| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 55/2022 [2022] NZSC 100 |
| BETWEEN | MARTIN MAILLEY |
| AND | ANTONY SHAW |
| NEW ZEALAND LAW SOCIETY Second Respondent |
| Court: | Glazebrook, O’Regan and Ellen France JJ |
Counsel: | Applicant in person |
Judgment: | 25 August 2022 |
JUDGMENT OF THE COURT
The application for recall of this Court’s judgment of 3 August 2022 (Mailley v Shaw [2022] NZSC 93) is dismissed.
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REASONS
On 3 August 2022, this Court dismissed Mr Mailley’s application for leave to appeal against a judgment of Collins J of 12 May 2022.[1] In that judgment, Collins J had dismissed an application to recall his judgment in Mailley v Shaw which had declined an application to review the Deputy Registrar’s decision concerning security for costs.[2]
[1]Mailley v Shaw [2022] NZCA 180 (Collins J).
[2]Mailley v Shaw [2022] NZCA 41 (Collins J).
Mr Mailley makes an application for the recall of the 3 August 2022 leave judgment of this Court.
The general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal.[3] A decision to recall a judgment will only be made in exceptional circumstances, such as those set out in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2).[4] A recall application cannot be used to relitigate the reasons provided in the leave judgment.[5]
[3]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 as cited in Craig v Williams [2019] NZSC 60 at [10].
[4]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
Nothing Mr Mailley has advanced warrants recall. Mr Mailley is merely attempting to relitigate the issues already dealt with in our leave judgment.[6]
[6]Mr Mailley says that the parties did not refer this Court to the Court of Appeal decision in Skelton v Howcroft [2018] NZCA 140 which confirmed the Court of Appeal’s decision in Sutcliffe v Tarr [2017] NZCA 360, [2018] 2 NZLR 92. That is not in fact correct. Both cases were referred to in Mr Mailley’s original leave submissions and the submissions for the second respondent also made reference to Sutcliffe v Tarr.
The application for recall of this Court’s judgment of 3 August 2022 is dismissed.
- AGLC
- Mailley v Shaw [2022] NZSC 100
- Case
- [2022] NZSC 100
- Decision Date
CaseChat Overview and Summary
The legal issue before the Court was whether the circumstances warranted the recall of the earlier judgment dismissing the applicant's application for leave to appeal. According to established legal principles, a judgment must generally stand, subject to appeal, unless there are exceptional circumstances that justify recall. The Court noted that the applicant's attempt to recall the judgment was not permissible as it sought to relitigate the issues already considered in the earlier judgment. The Court examined whether the applicant's arguments presented any new or exceptional circumstances that would warrant a recall of the judgment.
The Court found that the applicant was merely attempting to relitigate the issues already addressed in the leave judgment. The Court held that there were no exceptional circumstances present that would justify recalling the earlier judgment. The Court concluded that the applicant had not provided any new grounds or exceptional circumstances to warrant a recall, and thus dismissed the application for recall. The Court emphasised that the recall of a judgment is an exceptional remedy and should only be granted in truly exceptional circumstances, which were not present in this case.
Orders
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Background
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