Mailley v Shaw

[2021] NZHC 759

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1185

[2021] NZHC 759

BETWEEN

MARTIN MAILLEY

First Plaintiff

SABRINA NUTARELLI
Second Plaintiff

AND

ANTONY SHAW

First Defendant

THE NEW ZEALAND LAW SOCIETY

Third Defendant

Hearing:

29 April 2021

Appearances:

Plaintiffs are self-represented

D Cowan/J San Diego for the First Defendant D A Bullock for the Third Defendant

Judgment:

12 April 2021

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 12 April 2021 at 4:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Doug Cowan (Jose San Diego), Titirangi, Auckland, for the First Defendant

LeeSalmonLong (T P Mullins/D A Bullock), Auckland, for the Third Defendant

Copy for:
Martin Mailley/Sabrina Nutarelli, Gulf Harbour, Auckland, Plaintiffs

MAILLEY v SHAW [2021] NZHC 759 [12 April 2021]

[1]    On 29 April 2021 the Court will hear the plaintiffs’ application to review the decision of Associate Judge Andrew striking out their claim.1 On 22 March 2021, the plaintiffs requested the issue of a subpoena for the attendance of Mr Shaw at the review hearing. The subpoena requires Mr Shaw to bring certain records with him. In response to my minute of 23 March 2021, the plaintiffs have filed submissions why the subpoena should issue. The first defendant opposes the issue of the subpoena. The third defendant reserves its rights on whether the plaintiffs can give further evidence at the review hearing, but otherwise does not submit on the subpoena question.

[2]    This decision deals only with whether Mr Shaw can be required to come to the hearing on 29 April to give evidence. The plaintiffs want to give further evidence as well. The judge hearing the review application will decide whether to accept the other evidence.

[3]    The plaintiffs consider that they can require the Registrar to issue a subpoena as of right after making the appropriate written request under r 9.52 of the High Court Rules 2016:

9.52     Issue of subpoenas

(1)Orders of subpoena in form G 25 to require the attendance of witnesses at the trial to testify or to produce documents, or both, may be obtained by any party, at any time after the filing of the statement of claim.

(2)A party requiring the issue of an order of subpoena must file a written request to obtain it.

(3)The names of more than 1 witness may be included in an order of subpoena, but it is not necessary to show the names on the written request.

(4)Upon receiving a written request under this rule the Registrar must forthwith issue the order or orders of subpoena requested.

(Emphasis added)

1      Mailley v Shaw [2020] NZHC 3102.

[4]    Rule 9.52 does not apply here because the review of Associate Judge Andrew’s decision is not a “trial”. While “trial” is defined to include a hearing before a Judge alone,2 a trial is a hearing to decide the substantive merits of a case, where witnesses give their evidence in person. If evidence has been given by affidavit, deponents can be required to attend court to be cross-examined. Rule 9.52 comes within Part 9, subpart 7 of the Rules: Evidence at trial.

[5]    Hearings of interlocutory applications are not trials. They are dealt with separately in Part 7, subpart 2 of the Rules, where there are other evidence rules. The defendants’ application for strike-out under r 15.1 of the High Court Rules was an interlocutory application. Associate Judge Andrew heard the interlocutory application in chambers. On an application for a review of an associate judge’s decision in chambers under r 2.3 of the High Court Rules 2016 (now repealed), the Judge hearing the review has no more extensive powers or jurisdiction than the associate judge whose decision is reviewed but may receive further evidence.3 The evidence rules for interlocutory applications apply to the review hearing. Accordingly I consider whether the subpoena should issue under those rules.

[6]    There are two rules under which Mr Shaw might be required to come to court to give evidence:

7.27Evidence normally given by affidavit

(1)Evidence relating to interlocutory applications is given by affidavit.

(2)Despite subclause (1), in special circumstances, a Judge may accept oral evidence.

7.28Cross-examination of maker of affidavit

A Judge may in special circumstances, on the application of a party, order the attendance for cross-examination of a person who has made an affidavit in support of, or in opposition to, an interlocutory application.

[7]    Rule 7.27(2) applies when a proposed witness has not given an affidavit. A subpoena might be used if it were necessary to require the attendance of a witness

2      High Court Rules 2016, r 1.5.

3      High Court Rules 2016, r 2.3(4)(b).

when the Judge had decided to accept oral evidence. Rule 7.28 applies when the witness has given an affidavit. Here Mr Shaw swore an affidavit on 25 October 2019, so the second rule is more appropriate. Under both rules, a Judge, not the Registrar, decides whether to accept oral evidence or to require a deponent to be cross-examined and will do so only in special circumstances. “Special circumstances” is not defined. The words are wide, comprehensive and flexible, but indicate something abnormal, uncommon or out of the ordinary but less than extraordinary or unique.4 Conflicts between what deponents have said are not necessarily special circumstances that justify cross-examination.5 Evidence in a strike-out application may show that each side has a different version of what happened. Usually those conflicts are resolved at trial, not in the strike-out decision. On a strike-out application the judge decides whether the pleadings should be struck out, notwithstanding the factual disputes. It is not a mini-trial.

[8]    The plaintiffs say that there are three matters on which they wish to cross- examine Mr Shaw:

(a)the invoice of 27 August 2008 for $28,125;

(b)Mr Shaw’s knowledge of Mr Mailley’s mental health; and

(c)amendment to a client contract form faxed in December 2008.

[9]    They say that the invoice of August 2008 for $28,125 was fraudulent, being a device under which Mr Hart used the plaintiffs’ funds to pay off a debt Mr Hart owed Mr Shaw. Their memorandum sets out facts on which they will rely. Those facts discredit what Mr Shaw said in his affidavit.  That does not,  however,  mean that  Mr Shaw should be cross-examined. The strike-out application is essentially concerned with establishing whether the plaintiffs have a case against Mr Shaw, not with proving that case.   The conflict in testimony will not have to be resolved.     Mr Shaw does not need to be cross-examined for this part of the case.

4      Kidd v Van Heeren (1997) 11 PRNZ 422 (CA).

5      Paugra Holdings Ltd (in liq) v Harvestfield Holdings Ltd [2013] NZHC 2200.

[10]   On the question of mental health, the plaintiffs say that Mr Shaw is not to be believed in denying any knowledge or appreciation of Mr Mailley’s mental health issues. They will rely on a psychiatric assessment report ordered in September 2008, Mr Shaw’s charging them for reading the psychiatric report, a judgment of the North Shore District Court where Mr Mailley’s mental health was referred to in a bail application, where Mr Shaw was counsel.

[11]   The plaintiffs may be able to put that information before the court in the review hearing, and that may show that there are difficulties with Mr Shaw’s affidavit. But on review, the court will not need to decide whether the plaintiffs or Mr Shaw are correct. That is a trial issue. Again, Mr Shaw does not need not to be cross-examined for the plaintiffs to show that they have an arguable case on the mental health issue.

[12]   The plaintiffs wish to challenge a finding by Associate Judge Andrew that a client contract form had been amended. They will provide new evidence which will cast doubt on this. As with the other matters, the plaintiffs appear to have information to support their review application. Having that information, they do not need to cross- examine Mr Shaw, even though his affidavit is inconsistent with the information they intend to put before the court on the review application.

[13]   I am not satisfied that there are any special circumstances under r 7.27 or r 7.28 of the High Court Rules 2016. It is accordingly unnecessary for Mr Shaw to attend court in person to give evidence or to be cross-examined. The subpoena is not required.

…………………………………….

Associate Judge R M Bell