Mailley v Shaw

[2021] NZCA 593

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA597/2021
 [2021] NZCA 593

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

Hearing:	8 November 2021
Court:	Gilbert J
Counsel:	Appellant in person J E G San Diego for First Respondent T P Mullins and D A C Bullock for Second Respondent
Judgment:	9 November 2021 at 2 pm

JUDGMENT OF GILBERT J

AThe application for stay is declined.

BCosts are reserved.

____________________________________________________________________

REASONS

1. In a judgment delivered on 24 November 2020, Associate Judge Andrew struck out a proceeding Mr Mailley (as first plaintiff) commenced against the respondents in June 2015 (the Strike-out judgment).[1]  In a costs judgment delivered on 21 April 2021, the Associate Judge awarded costs to the respondents (the Costs judgment).[2]

   [1]Mailley v Shaw [2020] NZHC 3102.

   [2]Mailley v Shaw [2021] NZHC 841.

2. Mr Mailley applied for a review of the Strike-out judgment and the Costs judgment. 

3. The application for review of the Strike-out judgment was dismissed by Toogood J in a judgment delivered on 9 September 2021 and reissued on 28 October 2021 (the Review judgment).[3] 

   [3]Mailley v Shaw [2021] NZHC 2359 [Review judgment].

4. Mr Mailley’s application for leave to appeal against the Review judgment is due to be heard by Toogood J at 2.15 pm on 10 November 2021 together with Mr Mailley’s application for review of the Costs judgment.  A half-day hearing has been allocated but the Judge has indicated that arrangements will be made for additional hearing time if this turns out to be necessary.[4]    

   [4]Mailley v Shaw HC Auckland CIV-2015-404-1185, 8 November 2021 (Minute of Toogood J).

5. In his Review judgment, the Judge directed that all parties’ submissions in connection with the review of the Costs judgment were to be limited to three pages (excluding the cover sheet).[5]

   [5]Review judgment, above n 3, at [134(b)].

6. This direction prompted Mr Mailley to file the present appeal against the three‑page limit.  He sought a stay of the 10 November 2021 hearing in the High Court pending this Court’s determination of the appeal.  Brown J directed Mr Mailley to apply in the first instance for a stay in the High Court.[6]  Mr Mailley accordingly applied to the High Court for a stay, but this was declined by Toogood J on 2 November 2021.[7] 

   [6]Mailley v Shaw CA597/2021, 27 October 2021 (Minute of Brown J).

   [7]Mailley v Shaw HC Auckland CIV-2015-404-1185, 2 November 2021 (Minute of Toogood J).

7. Mr Mailley accordingly now seeks an order from this Court for a stay of the 10 November 2021 hearing.  A hearing was convened before me at short notice by telephone on 8 November 2021 at 2.15 pm.  I dismissed the application for stay at the conclusion of the hearing and indicated that my brief reasons for doing so would follow.  I reserved the question of costs to allow the respondents to take instructions as to whether costs would be sought given the matter was able to be dealt with expeditiously. 

8. As Mr Mailley accepted, the principal focus of the hearing in the High Court tomorrow will be the application for leave to appeal against the Review judgment.  The application for review of the Costs judgment is somewhat secondary.  This is because costs generally follow the event and are assessed in accordance with the High Court Rules 2016 and by the application of well-settled principles. 

9. Mr Mailley has filed a synopsis of his submissions for the purposes of the review of the Costs judgment.  This synopsis complies with the Judge’s directions.  Mr Mailley will have the opportunity to develop these submissions in oral argument at the hearing.  

10. In the event Mr Mailley is unsuccessful, he has indicated he will likely apply to this Court for leave to appeal.  If there are any deficiencies in the hearing or the process, he will be able to raise these issues in support of any such application.

11. I can see no good reason to grant a stay of the hearing.  On the contrary, I consider it is in everyone’s interest for it to proceed without further delay.  For these reasons, I declined the application for stay.     

Result

1. The application for stay is declined.

2. Costs are reserved.

Solicitors:
Ord Legal, Wellington for First Respondent
LeeSalmonLong, Auckland for Second Respondent