Mailley v Shaw
[2021] NZHC 2876
•28 October 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-1185
[2021] NZHC 2876
BETWEEN MARTIN MAILLEY
First Plaintiff
SABRINA NUTARELLI
Second PlaintiffAND
ANTONY SHAW
First Defendant
TONY ELLIS (Discontinued) Second Defendant
THE NEW ZEALAND LAW SOCIETY
Third Defendant
On papers Judgment:
28 October 2021
JUDGMENT OF TOOGOOD J
[Applications for recall of costs judgment and minute of Associate Judge Andrew on strike-out]
This judgment was delivered by me on 28 October 2021 at 10am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Doug Cowan, Auckland for first defendant
Lee Salmon Long, Auckland for third defendant
Copy to:
The plaintiffs
MAILLEY v SHAW [2021] NZHC 2876 [28 October 2021]
Introduction
[1] On 24 November 2020, Associate Judge Andrew delivered a judgment striking out all causes of action by the plaintiffs against the defendants (the strike-out judgment).1 In a judgment dated 21 April 2021, the Associate Judge awarded costs to the defendants (the strike-out costs judgment).2 On 9 September 2021 , I issued a judgment on an application by the plaintiffs for a review of the strike-out judgment under s 26P(l) of the Judicature Act 1908, in accordance with r 2.3 of the High Court Rules (the strike-out review judgment).3 I dismissed the application and made ancillary orders and directions. I reserved questions of costs.
[2] At [134(d)] of the strike-out review judgment, I dismissed an application dated 14 July 2021 by Mr Mailley (the second recall application) seeking a decision of Associate Judge Andrew recalling the strike-out costs judgment “so far as it concerns his recusal”.4 In doing so, I conflated the second recall application with an earlier application by Mr Mailley for recall dated 13 July 2021 (the first recall application), as Mr Mailley has pointed out. Moreover, in dismissing the second recall application, I failed to address an argument by Mr Mailley that Associate Judge Andrew should have recalled the strike-out costs judgment, before considering the second recall application on the basis that the Associate Judge had not taken account of a recusal application filed by Mr Mailley on 20 April 2021.
[3] I remedy those errors in a minute issued contemporaneously with this judgment by:
(a)Recalling the strike-out review judgment.
(b)Amending the strike-out review judgment by replacing the entire text of [134(d)] with the following:
1 Mailley v Shaw [2020] NZHC 3102.
2 Mailley v Shaw [2021] NZHC 841.
3 Mailley v Shaw [2021] NZHC 2359.
4 In the strike-out costs judgment, Associate Judge Andrew dismissed an application dated 11 February 2021 by Mr Mailley for the Associate Judge to recuse himself from determining the defendants’ applications for costs on the strike-out judgment: Mailley v Shaw, above n 2, at [4]-[11].
Fourth, there are further interlocutory applications dated 13 July 2021 and 14 July 2021 seeking to recall the costs judgment of Associate Judge Andrew of 21 April 2021 and his subsequent minute of 23 April 2021. It is appropriate to address those applications in a separate judgment that will be issued before the hearing of the application by Mr Mailley and Ms Nutarelli to review the costs decision of Associate Judge Andrew referred to at [134(b)] above.
(c)Directing that the amended strike-out review judgment be re-issued contemporaneously with the minute and a separate judgment (this one) addressing the first and second recall applications.
Chronology of relevant interlocutory applications and decisions
[4] In the strike-out judgment, Associate Judge Andrew reserved questions of costs; they were not quickly resolved:
(a)On 18 January 2021, Mr Mailley filed an application for an order staying the determination of costs; it was dismissed by the Associate Judge on 4 February 2021.5 Mr Mailley complains that Associate Judge Andrew made that decision in his absence after he was absent from the call of the matter in court because he was unwell. He did not inform the Court of the reasons for his non-appearance until he filed an affidavit on 9 February 2021, and he does not say what he might have said to the Court about the application that would have made a difference to the outcome of the hearing.
(b)On 9 February 2021, Mr Mailley filed an application for a review of Associate Judge Andrew’s decision to dismiss the application for a stay of the determination of costs; it was dismissed by me on 3 March 2021.6
(c)On 11 February 2021, Mr Mailley filed an application for a decision by Associate Judge Andrew to recuse himself from the determination of costs on the strike-out judgment on the grounds of apparent bias or judicial misconduct (the first recusal application).
5 Mailley v Shaw HC Auckland CIV 2015-404-1185, 4 February 2021 (Minute of Associate Judge Andrew).
6 Mailley v Shaw HC Auckland CIV 2015-404-1185, 3 March 2021 (Minute of Toogood J).
(d)On 20 April 2021, Mr Mailley filed an application for a decision by Associate Judge Andrew to recuse himself from all matters pertaining to the proceeding, including the determination of costs on the strike-out judgment (the second recusal application). The grounds for the application were apparent bias or judicial misconduct, but the application included further particulars, including a decision of the Associate Judge on 19 April 2021 declining applications by Mr Mailley for transcripts of hearings.7
(e)On 21 April 2021, Associate Judge Andrew issued the strike-out costs judgment in which he also dismissed the first recusal application.
(f)On 23 April 2021, Associate Judge Andrew issued a minute in which he rejected the second recusal application, holding that there was nothing in the application that provided any basis for him to reconsider the issue of recusal.8 The Associate Judge also held that, in any event, the critical issue of whether the proceeding should have been struck out could be addressed at the strike-out review hearing on 29 April 2021.9
(g)On 13 July 2021, after the hearing of the strike-out review application but before the delivery of the strike-out review judgment, Mr Mailley filed an application applying to Associate Judge Andrew to recall the strike-out costs judgment (the first recall application). The application is founded on the ground that the Associate Judge had not considered the second recusal application dated 20 April 2021.
(h)On 14 July 2021, Mr Mailley filed an application applying to Associate Judge Andrew to recall his minute of 23 April declining the second recusal application (the second recall application). The application is
7 Mailley v Shaw HC Auckland CIV 2015-404-1185, 19 April 2021 (Minute of Associate Judge Andrew).
8 Mailley v Shaw HC Auckland CIV 2015-404-1185, 23 April 2021 (Minute of Associate Judge Andrew).
9 At [12].
founded on the ground that the Associate Judge had not considered the second recusal application dated 20 April 2021.
The first and second recall applications
The first recall application dated 13 July 2021
[5] In the first recall application, Mr Mailley submits that, when Associate Judge Andrew delivered the strike-out costs judgment on 21 April 2021, he was not in a position to make an impartial and principled decision based on the second recusal application of 20 April 2021 that had not been placed before him. Mr Mailley claims that the second recusal application contains new grounds for recusal that had not been included in the first application. Mr Mailley also complains that Judge Andrew delivered his ruling on the first recusal application 69 days after it was filed, describing the delay as “inordinate”. He claims without reference to authority that:
... it is normal practice for a judicial officer to make a ruling on a recusal application within a few days.
[6] Mr Mailley’s application to the Associate Judge to recall the strike-out costs judgment comprises submissions and references to authority, including a quotation from a passage in the judgment of MacKenzie J in Greymouth Petroleum Ltd v Solicitor-General.10 In that case, MacKenzie J had delivered a judgment unaware that the plaintiff had filed a recusal application two days earlier. The Judge held that the plaintiff was entitled to expect that the recusal application would have been dealt with before the delivery of the judgment and that there was a risk that justice may not be seen to have been done. He recalled the judgment and directed a rehearing.
[7] The circumstances in which Associate Judge Andrew made his decisions on the two recusal applications are markedly different from those facing MacKenzie J and the Greymouth Petroleum case is readily distinguishable. In Greymouth Petroleum, MacKenzie J had not considered the issue of recusal prior to issuing his judgment. In the strike-out costs decision, however, Andrew AJ addressed the first recusal application directly and rejected it, giving reasons based on a consideration of the applicable principles.
10 Greymouth Petroleum Ltd v Solicitor-General [2010] NZHC 250.
[8] Mr Mailley may be correct that judges commonly deal with recusal applications promptly if there is arguable merit in them, so that the administration of the proceeding is not unduly delayed if the matter needs to be referred to another judge. But Associate Judge Andrew was under no obligation to address the first recusal application with any degree of urgency after it was filed in February 2021, and he acted properly in addressing it at the time he delivered the strike-out costs judgment.
[9] In this case, Mr Mailley’s first recusal application was founded on the proposition that the Judge had previously ruled against him on two occasions. As the Judge said in the strike-out costs judgment:11
… It is well established that a basis for recusal does not arise merely because a judge has ruled against a particular party in the past, including if a previous decision was adverse to that party.
[10] In making that observation, Associate Judge Andrew was undoubtedly correct. The Associate Judge relied on the judgment of the Court of Appeal in R v Cullen,12 and the position was also addressed directly by the Court of Appeal in Muir v Commissioner of Inland Revenue:13
[101] We know of no common law jurisdiction which accepts that a Judge’s adverse rulings are disqualifying per se. The problem is rather whether an aggrieved litigant should be permitted to seek recusal on the basis of rulings that are either so patently erroneous or so disproportionate as to suggest that something untoward must have motivated them. Even a statistical approach cannot obtain here: …
[11] While it has to be accepted that there are occasions when a judge’s prior rulings might lead a reasonable person to question whether the judge would remain impartial in any subsequent proceedings, that could be relevant to the question of judicial bias only in the rarest of circumstances.14 There is huge potential for abuse if recusal applications were permitted to be predicated on a party’s subjective perceptions regarding a judge’s ruling.15
11 Mailley v Shaw [2021] NZHC 841 at [8].
12 R v Cullen [1992] 3 NZLR 577 (CA).
13 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495.
14 At [98].
15 At [100].
[12] Associate Judge Andrew pointed out that Mr Mailley bore the onus of “firmly” establishing an assertion of judicial bias, and that it was not enough to simply identify circumstances that give a “vague sense of unease or disquiet”.16 The Associate Judge was right to find that there were no circumstances advanced that might possibly lead to a reasonable apprehension by a fully informed observer that the case might have been decided other than on its merits. Nor was there any logical connection between the matters Mr Mailley complained of and his “feared deviation” from impartiality.17
[13] Mr Mailley has not established any of the recognised grounds for recalling the strike-out costs judgment, as set out in Horowhenua County v Nash (No 2).18 In keeping with the observations of Wild CJ in that case, it is more in accord with good order that the substantive issues concerning costs on the strike-out application be dealt with at the time of the review of the strike-out costs judgment on 10 November 2021. There is no proper basis on which Associate Judge Andrew should recall the strike-out costs judgment and I dismiss the first recall application accordingly without referring it to the Associate Judge for consideration.
The second recall application dated 14 July 2021
[14] In the second recall application Mr Mailley argues that by 23 April 2021, when Associate Judge Andrew declined to recuse himself on the grounds set out in the 20 April 2021 recusal application, the Associate Judge was:
... seriously conflicted … [because he] knew that if he recused himself on 23 April 2021 that would render his costs decision of 21 April 2021 nugatory, null and void.
[15] Mr Mailley says that the Judge’s conduct “appears reprehensible and appears to justify a complaint to the Judicial Complaints Commission”. He alleges that the “incident” is one reinforcing the plaintiffs’ view that Associate Judge Andrew is biased against the plaintiffs and in favour of the defendant, and that the Associate Judge should have followed the course adopted in the Greymouth Petroleum case.
16 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
17 At [4], [20], [86] and [93].
18 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633.
[16] The second recusal application was properly rejected by Associate Judge Andrew as not providing any basis for him to reconsider the issue of recusal that he had not addressed in rejecting the recusal application dated 11 February 2021. In such circumstances it would have been palpably time-wasting and pointless for the Judge to set aside his strike-out costs judgment and rule on the second recusal application or have the matter put before another judge for consideration. It would inevitably have been disallowed. There is no merit at all in the claim that the Judge breached any principle of natural justice, fairness or judicial integrity in simply dismissing the second application for recusal. Mr Mailley’s assertions that Associate Judge Andrew was “seriously conflicted” and that his conduct was “reprehensible” are wholly without foundation and abusive of the Court’s process.
[17] For those reasons, I am satisfied that Associate Judge Andrew was right to reject the second recusal application and there is no proper basis on which the Associate Judge should recall the strike-out costs judgment before it is reviewed. I dismiss the second recall application accordingly without referring it to the Associate Judge for consideration.
Costs
[18] The defendants are entitled to costs on both the first and second recall applications, calculated on a category 2B basis in accordance with the High Court Rules. They shall have until 19 November 2021 to file and serve memoranda as to costs. Mr Mailley shall have until 10 December 2021 to file and serve a memorandum in reply. The memoranda shall be 1.5-spaced, typed in Times New Roman 12-point font and shall not exceed two pages in length, including footnotes but excluding the coversheet. Costs shall be determined on the papers unless the Court directs otherwise.
Toogood J
3
6
1