Mailley v Shaw
[2022] NZCA 41
•8 March 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA643/2021 [2022] NZCA 41 |
| BETWEEN | MARTIN MAILLEY |
| AND | ANTONY SHAW |
| Counsel: | Appellant in person |
Judgment: | 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
[4]At [38]–[39].
(ii)dismissed the 11 February 2021 recusal application.[5]
[5]At [7]–[10].
(e)On 23 April 2021, the Associate Judge issued a minute dismissing the 20 April 2021 recusal application.
(f)On 29 April 2021, Mr Mailley’s application to review the strike-out application was heard by Toogood J.
(g)On 13 July 2021, Mr Mailley applied to have the Associate Judge recall the 21 April 2021 costs judgment. For convenience I will refer to this as the first recall application.
(h)On 14 July 2021, Mr Mailley applied to have the Associate Judge recall his minute of 23 April 2021. I will refer to this as the second recall application.
(i)On 9 September 2021, Toogood J delivered a judgment in which he:[6]
[6]Mailley v Shaw [2021] NZHC 2359.
(i)dismissed the application to review the strike-out judgment;[7] and
[7]At [130].
(ii) dismissed Mr Mailley’s second recall application.[8]
[8]At [134(d)]. This part of the judgment was amended on 28 October 2021 for reasons described below.
(j)Mr Mailley then applied to have Toogood J recall his 9 September 2021 judgment. The Judge granted that application in a minute dated 28 October 2021. The 9 September 2021 judgment concerning the review of the strike-out judgment was recalled and then reissued in a contemporaneous judgment dated 28 October 2021.[9] The decision concerning the second recall application was recalled because the Judge had inadvertently conflated the second recall application with the first recall application.[10]
(k)In his contemporaneous judgment dated 28 October 2021, Toogood J:
(i)dismissed the first recall application;[11] and
(ii)dismissed the second recall application.[12]
(l)On 14 December 2021, Toogood J:[13]
(i)modified the strike-out costs judgment;[14] and
(ii)declined leave to appeal the strike-out review judgment.[15]
[9]See Judgment under appeal, above n 1, at [3].
[10]At [2].
[11]At [13].
[12]At [17].
[13]Mailley v Shaw [2021] NZHC 3433.
[14]At [56].
[15]At [26].
In his minute of 8 November 2021, Toogood J explained:[16]
(a)There was no foundation for Mr Mailley’s recall application, because the costs decision of Associate Judge Andrew which Mr Mailley had sought to have recalled was the subject of the review application that Toogood J was scheduled to hear on 10 November 2021 and which was subsequently the subject of his judgment of 14 December 2021.[17]
(b)Normally, a judge whose judgment a party seeks to have recalled is assigned to consider whether it should be recalled. This reflects judicial comity, common sense and fairness to the parties. It would therefore be unusual for a judge to make an order recalling the judgment of another judge if the original judge was available to consider the recall application.[18]
(c)There is, however, nothing in r 11.9 of the High Court Rules 2016 concerning recusal that mandates the judge whose judgment a party seeks to have recalled should be the judge who determines the recall application.[19]
[16]Mailley v Shaw HC Auckland CIV-2015-404-1185, 8 November 2021.
[17]At [5]. See Mailley v Shaw, above n 13.
[18]At [7].
[19]At [6].
Toogood J explained in his minute of 8 November 2021 that the circumstances before him were entirely different from cases in which recall applications are normally dealt with by the judge whose decision is sought to be recalled.[20] By the time Mr Mailley made his applications in July 2021 to recall the costs judgment made by Associate Judge Andrew on 21 April 2021:
(a)Mr Mailley had applied for a review of that judgment.
(b)Toogood J had directed the hearing of the review application of the substantive strike-out judgment.
(c)Toogood J was in the process of preparing his judgment in the review of the strike-out application.
[20]At [8]. See for example O’Neill v Toogood [2017] NZHC 795 at [51]; and HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2701 at [22].
Toogood J was satisfied that when Mr Mailley filed his recall applications he was doing so frivolously and vexatiously. The Judge was satisfied there was clearly no merit to either application. The Judge explained it would have been an abuse of the Court’s process for him to direct the Registrar to place the recall applications in front of the Associate Judge in circumstances where the Associate Judge would inevitably have dismissed them.[21]
The appeal
[21]At [9].
On 2 November 2021, Mr Mailley appealed the 28 October 2021 judgment of Toogood J. The normal filing fee was waived.
The gravamen of the appeal is that Toogood J lacked jurisdiction to determine the two recall applications made by Mr Mailley on 13 and 14 July 2021.
Security for costs was set at $14,120 under r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules). Mr Mailley then applied under r 35(6)(c) for security for costs to be either dispensed with entirely or reduced on two grounds:
(a)Mr Mailley’s impecuniosity; and
(b)the public importance of his appeal.
On 15 December 2021, the Deputy Registrar explained to Mr Mailley what information he needed to supply concerning his financial circumstances.
Mr Mailley responded on 4 January 2022, saying that the information he had supplied to the Court in support of his application for a waiver of the filing fee should be sufficient.
On 14 January 2022, the Deputy Registrar delivered her decision dismissing Mr Mailley’s application to dispense with paying security for costs.
Mr Mailley then filed the application for review that I am required to determine. He has supported his application with four memoranda and an affidavit, in which he says that:
(a)He is dependent on New Zealand’s superannuation to live day-to-day.
(b)He has no money available to pay security for costs.
(c)He does not own any chattels, fixtures, furniture or even a vehicle.
(d)He does not own any property, shares or have an interest in any trust.
(e)The waiver of the filing fee was evidence of his constrained financial circumstances.
Mr Shaw and the NZLS opposed the Court receiving Mr Mailley’s affidavit concerning his financial circumstances. They emphasise that the affidavit was filed after the Deputy Registrar reached her decision and in circumstances where they have had no opportunity to adequately respond to Mr Mailley’s assertions about his financial circumstances. I have considered Mr Mailley’s affidavit but, as explained below, not much turns on it.
Legal principles
The principles for determining whether security for costs should be dispensed with were reviewed by the Supreme Court in Reekie v Attorney-General.[22] Security for costs should be dispensed with if “it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security”.[23] A respondent may be required to do so in order to preserve access to this Court by an impecunious appellant who is bringing an appeal that a solvent appellant would reasonably wish to prosecute.[24]
Analysis
[22]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[23]At [31].
[24]At [35].
Based on the information before her, the Deputy Registrar was correct when she determined Mr Mailley had failed to demonstrate he lacked the ability to pay security for costs.
On its face, the information set out in Mr Mailley’s affidavit of 15 February 2022 suggests he has limited financial resources. That, however, is not determinative because Mr Mailley must also show that he is bringing an appeal that a solvent appellant would reasonably wish to prosecute.
The extraordinary procedural tangle in this case was caused entirely by Mr Mailley making two recall applications after he had applied to review the decision, which was the subject of the subsequent recall application.
Once the High Court Judge was seized of and in the process of determining the applications to review it was entirely proper and sensible for him to deal with the recall applications.
Although recall applications are normally dealt with by the judge whose decision or judgment is the subject of the application, r 11.9 clearly permits another judge of the same Court to hear and determine a recall application.
Toogood J was correct when he said that it would have been a waste of judicial resources and time for the recall applications to have been placed before the Associate Judge. Had that course been followed, there would have been further delay and costs incurred by the respondents. The Associate Judge would inevitably have dismissed the recall applications.
This is a rare case in which it can be confidently said there is no merit in the grounds of appeal. In those circumstances, no solvent appellant would reasonably prosecute the appeal.
The respondents are therefore entitled to the protection of security for costs.
Result
The application to review the Deputy Registrar’s decision concerning security for costs is declined.
Solicitors:
Ord Legal, Wellington for First Respondent
Lee Salmon Long, Auckland for Second Respondent
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