Stockman v New Zealand Association of Counsellors Incorporation [2019] NZCA 268 (28 June 2019)

Last Updated: 2 July 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA493/2018 [2019] NZCA 268

	BETWEEN	PETER GERARD STOCKMAN Applicant
	AND	NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED Respondent

Court:	Brown and Clifford JJ
Counsel:	Applicant in person M R C Wolff for Respondent
Judgment: (On the papers)	28 June 2019 at 2 pm

JUDGMENT OF THE COURT

1. The application for recall is declined.
2. There is no order as to costs.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] In April 2017 Mr Stockman commenced proceedings for judicial review in the High Court. He was dissatisfied with the way the respondent had dealt with a complaint he had made. The respondent applied to stay those proceedings, on the basis that the statement of claim was fundamentally defective. Cull J observed that, in her preliminary view, Mr Stockman’s statement of claim faced real difficulties in a number of areas. After discussing those matters with the parties the Judge adjourned the hearing, so that Mr Stockman could, if he wished, file an amended statement of claim. The Judge was not prepared to grant the respondent a stay or strike-out without having given such an opportunity to Mr Stockman. Mr Stockman subsequently indicated he would not be amending his pleading.
[2] Mr Stockman then applied for Cull J to recuse herself. She declined that application.^[1] Cull J then declined leave for Mr Stockman to appeal that recusal decision to this Court.^[2] Mr Stockman then applied to this Court for leave to bring that appeal. That application was based on the propositions that the Judge was biased and prejudiced.
[3] We declined leave.^[3]
[4] Mr Stockman now applies for recall of that decision on the basis this Court failed to determine the issues he raised in his leave application and was, accordingly, corrupt. The Court had, Mr Stockman asserts, been corrupted by hubris, as evidenced by errors of fact and our failure to explicitly consider a number of Mr Stockman’s specific submissions. Mr Stockman wishes to appear in person before a full bench of this Court to argue his recall application.
[5] The respondent abides.
[6] We deal first with Mr Stockman’s application for his recall application to be heard by a full Court, and then with that application itself. In terms of s 49(7) of the Senior Courts Act 2016, we determine Mr Stockman’s application on the papers.

A full court?

[7] In terms of the procedure adopted by this Court pursuant to s 51(2) of the Senior Courts Act, the President has determined that Mr Stockman’s recall application is not a case of sufficient significance to warrant the consideration of a full Court. It does not involve the establishment or revision of sentencing guidelines nor an issue of major significance for other cases.

Recall?

[8] Turning to Mr Stockman’s recall application, the test for recall of civil judgments was described by Wild CJ in Horowhenua County v Nash (No 2) as follows:^[4]

Generally speaking, a judgment once delivered must stand for better or worse, subject, of course, to appeal.^[[5]] Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled –— first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[9] There has been no amendment to a relevant statute or regulation, or a new judicial decision of relevance and high authority; nor did counsel fail to direct our attention to a relevant legislative provision or authoritative decision. It is the third category of case which Mr Stockman relies on. Accordingly, the question here is whether for some other very special reason justice requires that the judgment be recalled.
[10] Mr Stockman’s application is based primarily on his assertion of corruption. If there was any basis for that allegation we agree such a very special reason would exist. We are, however, satisfied that there is not. We base that conclusion on the following analysis.
[11] In support of his argument this Court had failed to listen to him, Mr Stockman referred to the following passage of our judgment:^[6]

[2] The background can be summarised briefly. Mr Stockman laid a complaint about counselling services he received from a member of the respondent association, the New Zealand Assoc of Counsellors Inc (NZACI). NZACI dealt with his complaint but not to Mr Stockman’s satisfaction, so he commenced proceedings in the High Court.

[12] Mr Stockman asserted that summary was erroneous, and evidenced a failure to listen to him, because:

• (a) he had no idea how the respondent had dealt with the complaint he originally made about counselling services provided to him and his wife;
• (b) he had commenced proceedings in the High Court in 2012 as a result of which a judgment in his favour ordered NZACI to include certain evidence in a fresh inquiry into the counsellor’s practice;^[7] and
• (c) the current proceedings before the High Court stemmed from NZACI failing to follow the directions given in that High Court judgment.

[13] We acknowledge that our summary does not deal with every step in Mr Stockman’s litigation against the respondent. However, the summary is materially accurate. At [27] and [29] of his statement of claim in this proceeding, dated 23 March 2017, Mr Stockman refers to his letters of complaint to NZACI of 15 October and 20 October 2013, and to the subsequent — and in his view — unsatisfactory response by NZACI to him. The causes of action he pleaded alleged breaches of natural justice occasioned by NZACI’s complaints process, including a failure to resolve his complaints fairly and speedily. We are satisfied our admittedly brief summary of the background was accurate.
[14] Similarly, we are satisfied that at [5] and [6] of our judgment we did deal with the substance of Mr Stockman’s grounds for his application for leave.
[15] The grounds Mr Stockman raises for recall are, therefore, without substance. Accordingly, the application for recall is declined.

[16] There is no order as to costs.

Solicitors:
Morrison Kent, Wellington for Respondent

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

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

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

^[4] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

^[5] We note there is no right of appeal against a decision of this Court declining an application for leave to appeal.

^[6] Stockman v New Zealand Assoc of Counsellors Inc, above n 3.

^[7] Stockman v New Zealand Assoc of Counsellors Inc [2013] NZHC 2267, [2013] NZAR 1233.