Mailley v Legal Complaints Review Officer

[2019] NZHC 132

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-404-134

[2019] NZHC 132

IN THE MATTER OF

an Application for Judicial Review

BETWEEN

MARTIN JAMES MAILLEY

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

ANTONY SHAW

Second Respondent

Hearing:

On the papers

Counsel:

G E Minchin for Applicant

F E Geiringer for Second Respondent

Judgment:

12 February 2019

JUDGMENT OF CLARK J

Introduction

[1]                  In my judgment delivered on 18 December 2018 I granted the second respondent’s application to stay Mr Mailley’s application for judicial review.1 I determined that, having succeeded in his application, the second respondent was entitled to scale costs calculated on a 1A basis.2 Mr Mailley has applied under r 20.10 of the High Court Rules for an order staying the costs award pending determination of his appeal.

1      Mailley v Legal Complaints Review Officer [2018] NZHC 3363.

2      At [57](d).

MAILLEY v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 132 [12 February 2019]

The application

[2]The grounds on which Mr Mailley seeks a stay of the costs award are that:3

(a)impecuniosity was in issue in the substantive proceeding;

(b)he proposed to file a notice of appeal in the Court of Appeal; and

(c)the costs order could effectively bar his appeal because he will have to pay security for costs.

[3]                  The second respondent opposes the application to stay the costs award. The second respondent advances seven grounds of opposition. The key points are that the second respondent has sought to recover from Mr Mailley costs in the sum of “only”

$3,220.25; Mr Mailley has provided no evidence in support of his assertion of impecuniosity; and Mr Mailley’s proposed appeal lacks merit.

Applicable principles

[4]                  Although the second respondent relies on r 17.29 of the High Court Rules in opposing Mr Mailley’s application I reach my decision in light of the principles governing a stay of enforcement of judgment pending an appeal. These principles are discussed in the commentary to r 20.10 of the High Court Rules.4 The starting point is that an appeal does not operate as a stay of the proceedings appealed against nor of enforcement of any judgment or order appealed against. The general rule is long established: a party is entitled to enjoy the fruits of a judgment in its favour.

[5]                  The ability of a liable party to apply under r 17.29 for a stay of enforcement or other relief against a judgment on the ground of substantial miscarriage of justice is a separate and distinct rule from the power to stay execution pending appeal.5

3 Interlocutory application for stay of costs award pending appeal, dated 17 January 2019 at [2].

4      McGechan on Procedure (online looseleafed, Thomson Reuters) at [HR20.10.01].

5      Palmerston North City Council v Birch [2012] NZHC 3248 at [17].

[6]                  A party seeking a stay under r 20.10 needs to persuade the Court that its appeal rights would be rendered nugatory if the stay is not granted.6 In making that assessment the Court will weigh up the position of both parties.

Decision

[7]                  While Mr Mailley has put in issue his “impecuniosity” he has offered no evidence in support. The affidavit which Mr Mailley did file consists of two brief paragraphs. In the first, Mr Mailley deposes to his intention to file an appeal “today”, presumably 16 January 2019, the date of his affidavit.   In his second paragraph     Mr Mailley states that if obliged to pay the costs award he “may” have difficulty paying security for costs in the Court of Appeal. In its own terms, Mr Mailley’s case for a stay is equivocal. Mr Mailley has gone no further than to foreshadow a possible difficulty paying security for costs on appeal.

[8]                  By his third ground of appeal7 Mr Mailley hints at the potential for a security of costs order to bar his appeal but that intimation is an insufficient basis upon which to be satisfied his appeal will be rendered nugatory if the costs judgment against him is enforced.

[9]                  As  matters  stand  I  have  no  basis  for  assessing  the  consequences  for  Mr Mailley’s appeal if his application for a stay is declined. Mr Mailley has not suggested, much less demonstrated, that his appeal rights will be rendered nugatory if a stay is not granted. It is for Mr Mailley, in the first instance, to assert such prejudice and to support the assertion with some degree of evidence. Mr Mailley has not done so. Mr Mailley has not displaced the principle that a successful litigant is entitled to the fruits of judgment.

[10]               One final point: there is evidence before the Court that Mr Mailley travelled overseas in 2018 with his family. The evidence was exhibited to the second respondent’s affidavit. I have reached my decision without regard to that evidence.

6      Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA); Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA); Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd [1999] 3 NZLR 239, (1999) 13 PRNZ 48 (HC).

7 See above, [2](c).

Central to my assessment of Mr Mailley’s application was a complete lack of evidence from Mr Mailley in support of his application. It has not been necessary for me to consider, therefore, the relevance of this trip to Mr Mailley’s current financial position.

Result

[11]               Mr Mailley’s application for a stay of the costs award pending appeal is dismissed.

[12]               Having successfully opposed the application, the second respondent is entitled to costs on a 1A basis.

Karen Clark J

Solicitors:

Thomas & Co, New Lynn West, Auckland for Applicant Ord Legal, Wellington for Second Respondent