave to appeal."97 Recusal decision, above n 1.8 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9], referring to A v Minister ofInternal 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 involvingallegations of apparent bias, predetermination and legal error, which are considered inthe discussion.(a) At [9] of the judgment, I summarised Mr Stockman's submission asfollows: "my previous involvement on the expert panel of advisers tothe Law Commission for a family violence report means I will be biasedagainst Mr Stockman's argument".10 Mr Stockman alleges that hissubmission was addressing apparent, not actual, bias.I consider this, if any, is a minor error, and the judgment goes on toaddress apparent bias in any event.(b) Mr Stockman submits I failed to provide reasons for not making adetermination on the stay application.In my minute dated 23 August 2017, I recorded that "both parties wereamenable to my indication" that I adjourn the stay application to give"Mr Stockman an opportunity to reconsider his pleadings and makesuch amendments as he considers appropriate, particularly in light ofthe submissions filed by Ms Heaton."11 As an adjournment was made,no determination was necessary, and that did not change upon therecusal application.(c) Mr Stockman claims that I ordered the filing of a statement of defenceor strike out by the defendant during the stay hearing, and that now Ihave treated the stay application as "still alive".This is incorrect. I indicated during the stay hearing that ifMr Stockman tidied up his pleadings, the defendant could file a10 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 bemade. The stay application was "still alive", since the proceeding hadmerely been adjourned for Mr Stockman to reconsider his pleadings.(d) In my recusal decision, I found that my association with the LawCommission report is remote.12 Mr Stockman takes issue with this,stating again that he was alleging apparent bias. He also argues that theLaw Commission report is a public comment of a firm opinion.However, the Law Commission report is not a statement made by meand cannot be seen as a public comment, let alone a firm commitmenton my part. It is the statement of the Law Commission; it is clearlyremote; and there was no error in that finding.(e) Mr Stockman argues that I should have sought the advice of the ChiefHigh Court Judge, because [30] of the Guidelines for Judicial Conductstates that "in cases of uncertainty it may be desirable for the judge todiscuss the matter with the relevant head of jurisdiction or anotherjudge."13The Guidelines provide guidance and it is not a requirement to consultthe head of jurisdiction. Nor was there uncertainty. I consider therehas been no error.(f) Mr Stockman submits that a suppression application was contained inhis submissions.Mr Stockman did refer to suppression but there was no formalapplication and I directed Mr Stockman that if he wished to pursuename suppression, he should file an application, with an affidavit insupport.14 Accordingly, there was no error.12 Recusal decision, above n 1, at [21(d)].13 Guidelines for Judicial Conduct (March 2013) <www.courtsofnz.govt.nz>.14 Recusal decision, above n 1, at [23].(g) Mr Stockman submits, that in various ways, I demonstrated apparentbias against lay litigants, by offering legal advice as to how to structurehis claims and by advising him to obtain legal advice.(h) Mr Stockman contends that at [15] of my recusal decision, the relianceupon the Supreme Court's decision in A (SC 106/2015) v R isdistinguishable.15 He contends that the comment in that decision that ajudge's state of mind must be "so committed to a conclusion alreadyformed as to be incapable of alteration" is an obiter statement and iswrong in this context.16 Mr Stockman claims further that the presentcase concerns predetermination on (some of) the claims at hand, and isdistinguishable from A v R, which merely concerned prior associationwith a general proposition.17(i) Mr Stockman contends that I made predeterminations anddemonstrated apparent bias with respect to causes of action six to eight,by saying variously that they are "doomed", "plainly just not going toreach their goal" and "should be dropped off".Discussion[23] In my recusal decision I set out the High Court Recusal Guidelines and thecommentary on the apprehension of bias.18 The commentary says that apprehensionof bias is case-dependent and a Judge should apply these principles "firmly and fairlyand not accede too readily to suggestions of bias".19[24] The common scenarios where recusal is appropriate are set out at [18] and myreasons for deciding that a fair-minded, fully-informed lay observer would not have areasonable apprehension that I cannot bring an impartial mind to the questions in thepresent 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) <www.courtsofnz.govt.nz>, guidelines 1.5.1 and 1.7.[25] Although Mr Stockman submits that A v R does not have application to thesefacts, it is relevant that the Supreme Court considered the issue of an expression ofopinion by a Judge.20 The Court considered an expression of opinion from a Judgehas to be extreme and unbalanced before finding that the Judge is biased or unable tokeep an open mind. The Court said:21[25] The New Zealand Guidelines for Judicial Conduct recognise thatthere may be cases where a judge should disqualify him or herselffrom hearing a case if it concerns a matter upon which a judge hasmade public statements of firm opinion. This can include expressionsof opinion in an earlier case or in an earlier stage of proceeding.However, the "expression of opinion would have had to have beenextreme and unbalanced before a reasonable observer would think thejudge not able to have an open mind."[26] The Supreme Court referred to authority from the High Court of Australia22that a Judge's state of mind must be so committed to a conclusion already formed asto be incapable of alternation, whatever evidence or arguments are presented. Similarauthority from the United States Supreme Court (also referred to by the New ZealandSupreme Court), reinforces that opinions of a Judge on the basis of evidence occurringin current or prior proceedings do not constitute a basis for bias unless they display "adeep-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 MrStockman's pleadings. NZAC's submissions highlighted the procedural andsubstantive problems facing Mr Stockman in relation to some of his pleaded causes ofaction. Neither the substance or merits of the proceedings were before me, and therecommendation I made to Mr Stockman to seek legal advice, particularly in relationto the last three causes of action, arose from the application and submissions made byNZAC. I endeavoured to give Mr Stockman an opportunity to reconsider hispleadings, without an adverse order or a costs award made against him.[28] There has been no determination on the stay of the proceedings, and MrStockman 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 MrStockman are sufficient to warrant my recusal. Further, I do not consider that there isan allegation of error of law. There has been no actual or apparent bias directed at MrStockman. The matters raised relate to the legal and procedural aspects of hispleadings. 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 thismatter, and nor do I consider the matter is of general or public importance that requiresfurther determination. A high threshold exists for the granting of leave and I do notconsider it is met in this case.Result[31] The application for leave to appeal out of time is allowed. The application forleave to appeal is dismissed.Cull JSolicitors:Morrison Kent, Wellington