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…

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 759
Case: [2021] NZHC 759
Decision Date: 12 April 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Martin Mailley and Sabrina Nutarelli, the plaintiffs, applied for a review of an earlier decision to strike out their claim against Antony Shaw, the first defendant, and the New Zealand Law Society, the third defendant. The plaintiffs, self-represented, sought to require Mr Shaw to appear at the review hearing and to bring certain documents with him. The first defendant opposed the issue of the subpoena, and the third defendant reserved its rights on whether the plaintiffs could give further evidence at the review hearing. The court considered whether the plaintiffs could require the issue of a subpoena as of right under r 9.52 of the High Court Rules 2016, and whether there were special circumstances to justify cross-examination of Mr Shaw under r 7.27 or r 7.28 of the High Court Rules 2016. The court found that Rule 9.52 did not apply to the review of an associate judge's decision, which is not a "trial." The court found that hearings of interlocutory applications, such as the review hearing, are dealt with separately in Part 7, subpart 2 of the Rules, where there are other evidence rules. The court found that the plaintiffs had not shown any special circumstances to justify requiring Mr Shaw to attend court in person to give evidence or to be cross-examined. The court found that the plaintiffs' evidence would not have to be resolved at the review hearing, as it was not a mini-trial. The court found that the subpoena was not required.

Orders