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Mailley v Shaw

Mailley v Shaw

Case [2021] NZHC 841 21 April 2021

Admissibility of Evidence

Civil Litigation & Procedure

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL DETERMINATION OF THE REVIEW PROCEEDINGS CIV-2015-404-001185 OR FURTHER ORDER OF THE COURT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-001185

[2021] NZHC 841

BETWEEN
MARTIN JAMES MAILLEY

First Plaintiff

SABRINA NUTARELLI
Second Plaintiff

AND

ANTONY SHAW

First Defendant

NEW ZEALAND LAW SOCIETY

Third Defendant

Hearing: On the papers

Counsel:

First Plaintiff in Person Second Plaintiff in Person

J Long and J E G San-Diego for First Defendant
T P Mullins and D A C Bullock for Third Defendant

Judgment:

21 April 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 21 April 2021 at 2.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date…………………………

MAILLEY & OR v SHAW & OR [2021] NZHC 841 [21 April 2021]

Introduction

[1] In my judgment of 24 November 2020, I struck out the plaintiffs’ proceedings against the first and third defendants.1

[2]This judgment is my decision on costs.

[3] Before addressing the question of costs, I deal with an application by Mr Mailley dated 11 February 2021, seeking that I recuse myself from determining costs on the grounds of apparent bias or judicial misconduct in relation to my substantive judgment of 24 November 2020.

Recusal

[4] In accordance with s 171 of the Senior Courts Act 2016, the Chief High Court Judge has published recusal guidelines for the High Court. The New Zealand High Court Recusal Guidelines (the Guidelines)2 outline the general principles, which guide whether a Judge should recuse himself or herself. The principles incorporate the two- stage test established by the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd.3
[5]The relevant parts of the Guidelines provide:4

1.1A judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist.

1.2A judge should recuse him or herself if, in the circumstances, a fair- minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

1.3The standard for recusal is one of “real and not remote possibility”, rather than probability.

1.4The test is two-stage one. The judge must consider:

1      Mailley & Or v Shaw & Or [2020] NZHC 3102.
2      New    Zealand    High    Court    Recusal    Guidelines    (June    2017),    available    at
< Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35 (SC) at [3]; citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
4      (Citations omitted).

1.4.1First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the Judge might decide…

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 [2021] NZHC 841
Case: [2021] NZHC 841
Decision Date: 21 April 2021

CaseChat Overview and Summary

In the case of Mailley v Shaw, the plaintiffs, Martin James Mailley and Sabrina Nutarelli, sought to challenge the proceedings against the first and third defendants, Antony Shaw and the New Zealand Law Society (NZLS), respectively. The primary focus of the dispute was on the costs incurred during the litigation process. The High Court of New Zealand, Auckland Registry, presided over by Associate Judge P J Andrew, was tasked with determining the appropriate costs to be awarded to the defendants.

The court was required to decide whether an award of increased or indemnity costs was justified, considering the principles outlined in the High Court Rules 2016. Specifically, the court needed to determine whether the plaintiffs' conduct contributed unnecessarily to the time and expense of the proceedings. The court also had to address an application by Mr Mailley to recuse the judge from determining costs on the grounds of apparent bias or judicial misconduct.

The court dismissed Mr Mailley's recusal application, finding that there was no basis for the assertion of judicial bias. The court found that Mr Mailley had not met the onus of establishing that the judge might decide the case other than on its merits. Regarding the costs, the court rejected the plaintiffs' argument that there should be no award of costs to either defendant. Both defendants were deemed successful, and the plaintiffs' re-litigation of the merits was not a valid basis for opposing a costs award.

The court concluded that an award of increased costs was appropriate for both defendants. For Mr Shaw, the court found that the plaintiffs had pursued arguments that lacked merit, failed to prosecute their claims timely, and contributed to unnecessary costs. Therefore, Mr Shaw was awarded a 25 per cent uplift on 2B costs, totaling $63,255.63, plus disbursements. The NZLS was also awarded increased costs of 50 per cent on all steps, totaling $58,264.97, as the plaintiffs had continued to pursue their claims despite clear statutory immunity and multiple opportunities to reconsider their position.

In summary, the court ordered the plaintiffs to pay the defendants the total costs and disbursements, with Mr Shaw receiving $65,943.12 and the NZLS receiving $58,264.97, both excluding GST. The recusal application was dismissed, and the plaintiffs retained their rights to review and appeal the costs decision.

Orders