Mailley v New Zealand Law Society
[2024] NZHC 3485
•20 November 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-44
[2024] NZHC 3485
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of the respondent’s decision to decline the applicants’ claim on the Lawyers Fidelity Fund
BETWEEN
MARTIN JAMES MAILLEY
Applicant
AND
THE NEW ZEALAND LAW SOCIETY
Respondent
Hearing: On the Papers Counsel:
No appearance for Applicant
K M Hursthouse for Respondent
Judgment:
20 November 2024
JUDGMENT OF McQUEEN J
[1] In a judgment dated 13 September 2024, I granted an application by the New Zealand Law Society (the Law Society) for security for costs and declined applications by Mr Mailley for leave to issue interrogatories and to exclude part of the evidence (the Judgment).1 In a judgment dated 14 November 2024, I awarded costs in favour of the Law Society (the Costs Judgment).2
[2] Mr Mailley filed an application seeking leave to appeal against the Judgment on 11 October 2024. The Law Society opposes the application.
1 Mailley v New Zealand Law Society [2024] NZHC 2648.
2 Mailley v New Zealand Law Society [2024] NZHC 3391 [Costs Judgment].
MAILLEY v THE NEW ZEALAND LAW SOCIETY [2024] NZHC 3485 [20 November 2024]
[3] When the application for leave to appeal was called in the Judge’s Chambers List on 11 November 2024, there was no appearance by or for Mr Mailley. Despite Mr Mailley’s failure to appear, directions were made allowing Mr Mailley until 18 November 2024 to file any submissions in support of his application for leave to appeal.3 The Law Society was to file any submissions in reply by 25 November 2024, only if Mr Mailley filed submissions as directed. The matter was to be determined on the papers. Mr Mailley has not filed any submissions and accordingly I now determine the application.
The application
[4]Mr Mailley identifies the following grounds for seeking leave to appeal:
(a)the Judgment is unsafe, arguably containing errors of law and/or fact;
(b)the determined $25,000 security for costs includes a significant amount of historical work already undertaken by the Law Society. This is contrary to the established principle that security for costs must only cover likely costs for the balance of the proceeding;
(c)the Law Society filed submissions on costs on 3 October 2024 seeking
$16,224.01 and disbursements for the historical work which it has now been granted security for costs on. This is tantamount to a double jeopardy for Mr Mailley. It is unfair and a miscarriage of justice;
(d)after deducting the Law Society’s historical work costs ($16,224.01), the proper starting point for determining security for costs would appear to be around $15,777 not $32,000; and
(e)the Law Society sealed the Judgment quickly, preventing a recall application.
[5]Mr Mailley relies on s 20 of the Judicial Review Procedure Act 2016.
3 Mailley v New Zealand Law Society HC Wellington CIV-2024-485-44, 11 November 2024 (Minute of McQueen J).
Legal principles—leave to appeal
[6] Section 20 of the Judicial Review Procedure Act provides that any party who is dissatisfied with an interlocutory or final order made in respect of an application for judicial review may appeal to the Court of Appeal in accordance with s 56 of the Senior Courts Act 2016. Section 56(3) of the Senior Courts Act provides:
No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
[7] The appeals contemplated under s 56(4) of the Senior Courts Act are those striking out or dismissing the whole or part of a proceeding, claim, or defence, or granting summary judgment. The present appeal does not fall within this category.
[8] Mr Mailley filed his notice of appeal within 20 working days but as it is an appeal governed by s 56(3) of the Senior Courts Act, leave from this Court is required.
[9] The Court of Appeal set out the principles in relation to leave to appeal under s 56(3) in Greendrake v District Court of New Zealand:4
… the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.5 The following considerations were recognised as relevant on an application for leave to appeal:
(a) a high threshold exists;
(b) the applicant must identify an arguable error of law or fact;
(c) the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d) the circumstances must warrant incurring further delay; and
(e) the ultimate question is whether the interests of justice are served by granting leave.
4 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
5 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
Should leave to appeal be granted?
[10] I deal with each of Mr Mailley’s grounds of appeal in turn to determine if Mr Mailley has identified an arguable error of law or fact.
The Judgment is unsafe, containing errors of law and/or fact
[11] The Law Society contends that the Judgment is not unsafe. As there is no particularisation from Mr Mailley of how the Judgment contains errors of fact or law, and none are apparent to me, I conclude that this ground is not made out.
Security for costs includes historical work already undertaken and contrary to established principle
[12]In the Judgment, I stated:
[53] It is generally inappropriate to make an order for security for costs that have been incurred prior to the application.6 I consider that here, however, where counsel for the Law Society wrote to Mr Mailley at a very early stage explaining why his claim could not succeed and asking for a proposal for security for costs, that the initial costs incurred by the Law Society in commencing its defence are properly included in the calculation.
[13] I remain of the view that in the circumstances before me this was an appropriate approach and I cannot see any error in law. This ground fails.
Overlap between grant of security for costs and costs sought by the Law Society
[14]In the Costs Judgment, I ordered that Mr Mailley pay increased costs of
$15,594.75, disbursements of $629.26 and interest under s 10 of the Interest on Money Claims Act 2016. I recorded that the memoranda on case management required in relation to proceeding to a hearing of the Law Society’s application for security for costs and the two applications made by Mr Mailley were not the memoranda to be filed to progress the substantive judicial review proceeding to hearing, which were allowed for in the order made for security for costs.7
6 Pickard v Ambrose HC Wellington CIV-2003-091-143, 13 August 2009 accepted on appeal Ambrose v Pickard [2009] NZCA 502 at [42]; and adopted in Sisson v IAG New Zealand Ltd [2014] NZHC 616 at [71]–[72] and Oxygen Air Ltd v Electronics Australia Pty Ltd [2018] NZHC 2504, [2018] NZAR 1699 at [74].
7 Costs Judgment, above n 2, at [11].
[15] Accordingly, I am satisfied that there is no double-counting as alleged by Mr Mailley. This ground fails.
[16] This conclusion also resolves Mr Mailley’s fourth ground, which seeks to recalculate what he says is the proper basis for determining security for costs. I do not consider there was any double-counting in the calculation of security for costs award, therefore the starting point for security for costs is not in error.
[17] Also relevant here is the Law Society’s submission, which I accept, that the quantum of security is ultimately at the Court’s discretion (and notably was ordered at a somewhat lower level than the Law Society sought).
The Law Society sealed the Judgment quickly, preventing an application to recall the Judgment
[18] I agree with the Law Society that the unavailability of recall is not a proper ground for leave to appeal and accordingly, this ground fails.
Conclusion
[19] Mr Mailley has not identified an arguable error of law or fact and therefore for this reason alone the application must fail. For completeness, I do not consider that any of the alleged errors have any general or public importance, nor that there are any circumstances that warrant incurring further delay. Overall, I am satisfied that the interests of justice do not support the grant of leave to appeal.
Costs
[20] The Law Society seeks costs in relation to the application. I consider costs are warranted. I do not, however, intend to provide any opportunity for either party to make any submissions as to costs in the circumstances. Mr Mailley has not taken any steps since filing his application and in my view the Law Society should not be put to the further cost of making submissions.
[21] I consider that scale costs on a 2B basis are appropriate. I have had regard to the following items in sch 3 of the High Court Rules 2016: item 11 (filing
memorandum for mentions hearing), item 12 (appearance at mentions hearing) and item 23 (filing opposition to interlocutory application). I calculate those costs as
$2,868. An order for disbursements is also appropriate in relation to the fee applicable for filing a notice of opposition under the High Court Rules Fee Regulations 2013.
Result
[22]The application for leave to appeal is dismissed.
[23]Mr Mailley is to pay the Law Society costs of $2,868 and disbursements of
$143.
McQueen J
Solicitors:
Lee Salmon Long, Auckland for Respondent
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