Mailley v Shaw

[2022] NZSC 100

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 55/2022
 [2022] NZSC 100

BETWEEN	MARTIN MAILLEY Applicant
AND	ANTONY SHAW First Respondent
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

1. 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).

2. Mr Mailley makes an application for the recall of the 3 August 2022 leave judgment of this Court. 

3. 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].

   [5]Nuku v District Court at Auckland [2018] NZSC 39 at [2].

4. 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. 

5. The application for recall of this Court’s judgment of 3 August 2022 is dismissed.