Mailley v Shaw - [2022] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA643/2021
[2022] NZCA 41

BETWEEN	MARTIN MAILLEY Appellant
AND	ANTONY SHAW First Respondent NEW ZEALAND LAW SOCIETY Second Respondent

Counsel:	Appellant in person D A Cowan and JEG San Diego for First Respondent T P Mullins, DAC Bullock and S D Wakefield for Second Respondent
Judgment: (On the papers)	8 March 2022 at 9.30 am

JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)

The application to review the Deputy Registrar’s decision concerning security for costs is declined.

____________________________________________________________________

REASONS

Introduction

Mr Mailley applies to review a decision of the Deputy Registrar, in which she dismissed his application to dispense with paying security for costs which he is required to pay in order to pursue his appeal from a judgment of Toogood J delivered on 28 October 2021.[1]

Background

[1]Mailley v Shaw [2021] NZHC 2876 [Judgment under appeal].

In July 2008, Mr Mailley was detained in custody pending his extradition to Australia to face a number of criminal charges. Mr Hart and Mr Shaw were representing Mr Mailley. Fees were rendered to Mr Mailley in relation to applications for bail, habeas corpus and the extradition proceedings. Mr Hart’s instructions were terminated when Mr Mailley became dissatisfied with fees charged by Mr Hart. Mr Ellis and Mr Minchin then joined Mr Mailley’s legal team. Mr Shaw’s instructions were terminated in August 2009, when Mr Mailley became dissatisfied with the level of his fees.
Mr Mailley filed complaints with the New Zealand Law Society (the NZLS) against Mr Hart, Mr Shaw and Mr Ellis concerning, amongst other matters, the level of the fees rendered to Mr Mailley. The complaint against Mr Hart was upheld. The complaints against Mr Shaw and Mr Ellis were dismissed.
In June 2015, Mr Mailley commenced proceedings in the High Court against Mr Shaw, Mr Ellis and the NZLS. The claim against Mr Ellis was settled.
Mr Mailley alleged Mr Shaw had, inter alia, rendered excessive fees, acted incompetently and made misleading statements in court. The essence of the claim against the NZLS was that it acted in bad faith when considering Mr Mailley’s complaint against Mr Shaw.
There were a number of amendments to the pleadings. There were also a number of applications that I do not need to recite. Suffice to note:
(a)On 24 November 2020, Associate Judge Andrew granted applications by Mr Shaw and the NZLS to strike out all causes of action.[2]
[2]Mailley v Shaw [2020] NZHC 3102.
(b)On 11 February 2021, Mr Mailley applied to have the Associate Judge recuse himself from determining costs in relation to the strike-out judgment.
(c)On 20 April 2021, Mr Mailley applied to have the Associate Judge recuse himself from determining any matter in the proceeding.
(d)On 21 April 2021, the Associate Judge:[3]
[3]Mailley v Shaw [2021] NZHC 841.
(i)ordered costs to Mr Shaw in the sum of $65,943.12 and to the NZLS in the sum of $58,264.97;[4] and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mailley v Shaw

Details

AGLC: Mailley v Shaw [2022] NZCA 41
Case: [2022] NZCA 41
Decision Date: 8 March 2022 at 9.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Martin Mailley, the appellant, sought to appeal a decision by Toogood J, which dismissed his application to have the Associate Judge recall certain costs judgments. The appeal's primary contention was that Toogood J lacked the jurisdiction to determine two recall applications filed by Mailley. The Court was required to determine whether the Deputy Registrar's decision to deny Mailley's application to dispense with paying security for costs was correct.

The key legal issue was whether the Deputy Registrar was correct in dismissing Mailley's application to dispense with paying security for costs. The Court had to consider whether Mailley had demonstrated that he lacked the ability to pay the security for costs and whether he was bringing an appeal that a solvent appellant would reasonably wish to prosecute. The Court had to examine the extraordinary procedural history of the case and determine whether the Deputy Registrar's decision was correct.

The Court found that the Deputy Registrar was correct in dismissing Mailley's application to dispense with paying security for costs. Based on the information before her, the Deputy Registrar was correct when she determined that Mailley had failed to demonstrate that he lacked the ability to pay security for costs. Although Mailley's affidavit suggested he had limited financial resources, that was not determinative. Mailley also had to show that he was bringing an appeal that a solvent appellant would reasonably wish to prosecute. The Court held that this was a rare case in which it could be confidently said that there was no merit in the grounds of appeal. In those circumstances, no solvent appellant would reasonably prosecute the appeal, and the respondents were entitled to the protection of security for costs.

The application to review the Deputy Registrar's decision concerning security for costs is declined.

Orders