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

STOCKMAN v NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED [2019] NZHC 3047[21 November 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-325[2019] NZHC 3047BETWEEN PETER GERARD STOCKMANPlaintiffAND NEW ZEALAND ASSOCIATION OFCOUNSELLORS INCORPORATEDDefendantHearing: 7 November 2019Counsel: P G Stockman, plaintiff in personM R Wolff for defendantJudgment: 21 November 2019JUDGMENT OF COOKE J(Application for a stay)[1] By statement of claim dated 12 April 2017 the plaintiff, Mr Stockman, pursuesa 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 engagedin, and a subsequent complaint made by the plaintiff to the defendant in June 2011 thatthere was misconduct by the counsellor involved. The first cause of action is anapplication for a judicial review which focuses on allegations of breaches of naturaljustice in the procedures followed by the defendant in dealing with the complaint. Butthere are other causes of action in tort, for example, a claim for misfeasance in a publicoffice.[2] Rather than filing a statement of defence, the defendant filed and served anapplication dated 17 May 2017 for an order staying the proceedings. This was opposedby the plaintiff. This is the application that is now before the Court. I explain belowwhy it has been nearly two and a half years for the application to be substantivelyheard and determined.[3] The essence of the stay application is that the plaintiff's claim is not properlypleaded in accordance with the High Court Rules 2016, and the defendant cannot beexpected to respond to it.[4] For the reasons explained below I have decided not to grant the stay in the formsought, but rather direct that the judicial review claims advanced by Mr Stockman begiven a hearing, and that that hearing also address an anticipated application by thedefendant to strike out the balance of the claims advanced against it that areforeshadowed in its stay arguments. I give directions to allow that hearing to takeplace. Apart from complying with those directions the tortious claims advanced byMr 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. Afterdiscussing the position with the parties at the hearing, Cull J adjourned the proceedingto give Mr Stockman the opportunity to take legal advice and amend his statement ofclaim. She directed when that amended pleading was to be filed, and when thedefendant was to file a statement of defence in response.[6] Mr Stockman then made an application that Cull J be recused from hearing theproceedings. By judgment dated 30 October 2017 Cull J dismissed that applicationafter hearing from the parties.1[7] Mr Stockman then applied for leave to appeal this judgment to the Court ofAppeal. 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. Byjudgment dated 29 November 2018 the Court of Appeal declined that application.3 It1 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 ofAppeal, including an application that that Court recall its judgment.[9] The defendant then advised it wished to proceed with its original stayapplication. At a hearing before the Associate Judge on 4 September 2019 directionswere 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 andformed the basis of the hearing before me.[11] The key elements of the defendant's application are summarised in the noticeof application in the following way:(a) The respondent's application for review and statement of claim dated12 April 2017 ("the pleading") is prolix (177 paragraphs) and ill-drafted to such a degree that it is impossible for the applicant torespond 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 materialfacts are difficult to discern;(d) Much of the factual material pleaded is irrelevant, provides excessivedetail, 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 RightsCommission 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 namesof persons and other circumstances to inform the Court and theapplicant 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, andin his oral submissions he addressed each of the above paragraphs in the notice ofapplication and provided his response.[13] There is no dispute in terms of the requirements for pleadings. InCommissioner of Inland Revenue v Chesterfields Preschools Ltd the Court of Appealsummarised the position in the following way:4[84] The procedural requirements for statements of claim are spelled outin the HCR. For present purposes r 5.17 (distinct matter to be statedseparately), 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. Insummary they are:• The pleading must be accurate, clear and intelligible.• Sufficient particulars must be given to enable the defendant to befairly informed of the case to be met.• While adequate particulars are required, the statement of claimmust 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 causeof action and, where there is more than one plaintiff and multipledefendants, the relief sought by each plaintiff against eachdefendant must be clearly stated.[85] This Court in Hopper Group Ltd v Parker put it as follows:5One essential part of pleadings is to state precisely the basicfacts on which the plaintiff relies so as to clearly define theissues which the defendant has to meet. If that is not done, itis difficult for a defendant to prepare for trial and questionssuch as payment into Court or offers of settlement can hardlybe considered. Furthermore, if the case goes to trial withoutprecise pleadings, much time can be wasted and a defendantmight be taken by surprise when the real issue not previouslystated clearly suddenly emerges.4 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR679.5 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 accuratesummary of the principles, but said that the statement of claim here met therequirements, or if it did not that was only in respect of more minor or technicalmatters. Mr Stockman also emphasised, and I accept, that litigants in person areentitled to a degree of latitude in terms of the technical rules. This should not be tothe point where the self-represented litigant is being given an unfair advantage, or sothat the Judge effectively conducts the case on behalf of the litigant. But it is importantthat litigants in person are able to exercise the right of access to the Court withoutprocedural points preventing their substantive grievances from being addressed.6Assessment[15] I accept that there is substance to some of the defendant's criticisms of thepresently formulated statement of claim. In particular the statement of claim isunnecessarily long and involves pleading evidence rather than the matters going to theelements 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 thatthe reference to the mediation following the complaints to the Human RightsCommission was privileged, that the facts relied on for particular causes of action hadnot been identified, and that certain paragraphs that have relied extensively onquotations of evidence could be shortened or removed.7 But even with the adjustmentsproposed by Mr Stockman it can still be said that the statement of claim does not focuson the key allegations necessary to support the causes of action. It involves a list ofall events and evidential material, rather than focusing on the elements of the causesof action. It is also argumentative in parts. As I indicate below, I think that isparticularly so with respect to the tortious claims.[17] But there are two key considerations that lead me to conclude that thedefendant'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]. Notethat the particular decision in issue was overturned on appeal – Low Value Vehicle TechnicalAssociation 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 actionrather than being referred to just under the sixth cause of action, and that the third claim shouldmore clearly be identified as a "Baigent" claim.[18] First the essential complaint made in relation to the judicial review claim isapparent. I accept that it is not as clear as it could be in the statement of claim, but inoral submissions before me Mr Stockman confirmed that his key complaint was thatthe counsellor he had complained about had been interviewed by the defendant as partof its procedures for dealing with such complaints, but that he was not allowed to knowwhat she had said in that process. Mr Stockman says that she has made serious adversecomments about him which are untrue, and he contends that it is a significant breachof natural justice for him not to be able to know what has been said to the defendantabout him, and not to be able to respond, when the defendant was dealing with hiscomplaint. It seems to me that the essence of that complaint is properly outlined inparagraphs 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 havenot progressed beyond the stage of the filing of a statement of claim because ofprocedural arguments. I see little advantage in the proceedings now being stayed, evenif that is to allow Mr Stockman to reformulate his statement of claim. He has beengiven the opportunity to re-plead by Cull J, but he has not taken that up. It isnevertheless clear that Mr Stockman is committed to bringing these proceedings. Itseems to me that he is entitled to have his claims assessed on the merits provided theRules have been complied with in an adequate way, and that further proceduraldisputes should be avoided if possible.[20] The above points are particularly true of Mr Stockman's judicial review claimsgiven that judicial review is intended to be "simple, untechnical and prompt".8 Judicialreview is Mr Stockman's first cause of action, and is also a large measure of his secondand third causes of action. His second cause of action is an allegation of breach of acommon law right to natural justice, and his third cause of action is an allegation of abreach of natural justice guaranteed by s 27(1) of the New Zealand Bill of Rights Act1990 albeit encompassing a claim for Baigent damages. Subject to the question ofmonetary relief sought in the third cause of action, the first to third causes of action8 See Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39], citingMinister 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 judicialreview 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 fora stay, in addition to criticising the clarity of the pleading, the defendant has raisedwhether these causes of action are tenable at all. Mr Wolff for the defendant indicatedthat in applying to stay the plaintiff's claim the defendant has sought to balance thequestion of the right of a self-represented plaintiff to bring a claim with the defendant'sconcerns about the nature of the claim being brought. In part this was an explanationwhy a strike-out application had not been pursued. But in the written submissions insupport of its stay application the defendant advanced reasons why some of theseclaims 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. Theelements of that tort were set by the Court of Appeal in Currie v Clayton in thefollowing way:9[40] The elements of the tort of misfeasance in public office can besummarised 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 omittedto act in purported exercise of her public office unlawfullyeither:(a) intentionally, that is actually knowing her actions oromission to act were beyond the limits of her publicoffice; or9 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 (footnotes omitted).(b) with reckless indifference as to whether she was actingor omitting to act outside those limits.(4) Intention: The defendant must have so acted or omitted to acteither:(a) with malice towards the plaintiff, that is, with intentionto harm the plaintiff; or(b) knowing her conduct was likely to harm the plaintiff, orpeople in the general position of the plaintiff; or(c) with reckless indifference as to whether the plaintiffwould be harmed. Subjective recklessness, not objectiverecklessness, 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 lossand the defendant's actions must have caused the plaintiff'sclaimed loss.[24] I accept the defendant's submissions that Mr Stockman's current pleading doesnot formulate a coherent and comprehensible claim meeting the requirement of theRules for this cause of action. The pleading runs for approximately 13 pages raisingmatters additional to those already extensively pleaded as background. A number ofmatters 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 unlawfulconduct in the manner contemplated by [40(3)], or intention referred to in [40(4)] ofthe elements of the tort summarised in Currie v Clayton. If it is alleged that thedefendant knowingly acted beyond its powers, or was recklessly indifferent to whetherit had those powers, that is not squarely identified. The particular publicpowers/functions are not pleaded. The pleading is also a recitation of factual eventsand 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 bodiescan be held to be exercising public functions.10 I accept that is so, particularly inassessing whether the decisions of such bodies are susceptible to judicial review. But10 He expressly referred to the observation in footnote 51 of Commissioner of Inland Revenue vChesterfields Preschools Ltd, above n 4.even accepting that point can be made here, the current pleading does not identify thepublic power/function in issue, and how it is abused in a manner corresponding to theelements 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 suchtime 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 notexercise 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 effectthat 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 thestatement of claim some two years after it has been filed, the more appropriate courseis that the potential merit of Mr Stockman's claims, and the defendant's contentionthat no reasonable cause of action exists, should be determined at a strike-outapplication.[30] The hearing of the strike-out application can occur at the same time as thehearing of Mr Stockman's judicial review claims. Indeed there is an advantage thatthat occur, because the Court will be more fully informed of the case by virtue of thehearing of the judicial review action, and can assess the strike-out application on thatbasis.11 If the judicial review claims are dismissed the misfeasance claims may nolonger be tenable. In the meantime the misfeasance claim should be stayed pendingthe 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 sixthcause of action is said to be a claim for "obstruction of justice". During oral11 See Harriman v Attorney-General [2015] NZHC 3197 at [7]; and Wilson v Department ofCorrections [2018] NZHC 2977 at [9]–[10].submissions I asked Mr Stockman what that claim was as I had not heard of it. Headvised me that it was indeed a tort, and that it had been recognised as such by theSupreme Court of North Carolina (although the relevant decision was not madeavailable to me). Mr Stockman accepted it would be a novel tort in New Zealand. Hepointed out that the law is capable of development, and identified the Baigent causeof action as an illustration.[32] I accept that the law can develop. But I also accept that it is very difficult toknow how the defendant is currently to plead to the plaintiff's claims. There is noidentification of the elements of the suggested tort. The position appears confused inthe 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 pointseems to me to be the argument that there is no such tort recognised by the law of NewZealand in any event. Again, the matter is better dealt with by way of the strike-outapplication, 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 hehad devised. Both his submissions, and the submissions for the defendant seem tosuggest that misprision of an inequity was a criminal offence relating to theconcealment 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 overfour pages of additional pleading he makes a number of criticisms of the defendantand the relevant counsellor in support of this claim. I accept that this also involvesgeneralised facts, evidential material, and argument, some of which is theoretical. Forexample paragraph 159 pleads:Feminism is publicly held to be about equality and on that basis critics offeminism are often deemed misogynistic. This case however highlights thatlarge tracts of feminist theory, belief and practice are not about seekingequality but are seeking to demean men and privilege women. The Plaintiff'sclaim is that feminist theory or intimate partner abuse is the inequity in thiscause of action. Feminist theory on intimate partner abuse is about vilifyingall 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 advancingof a philosophical or political argument. Rather than simply staying this cause ofaction to invite repleading, it seems to me to be far more appropriate that an applicationbe heard on whether this tort is recognised at all and that the claim be stayed in themeantime.Breach of statutory duty[36] The two remaining causes of action are for breach of statutory duty. Toestablish such a tort the plaintiff needs to establish that the defendant breached astatutory duty to the plaintiff, and that as a matter of statutory interpretation theintention of Parliament was that the plaintiff would be compensated in damages forthat breach.12[37] The fourth cause of action involves an allegation of breach of the Code ofHealth and Disability Services. It is alleged that the right in paragraph 10(3) of theCode of Health and Disability Services Consumer's Rights (the right to the facilitationof the fair, simple, speedy and efficient solution of complaints) established under theHealth 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 claimin tort against the defendant for breach of statutory duty.[38] Similarly, the fifth cause of action involves an allegation that the defendant hasbreached s 44(1)(b) of the Human Rights Act 1993 — under which it is unlawful fora person supplying goods, facilities or service to the public to treat any person lessfavourably in connection with this by reason of the prohibited grounds ofdiscrimination. The ground of discrimination referred to is sex. It is alleged that theplaintiff has been discriminated against because he is a man. Again, the plaintiffcontends that he is entitled to sue the defendant in a claim of tort for breach of statutoryduty.12 See Select 2000 Ltd v ENZA Ltd [2002] 2 NZLR 367 (CA) at [26] and Wool BoardDisestablishment 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 couldfound a claim for breach of statutory duty. Again, rather than the proceedings beingbogged down by complaints about the pleading, and issuing a stay to invite that claimto be repleaded, it seems to me that key issue — whether those causes of action aretruly 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 thathe wished to amend his statement of claim to introduce a new cause of action. Thatcause of action is for civil contempt.[41] The argument is based on the judgment of Peters J in Stockman v New ZealandAssociation of Counsellors Inc where Mr Stockman's claims were successful, at leastin part, and the Court remitted the matter back to the Association in light of thejudgment.13 Mr Stockman wishes to argue that the defendant failed to act inaccordance 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 addthis cause of action, together with the other amendments he referred to during thecourse of this hearing. If the defendant wishes to apply to strike-out this new cause ofaction, 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 ordersand directions might be more appropriate rather than those sought. I also consideredthe need to address the effective management of the proceedings in accordance withs 14 of the Judicial Review Procedure Act 2016.[44] At the hearing of the stay application I accordingly raised with bothMr Stockman and Mr Wolff the alternative orders — that being to set down the judicialreview claims, and the defendant's anticipated application to strike-out at a singlehearing. That hearing would proceed on affidavit evidence addressing the judicial13 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 determinewhether any tortious claims would continue, and the process to be followed.14 Thejudicial review claims and on the strike-out application would be dealt with in a singlejudgment. Proceeding in this way would allow Mr Stockman to have his claimsassessed on the merits, rather than having them stayed and becoming furtherprocedurally bogged down in this Court.[45] Mr Wolff for the defendant did not oppose that way forward. Mr Stockmandid oppose it on the basis that it could cause greater complexity, and effectivelyinvolve severing the judicial review and tort claims in a way that would cause moredifficulty in the long run.[46] Notwithstanding Mr Stockman's opposition, I conclude that this is the bestway forward. For the reasons identified above I accept there are significant problemswith 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 advanceevidence and argument. Rather than staying these claims to invite re-pleading,however, I conclude it is preferable to proceed to a substantive hearing based onaffidavit evidence, which will determine the judicial review claims and the anticipatedstrike-out application, and accordingly whether there will be a subsequent trial withviva voce evidence on the balance of the claims.[47] I discussed with counsel what directions would be appropriate should the Courtreach that view, including what periods of time they would need to deal with particularsteps, and what those steps should be. Following that discussion the followingtimetable emerged:15(a) That the plaintiff is to file and serve an amended statement of claimwithin 20 working days of the release of this judgment.(b) The defendant is to file and serve a statement of defence to the amendedstatement of claim, together with any strike-out application, and its14 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 Rules2016.initial disclosure, within 20 working days after the filing and service ofthe plaintiff's amended statement of claim.16(c) The plaintiff is to file and serve its notice of opposition to anyapplication to strike-out, and his affidavits in support of his claims ofjudicial review within 20 working days of service of the documentsreferred to in (b) above.(d) That the defendant file and serve its affidavits in opposition within 20working days of service of the plaintiff's affidavits.(e) That other than the steps referred to above, the plaintiff's tortiousclaims 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 hearingafter consultation with the Registrar. At present I anticipate that oneday will be required.(g) That the plaintiff's submissions on the judicial review, and thedefendant's submissions on the strike-out application are to be filed andserved 10 working days before the hearing.(h) That the submissions of the defendant and plaintiff in response are tobe filed and served five working days before the hearing.(i) That the parties have general leave to apply for any variations oradditions to the timetable.[48] I note in relation to discovery/disclosure as contemplated in [47](b) above thatthe defendant should discover the material relevant to the judicial review claims. I donot expect that to be extensive. But Mr Stockman was particularly concerned to ensure16 The statement of defence is to plead to the first to third causes of action, and any other causes ofaction not subject to the strike-out application.that the defendant's duty of candour would apply to that disclosure, and that thedefendant would discover any document that assisted his judicial review claims. Iagree that it should be the defendant's approach.[49] For these reasons I dismiss the defendant's application for a stay in the formsought, 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. Mypreliminary view is that costs should lie where they fall given the measure of successon each side. Memoranda may be filed if either party disagrees and seeks costs.Cooke J