Mailley v Shaw

[2020] NZHC 3102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-001185

[2020] NZHC 3102

BETWEEN

MARTIN JAMES MAILLEY

First Plaintiff

SABRINA NUTARELLI
Second Plaintiff

AND

ANTONY SHAW

First Defendant

NEW ZEALAND LAW SOCIETY

Third Defendant

Hearing:

21 October 2020

Appearances:

First Plaintiff in Person Second Plaintiff in Person M Lyttleton in attendance

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

Judgment:

24 November 2020

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge P J Andrew on 24 November 2020 at 2.00 pm

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

MAILLEY & OR v SHAW & OR [2020] NZHC 3102 [24 November 2020]

Table of Contents

Introduction  [1]

Factual background  [6]

The pleadings  [53]

Relevant legal principles  [54]

Analysis and decision  [59]
Application by Mr Shaw to strike out  [61]
Breach of fiduciary duty  [71]

Breach of contract  [79]

Dishonesty  [85]

Claims in negligence  [95]

Limitation issues  [99]

Conclusion on Mr Shaw’s application to strike out Mr Mailley’s claims [110] Conclusion on Mr Shaw’s application to strike out Ms Nutarelli’s claims [116] Applications by the NZLS to strike out the claims of both plaintiffs  [123] Result  [146]

Introduction

[1]    After protracted litigation spanning  eight  years,  Martin  James  Mailley  (Mr Mailley), the first plaintiff, was extradited to Queensland in 2016 to face fraud charges.1 For a limited 12-month period in 2008 – 2009, he was legally represented by Antony Shaw (Mr Shaw), barrister, the first defendant. Mr Mailley had previously been represented by Barry Hart (Mr Hart), barrister.

[2]    These proceedings were filed in 2015 and the current statement of claim is in effect the sixth version of the plaintiff’s pleadings.2 At issue are the conduct and fees of Mr Shaw, as counsel for Mr Mailley, and the alleged failings of the New Zealand Law Society (NZLS), the third defendant, to investigate and uphold complaints brought by Mr Mailley about the conduct of Mr Shaw and his fees.

[3]    Mr Shaw and the NZLS now seek to strike out the proceedings under r 15.1 of the High Court Rules 2016 on the grounds that they are vexatious and an abuse of process, incapable of success and statute barred.

[4]    The plaintiffs’ pleadings contain multiple defects. These defects are discussed below. The critical issue to address in relation to Mr Shaw is whether, in assessing the multiple defects in combination and overall, the high threshold for strike out under    r 15.1 has been reached.

[5] The critical issue to address in relation to the NZLS is the application of s 272 of the Lawyers and Conveyancers Act 2006 (LCA 2006), namely the express immunity for the NZLS from civil claims.

Factual background

[6]    Attached as Schedule 1 is a chronology of the relevant events. A comprehensive understanding of the background and context is critical to determining the strike out applications.

1      Mailley v District Court at North Shore [2016] NZCA 83 at [75].

2      The original statement of claim is dated 2 June 2015. There was then a “revised statement of claim” dated 22 January 2016, an “amended statement of claim” dated 17 October 2018, an “amended statement of claim” against the second defendant dated 2 November 2018, a “second amended statement of claim” dated 16 November 2018, and the current pleading, “the third amended statement of claim” dated 26 August 2020.

[7]    In 2005, the Queensland District Court issued a warrant for Mr Mailley’s arrest. He had earlier been committed for trial there on 11 counts of fraud (involving more than $2m) under s 408C(1)(b) of the Queensland Criminal Code 1899.

[8]    Sabrina Nutarelli (Ms Nutarelli), the second plaintiff, is Mr Mailley’s de facto partner. She pleaded guilty in Queensland to her part in the fraudulent dealings and was convicted and sentenced to three years’ imprisonment. Her sentence was suspended after she had been in prison for six months.3

[9]    On 2 July 2008, Mr Mailley was arrested in New Zealand. That same day, the Police applied to the District Court under s 45 of the Extradition Act 1999 to determine Mr Mailley’s eligibility for surrender.

[10]   In August 2008, Mr Shaw was first engaged by Nigel Cooke (Mr Cooke), solicitor, to represent Mr Mailley in place of Mr Hart. Mr Mailley says that he agreed to Mr Shaw replacing Mr Hart because of excessive overcharging by Mr Hart.      Mr Mailley complained to the NZLS about excessive charging by Mr Hart and that complaint was upheld by the Standards Committee.4

[11]   On 27 August 2008, Mr Shaw issued an invoice to Mr Hart for representing Mr Mailley in respect of the extradition proceedings in the District Court in the total sum of $28,125 (including GST). An initial payment of $20,000 plus GST was payable immediately and then a further $5,000 plus GST was payable within seven days of the conclusion of the extradition hearing. This is the first of Mr Shaw’s invoices at issue in these proceedings.5

[12]   On 29 August 2008, the sum of $22,500 of that first invoice was paid to     Mr Shaw (by either Mr Hart or Mr Cooke).

[13]   On 27 November  2008, Mr Shaw met with Ms Nutarelli and a friend of     Mr Mailley’s, Mr Davison, to discuss Mr Shaw’s representation of Mr Mailley. The

3      Mailley v District Court at North Shore, above n 1, at [5].

4      Mr Hart was subsequently found guilty of professional misconduct by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal and struck off the roll of barristers and solicitors; see Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103.

5      See the Affidavit of Mr Mailley, dated 8th January 2019 at [4] – “the first invoice Mr Shaw issued for work purportedly having been done was to Mr Hart dated 27th August 2008 for $28,125.00.”

plaintiffs allege that at that meeting, Mr Shaw agreed to cap his fees for all legal services in relation to the extradition and representation of Mr Mailley at $150,000.

[14]   On 29 August 2008, Mr Hart issued a statement of account to Mr Cooke in the name of Mr Mailley. The statement of account referred to “Disbursements – Antony Shaw” paid to Mr Shaw in the sum of $25,000.

[15]   On 4 December 2008, Ms Nutarelli deposited two payments of $75,000 into the Marshall Bird & Curtis, solicitor’s trust account. Ms Curtis was the solicitor instructing Mr Shaw.

[16]   On 12 December 2008, Mr Shaw issued a second invoice for services in relation to representing Mr Mailley in the total sum of $104,452.75. The invoice referred to professional services  rendered  during  the  period  of  6  November  –  12 December 2008 at the “agreed rate of $800 per hour, plus GST, plus disbursements”. The invoice consisted of four pages of narration detailing the work performed by Mr Shaw. It included fees in excess of $15,000 for travel at the rate of

$800 per hour. That invoice was paid on 17 December 2008, by funds held in the Marshall Bird & Curtis trust account.

[17]   On 17 December 2008, Mr Mailley was released from custody after Mr Shaw and Tony Ellis (Mr Ellis) successfully sought a writ of habeas corpus on his behalf. Mr Mailley remained on bail from then until his extradition to Queensland in 2016.

[18]   On 1 January 2009, Mr Mailley and Mr Shaw met at the Rutherford Hotel in Nelson.

[19]   On 21 January 2009, Mr Shaw issued a further tax invoice (the third at issue) to Marshall, Bird & Curtis for legal services performed for Mr Mailley in the sum of

$53,615.45. The invoice related to professional services rendered during the period 13 December 2008 – 21 January 2009 “at the agreed rate of $800 per hour (13 – 31 December 2008) and $1,000 per hour (1-21 January 2009, plus GST, plus disbursements as itemised”. The invoice included a six-hour meeting at the Rutherford Hotel on 1 January 2009.

[20]   In late January 2009, Mr Grant Illingworth QC was engaged as counsel to represent Mr Mailley, replacing Mr Shaw.

[21]   On 10 March 2009, Mr Shaw emailed Mr Mailley agreeing to reduce his invoice of 21 January 2009 by $6,750 (i.e. $6,000 plus GST), being the time incurred for their meeting at the  Rutherford  Hotel (i.e.  a  new  total  sum of $46,865.45).  Mr Mailley contends that those six hours (i.e. $6,000 at $1,000 per hour) were spent driving around Nelson.

[22]   In late May 2009, Mr Mailley re-engaged Mr Shaw to represent him in relation to the extradition proceedings.

[23]   In late May/early June 2009, Mr Shaw says there was an agreement for a fixed fee for the then-upcoming extradition hearing, scheduled June 2009.6

[24]   On 2 June 2009, the extradition hearing commenced before Judge Hubble in the Auckland District Court. Mr Shaw represented Mr Mailley. The proceedings could not be completed and were adjourned to 31 August 2009.

[25]   On 21 August 2009, Mr Shaw issued a further invoice (a fixed fee invoice) to Mr Mailley in the sum of $20,000 plus GST (with disbursements, a total sum of

$22,960). This invoice (the fourth invoice) related to professional services rendered during the period “post 21 January 2009 – 24 June 2009”. It also referred to “all matters connected with Auckland District Law Society complaint against BJ Hart”.

[26]   A further invoice (the fifth invoice) was issued on the same day by Mr Shaw to Marshall, Bird & Curtis for legal services representing Mr Mailley in the total sum of $34,550 (incl GST) for professional services rendered during the period “post

24.6.09 to 1.9.09 plus GST, plus disbursements”.

[27]   On 27 August 2009, Mr Shaw and Mr Ellis filed an application with the North Shore District  Court,  Auckland  seeking  leave  to  withdraw  from  representing  Mr Mailley. The application referred to Graeme Minchin (Mr Minchin) having been appointed counsel by Mr Mailley.

6 Third affidavit of Mr Shaw dated 29 September 2020 at [15].

[28]   On 31 August 2009, at the continued extradition hearing before Judge Hubble, Mr Shaw and Mr Ellis were granted leave to withdraw as counsel representing      Mr Mailley. Mr Minchin represented Mr Mailley for the remainder of the hearing.

[29]   On 11 September 2009, Judge Hubble issued his reserved decision determining Mr Mailley was eligible for surrender to Queensland.7

[30]   From 2010 – 2013, Mr Mailley made complaints to the NZLS about the conduct and fees of Mr Shaw. He also laid a complaint against Mr Ellis (the original second defendant in these proceedings). Mr Mailley made three complaints in total against Mr Shaw: cases 2399, 5474 and 7302. The Standards Committee subsequently opened its own motion investigation into the conduct of Mr Shaw. In total, five Standards Committee determinations (four relating to Mr Shaw) resulted from these complaints and investigation.

[31]   In its first determination, dated 15 July 2010, the Standards Committee decided to take no action on Mr Mailley’s complaint because the parties had resolved the issues between them.

[32]   Mr Mailley’s complaint was described by the Standards Committee in its first determination as follows:8

Mr Mailley complained that he asked Mr Hart to act for him to oppose an application for extradition against him. Mr Hart engaged Mr Shaw to assist and Mr Mailley paid him $20,000 for his assistance. Mr Tony Ellis was engaged to bring a habeas corpus application and Mr Shaw then presented two further accounts, the first for $104,453.72 and the second one for $53,615.45. He said he had also paid two accounts for $25,000 and $20,000 to Marshall Bird Curtis.

His complaint was that the $25,000 Mr Shaw received, via Mr Hart, was a generous amount for what he did and Mr Ellis did all the work in relation to the habeas corpus application.

His complaints were of gross overcharging and improper conduct in that he said once he received the second account he thought it was exorbitant and sacked Mr Shaw who then turned up at the extradition hearing and told the Judge that he had not been paid. He thought this was putting him in a bad light in front of the Judge, especially considering the charges he faced in Australia were for fraud.

7      Police v Mailley DC North Shore CRI-2000-063-544086, 11 September 2009 at [58].

8      Notice of Determination by Wellington Standards Committee 1 of Complaint 10 2399 from Mr M Mailley about Mr A Shaw, dated 15 July 2010.

[33] In its second determination, dated 20 November 2012, the Standards Committee concluded that Mr Mailley’s complaint was a “resurrection” of the previous fees complaint. The Committee concluded Mr Shaw had not breached any professional obligations nor acted improperly. The Committee also referred to reg 29 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008. That regulation provides that a Standards Committee must not deal with a complaint if the bill of costs were rendered more than two years prior to the date of the complaint, unless there is evidence of “special circumstances” to justify otherwise. The Committee held there was no evidence of any special circumstances in relation to Mr Mailley.9

[34]   The Standards Committee in its second determination described Mr Mailley’s complaint as follows:10

Mr Mailley said that he engaged Mr Minchin for his extradition case in the District Court and Mr Illingworth QC for his appeal, but then began to run out of funds. As a result, he took up Mr Shaw’s offer to undertake the legal work and paid him a $150,000.00 retainer ($27,000.00 of which was paid to Mr Ellis). After he lodged his earlier complaint with the Law Society, the parties agreed between themselves that Mr Shaw would undertake further legal work and so he withdrew his complaint. However, Mr Shaw insisted that Mr Mailley sack Mr Minchin before undertaking the work and also said that he was not prepared to work with Mr Illingworth QC. Mr Mailley did not agree to the conditions imposed by Mr Shaw and so the agreement was not fulfilled

…

Mr Mailley now complains that Mr Shaw breached his obligations under their agreement and charged him a further $80,000.00, including $6,000.00 for what he believed was a social visit, which fees he alleged were excessive. He said that after he sacked Mr Shaw, Mr Shaw told the Judge he was withdrawing from Mr Mailley’s case because he had not been paid.

[35]   On 24 December 2012, an application was made by Martin Lyttelton (Mr Lyttelton) on behalf of Mr Mailley to the Legal Complaints Review Officer (LCRO) for a review of the Standards Committee’s second determination (case number 337/2012).

9      Notice of Decision by Wellington Standards Committee 1, dated 20 November 2012 at [2] and [3].

10 At [14].

[36]   On 13 January 2013, Mr Lyttelton, on behalf of Mr Mailley, wrote to Mr Shaw setting out in detail the substance of the complaints by Mr Mailley in relation to     Mr Shaw’s fees and conduct.

[37]   In its third determination, dated 10 September 2013, the Standards Committee referred to Mr Mailley’s complaints as follows:11

Mr Mailley says that he has provided fresh evidence which justifies the reopening of his previous complaints. Mr Mailley also makes a number of further complaints in relation to Mr Shaw’s conduct, which include the following matters:

·Mr Shaw conspired with Mr Hart in order to fraudulently obtain

$22,500 from Mr Mailley;

·Mr Shaw misled the Law Society in its response to Mr Mailley’s previous complaint;

·Mr Shaw’s fees were excessive and in breach of an agreement to cap his fees at $150,000;

·Mr Shaw breached a number of the rules and obligations which are [i]mposed by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules).

[38]   In that third determination, the Standards Committee concluded Mr Shaw had not breached any of his professional obligations under the rules and there was no sufficient evidence to justify the re-opening of Mr Mailley’s previous complaints.  Mr Mailley had provided fresh evidence in support of his allegation of breach of the fee agreement  and  allegation  of  excessive  fees,  but  the  Committee  held  that  Mr Mailley had not provided sufficient evidence to substantiate those allegations or to justify any further inquiry into them.

[39]   On 14 October 2013, an application for review of the Standards Committee decision of 10 September 2013 was filed with the LCRO on Mr Mailley’s behalf by Mr Lyttelton (case number 304/2013).

[40]   In its fourth determination, dated 3 December 2013, the Standards Committee decided to take no further action in relation to its own motion investigation of Mr Shaw

11 Notice of Decision by Wellington Standards Committee 1, dated 10 September 2013 at [7].

pursuant to s 138(2) of the LCA 2006. The Committee described the background to that investigation as follows:12

In January 2013, Mr Ellis contacted the Law Society and confirmed that Mr Mailley had laid a complaint with the Police against himself, Mr Hart and Mr Shaw in relation to an allegedly fraudulent fee arrangement. In his police complaint, Mr Mailley alleged that Mr Hart had rendered an invoice which was fraudulent as it did not relate to services that were provided by Mr Hart and was actually used to repay an unrelated debt Mr Hart owed to Mr Shaw.

The Standards Committee subsequently opened an own motion investigation into the conduct of Mr Shaw.

In March of 2013, Mr Mailley lodged a complaint in relation to the conduct of Mr Shaw, reference 7302. The Standards Committee has now considered that complaint and decided to take no further action in relation to it.

[41]In June 2015, the plaintiffs filed and served these proceedings.

[42]   On 1 December 2015, Associate Judge Doogue made timetable directions and determined that Mr Lyttelton was not able to act as an advocate for the plaintiffs in these proceedings.

[43]   On 18 March 2016, the LCRO directed that the two applications for review be stayed until these proceedings had been determined.13

[44]   In 2016, Mr Mailley was extradited to Australia following the Court of Appeal decision Mailley v District Court at North Shore14 upholding the decision of District Court Judge Sinclair to make an order for surrender. Mr Mailley subsequently pleaded guilty to the Queensland fraud charges and was sentenced to a term of imprisonment.

[45]   On 19 May 2016, Associate Judge Doogue issued a minute recording the plaintiffs’ failure to attend case management events and the “inactivity of the plaintiffs and the uncertainty over Mr Mailley’s continued residency in New Zealand”.15 His Honour directed that these proceedings were to be stayed until further order of the Court. That meant that the then-extant unopposed applications by the defendants for

12     Notice of Decision by Wellington Standards Committee 1, dated 3 December 2013 at [3]-[5].

13     See Mailley v Shaw LCRO 337/2012 and 304/2013, dated 31 August 2016 [Decision as to Jurisdiction] at [9].

14     Mailley v District Court at North Shore, above n 1; see also the decision of Supreme Court in

Mailley v District Court at North Shore [2016] NZSC 73, where leave to appeal was refused.

15     Mailley & Or v Shaw & Or HC Auckland CIV-2015-404-001185, 19 May 2016 (Minute of Associate Judge Doogue).

security for costs and strike out were not to be brought on for hearing at that time. His Honour directed that if the plaintiffs determined at some future time that they wished to resurrect the proceedings, then the Court would obviously consider the position.

[46]   On 31 August 2016, the LCRO determined he had no jurisdiction to consider the two applications for review of the Standards Committee determinations and declined to do so. The LCRO tendered his apologies to the parties for not having considered and decided that issue sooner.

[47]   On 24 January 2018, Mr Mailley filed and served judicial review proceedings challenging the determination of the LCRO that he had no jurisdiction to entertain the review application (CIV-2018-404-134).

[48]   On 6 November 2018, Associate Judge Bell issued a minute rejecting a claim by the defendants that Associate Judge Doogue had made an order permanently staying the proceedings. Associate Judge Bell made directions for a defended hearing on the applications to strike out. He also granted leave to the plaintiff to discontinue the proceedings against Mr Ellis, the second defendant, with no order as to costs.16

[49]   On 16 November 2018, the plaintiffs filed a document entitled “Second Amended Statement of Claim”.

[50]   In a judgment dated 18 December 2018, Clark J in Mailley v Legal Complaints Review Officer,17 ordered that the judicial review proceedings of the LCRO be stayed until final disposition of these proceedings (that is, the proceedings the subject of this judgment). Her Honour also made an order de-barring Mr Minchin from acting as counsel in the judicial review proceedings. Her Honour recorded that Mr Shaw, the second respondent in the judicial review proceedings before her, had asked the Court to stay those review proceedings on the ground that the judicial review proceedings related to the same complaints as at issue in these proceedings. Mr Shaw contended that these proceedings have not been prosecuted. Her Honour concluded as follows:

16 Mailley & Or v Shaw & Or HC Auckland CIV-2015-404-1185, 6 November 2018 (Minute of Associate Judge Bell).

17 Mailley v Legal Complaints Review Officer [2018] NZHC 3363, [2019] NZAR 347. See also Mailley v Legal Complaints Review Officer [2019] NZHC 1608, where Clark J declined leave to appeal to the Court of Appeal.

[13]      The applications to the LCRO for review of the Standards Committees’ decisions are in respect of Case Nos. 337/2012 and 304/2014. In other words, what Mr Mailley seeks in CIV-2018-134 [the judicial review proceedings] is what he seeks, albeit differently articulated, from the High Court in CIV-2015-1185 [i.e. these proceedings]. The application for judicial review of the LCRO in substance and effect, is to require the LCRO to investigate the very matters which Mr Mailley has put before the High Court in CIV-2015-1185. Yet Mr Mailley appears to have walked away from CIV- 2015-1185 without taking steps towards its resolution or discontinuing it. If CIV-2015-1185 is determined in Mr Mailley’s favour, he would achieve what he seeks by that proceeding namely, a review of counsels’ conduct and costs charges. If Mr Mailley is unsuccessful there is no utility in this Court ordering the LCRO to review the Standards Committees’ determinations of Mr Mailley’s complaint. In any event there is a real question over the LCRO’s jurisdiction to entertain Mr Mailley’s application for review …

[14]      I am satisfied that the manner by which Mr Mailley seeks to engage the judicial processes relates in such unfairness to Mr Shaw that CIV-2018- 134 (the judicial review proceedings) should be stayed as an abuse of process. Mr Geiringer [counsel for Mr Shaw] makes a fair point. Having effectively “defended” himself before the Standards Committees, and engaged in CIV- 2015-1185 [i.e. these proceedings] by filing a statement of defence, an interlocutory application, successive memoranda of counsel, and attended case management conferences, Mr Shaw should not now have to give answer to the complaints before the High Court arising out of the application for judicial review when Mr Mailley has neither discontinued nor sought to resolve his 2015 proceedings.

[51]   On 13 August 2020, Lang J made timetable directions for the plaintiffs to file amended pleadings and for the determination of these strike out applications. His Honour held that the plaintiffs were on notice that, “this is their final chance to re- plead their claim”.18

[52]   On 26 August 2020, the plaintiffs filed a document entitled “Third Amended Statement of Claim”. This document is now the subject of these strike out applications.

The pleadings

[53]   The third amended statement of claim dated 26 August 2020 (the 3ASOC), contains 13 causes of action. They are as follows:

(a)Four causes of action by Mr Mailley against Mr Shaw. This includes breach of fiduciary duty, breach of contract, deceit and negligence. In

18     Mailley & Or v Shaw & Or HC Auckland CIV-2015-404-1185, 13 August 2020 (Minute of Lang J).

relation to the claim for breach of fiduciary duty and deceit, Mr Mailley seeks general damages in the sum of $150,000, punitive damages in the sum of $250,000 and damages for emotional harm in the sum of

$50,000. In relation to the claim of breach of contract and negligence, Mr Mailley seeks general damages of $150,000 and damages for emotional harm of $50,000;

(b)Three causes of action by Mr Mailley against the NZLS. This includes claims in negligence, breach of statutory duty and “public misfeasance”. In each case Mr Mailley seeks general damages of

$150,000, punitive damages of $250,000 and damages for emotional harm in the sum of $50,000;

(c)Three causes of action by Ms Nutarelli against Mr Shaw. This includes breach of contract, negligence and deceit. In each case Ms Nutarelli seeks general damages of $150,000 and damages for emotional harm of $50,000. In relation to the deceit cause of action she also seeks punitive damages of $250,000;

(d)Three causes of action by Ms Nutarelli against the NZLS. This includes a claim of negligence, breach of statutory duty and “public misfeasance”. In each case Ms Nutarelli claims general damages of

$150,000, punitive damages of $250,000 and damages for emotional harm in the sum of $50,000.

Relevant legal principles

[54]Rule 15.1 of the High Court Rules 2016 reads:

15.1     Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it –

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)This rule does not affect the court's inherent jurisdiction.

[55]The general principles applicable to the exercise of the Court’s powers under r

15.1  are summarised in the Court of Appeal’s decision in Attorney-General v Prince,19

as endorsed by the Supreme Court in Couch v Attorney-General.20 These include:

(a)pleaded facts, whether or not admitted, assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation;

(b)the cause of action or defence must be clearly untenable;

(c)the jurisdiction is to be exercised sparingly and only in clear cases;

(d)the jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument; and

(e)if a defect in the pleading can be cured by amendment, the claim should not be struck out.

[56]   In Attorney-General v McVeagh,21 it was held that the Court is entitled to receive evidence on strike out applications and will do so in a proper case:

The Court is entitled to receive affidavit evidence on a striking out application, and will do so in a proper case. It will not attempt to resolve genuinely disputed issues of fact and therefore will generally limit evidence to that which is undisputed. Normally it will not consider evidence inconsistent with the pleading, for a strikingout application is dealt with on the footing that the pleaded facts can be proved; … But there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.

19     Attorney-General v Prince and & Gardner [1998] 1 NZLR 262 (CA).

20     Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

21     Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.

[57]   A “frivolous” pleading is one which “trifles with the court’s process”.22 It is a pleading that lacks the seriousness required for a court to determine a matter.23

[58]   A vexatious pleading contains “an element of impropriety”.24 It may also be vexatious to bring proceedings in respect of the same matter in different courts, or to use the court’s process to further harass.

Analysis and decision

[59]   These proceedings have a somewhat tortuous history. They were originally filed in 2015 and relate to events from more than 10 years ago. The pleadings the subject of the strike out application have been amended on many occasions, following repeated directions and suggestions from the Court that they required amendment. The current statement of claim does not claim by way of relief any out of pocket losses. Rather, it seeks general and punitive damages and “damages for emotional harm”. That is somewhat surprising given Mr Mailley’s core complaints that Mr Shaw acted in a fraudulent manner in relation to the first invoice and that the subsequent invoices constituted improper overcharging. The plaintiffs are self-represented and have been so for much of the litigation. This is particularly regrettable in a complex case such as this, where the plaintiffs make serious allegations of fraud and misfeasance in public office. The lack of access to competent legal advice and representation has clearly given rise to some disadvantage for them.

[60]   Ironically, having had the 2018 judicial review proceedings stayed on the ground that they relate to the same complaints at issue in these proceedings, the plaintiffs now have to contend with an application from Mr Shaw that these proceedings are vexatious, frivolous and an abuse of process. As part of this argument, Mr Shaw refers to the need for the plaintiffs to first pursue statutory and judicial review rights under the LCA 2006. The plaintiffs of course say that they tried to pursue those rights but Mr Shaw blocked them and obtained the stay ordered by Clark J.

22     Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].

23     Burchell v Auckland District Court [2012] NZHC 3413, [2013] NZAR 219 at [16].

24     Commissioner of Inland Revenue v Chesterfields Preschools, above n 22, at [89].

Application by Mr Shaw to strike out

[61]   Mr Long, on behalf of Mr Shaw, was critical of both the pleadings and the lack of clarity as to the plaintiffs’ core complaints. I agree that the state of the pleadings is a key issue. However, in viewing all of the documentary evidence before the Court, it is reasonably clear what the plaintiffs’ principal concerns and contentions are. The critical issue is not so much what the plaintiffs’ core complaints are but, rather, whether these complaints now give rise to tenable causes of action.

[62]   In relation to the first invoice issued to Mr Hart in the sum of $28,125, the plaintiffs, who associate Mr Shaw with Mr Hart,25 allege fraudulent and improper conduct by Mr Shaw. It is claimed that funds held for Mr Mailley were improperly applied to Mr Shaw’s account which included (improperly) an element for future work. The plaintiffs rely on email correspondence from Mr Ellis in support of their claim of fraud.26

[63]   The plaintiffs also say that they agreed with Mr Shaw to a fee cap of $150,000 in total for all work performed by Mr Shaw in relation to the extradition, including any appeals. They allege that Mr Shaw breached the cap, that there was significant duplication of costs in relation to the habeas corpus hearing and that the invoices rendered were excessive and disproportionate to the services provided.27 In particular, the plaintiffs appear to be aggrieved that Mr Ellis (engaged as lead counsel in the habeas corpus application) charged $300 per hour whereas Mr Shaw (who the plaintiffs say acted as second counsel) charged between $800 and $1,000 per hour. The plaintiffs are also critical of Mr Shaw’s conduct at the extradition hearing before Judge Hubble on 31 August 2009 and allege Mr Shaw made disparaging and prejudicial comments about the plaintiffs in open court.

[64]   The plaintiffs say that Mr Shaw exploited their vulnerability, knowing that they had been ‘burned’ (my words) by Mr Hart, in circumstances where Mr Mailley

25 In their submissions of 30 September 2020, the plaintiffs refer to a “stratagem” between Mr Hart and Mr Shaw. They submit that “the modus operandi of Hart and the first defendant [Mr Shaw] was to clean out any monies held in instructing solicitors’ trust accounts as fast as they could if a pathway lay open to them.”

26    See the email from Mr Ellis to  Mr Jonathan  Eaton QC dated 2  July 2009 and the email from    Mr Ellis to Mr Shaw dated 25 September 2009.

27 In a third affidavit dated 23 September 2020, Mr Mailley claims that Mr Shaw made an offer in 2010 to undertake as much as $50,000 of free legal work to compensate the plaintiffs for his overcharging.

suffered from mental health issues. It is claimed that Mr Shaw abandoned Mr Mailley at a critical stage in the extradition process in circumstances where it was very difficult for Mr Minchin (as required) to continue with the extradition hearing.

[65]   The plaintiffs further allege Mr Shaw effectively coerced or improperly pressured Mr Mailley into approving the second invoice in the sum of $104,452.75. It is also claimed that the $6,000 charged initially for attendances at the Rutherford Hotel in Nelson was highly improper when in fact (so it is alleged) it related to a guided tour that Mr Shaw took Mr Mailley on around Nelson city.

[66]   It is not difficult to understand why the plaintiffs are aggrieved at the second invoice of $104,452.75. The hourly charge-out rate of $800 plus GST was, by the standards of the day, substantial. The total sum represented just over one month’s work. In particular, the amount charged for travel time is, on its face, excessive.28 Having said that, these complaints have all be investigated by the Standards Committee and rejected.

[67]   While Mr Mailley agreed to pay that second invoice and withdrew or settled his complaint to the Standards Committee, it is important to bear in mind the observations of the Full Court in Hart v Auckland Standards Committee 1 of the New Zealand Law Society.29 In that case, the Court observed that it is inappropriate and exploitive to charge a client fees in excess of the value of the work performed simply because the client considers the work indispensable and is in a position to pay those fees.

[68]   Against that background, I turn to address the critical issue of whether the multiple defects with the proceedings, when considered in combination and overall, have reached the r 15.1 threshold of frivolous, vexatious and/or an abuse of the process of the Court.

[69]I begin by addressing the critical defects. They can be summarised as follows:

(a)Mr Mailley does not plead that he paid three out of the five disputed invoices (i.e. the third, fourth and fifth invoices). Furthermore, there is

28     See Hart v Auckland Standards Committee 1 of the New Zealand Law Society, above n 4, at [148].

29 At [180].

no probative evidence that any of those three invoices were paid and likewise no evidential foundation to support the claim that the alleged fee cap of $150,000 was breached.

(b)No actual loss is pleaded despite causes of action in both negligence and breach of contract.

(c)Some of the critical allegations of dishonesty are not particularised, have been investigated and rejected by the NZLS and again are unsupported by an adequate evidential foundation;

(d)Each of the five invoices at issue were rendered by Mr Shaw more than six years before these proceedings were filed. Likewise, the first and second invoices (the only invoices that were paid) were paid on dates more than six years prior to the filing of the proceedings. This raises limitation issues;

(e)The amount of damages claimed is excessive (i.e. general damages of

$150,000 and punitive damages of $250,000), particularly when viewed in the context of the significant success Mr Mailley had in deferring his extradition and obtaining bail, during the period 2008 – 2016. The quantum is also to be assessed in circumstances where no actual out-of-pocket loss is claimed.

[70]I now turn to address the individual causes of action and the defects of each.

Breach of fiduciary duty

[71]   Mr Mailley alleges30 Mr Shaw breached his fiduciary duties by failing to inform Mr Mailley and his instructing solicitors (Marshall Bird & Curtis) of the alleged $150,000 fee cap agreement with Ms Nutarelli. For the purposes of this strike out application, I assume that those allegations are true.

[72]   However, it is difficult to see how Mr Mailley could be entitled to any damages for the alleged breach, given he never paid the billed sums in excess of the alleged

30     Third amended statement of claim, dated 26 August 2020 at [44]–[52].

$150,000 fee cap. Furthermore, lawyers engaged after Mr Shaw (his retainer was for a limited 12-month period) could not and were not bound by the agreement as to fees.

[73]   At paragraph [46] of the 3ASOC, Mr Mailley alleges Mr Shaw breached a fiduciary duty because he “failed to act to the standard of competence and professionalism expected of a senior barrister”. That allegation must be struck out because, in my view, it is not a fiduciary duty.31

[74]   Some of the other claimed breaches of fiduciary duties are likewise not fiduciary duties. It is not a breach of fiduciary duty for Mr Shaw to have represented that he was concerned about Mr Mailley’s physical and mental state of health.32

[75]   At paragraph [47] of the 3ASOC, Mr Mailley alleges Mr Shaw “overcharged for his work and charged for work he did not do.” However, even if those allegations are assumed to be correct, the fundamental problem is that Mr Mailley only ever paid two out of the five invoices.33 The two that were paid were the subject of the various determinations of the Standards Committee, a matter I address below.

[76]   The third invoice dated 21 January 2009 (the invoice pleaded at paragraph [51] of the 3ASOC) was retracted and re-issued by Mr Shaw, with the Nelson meeting charge removed, after Mr Mailley disputed it. Again, that invoice was not paid and it is hard to see how it can give rise to a credible allegation of breach of fiduciary duty.

[77]   The conduct in court allegations at paragraph [52] of the 3ASOC suggest Mr Shaw acted improperly when he withdrew as counsel acting for Mr Mailley. The application for withdrawal was granted by Judge Hubble on the basis that Mr Shaw’s invoices had  not  been  paid.  After  Mr  Shaw’s  services  were  dispensed  with,  Mr Mailley had significant success in the exercise of his appeal rights. In the circumstances, it is difficult to accept that Mr Mailley was in any material way prejudiced by the alleged improper conduct.

31 Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433 at [15] per Elias CJ: “Not every breach of duty by a fiduciary is a breach of a fiduciary duty. The distinguishing obligation of a fiduciary is the obligation of loyalty.”

32 Third amended statement of claim dated 26 August 2020 at [50].

33 In contrast to the first and second invoices for which there are trust account records confirming payment of the funds, there is no documentary evidence of any kind establishing that Mr Mailley paid either the third, fourth or fifth invoice. Mr Shaw was of course subsequently granted leave to withdraw by Judge Hubble in the District Court for non-payment of fees.

[78]   The allegation at paragraph [49] of the 3ASOC that Mr Shaw, in violation of Mr Mailley’s interests, “took it upon himself to isolate Mr Mailley in a central Auckland hotel room for two nights near the offices of Marshall Bird and Curtis to facilitate payment of his second invoice”, is also unsupported by any particulars. The allegation is potentially serious but it remains unclear whether Mr Mailley alleges that Mr Shaw unlawfully detained him and just how Mr Shaw exerted improper pressure to facilitate payment of the invoice.

Breach of contract

[79]There appear to be two principal complaints. It is alleged:

(a)the billing initially done for the work in August 2008 (through Mr Hart) was for work done for others; and

(b)at an informal meeting with Mr Davison and Ms Nutarelli in November 2008 (when Mr Mailley was on remand), a fee cap of $150,000 all up, for all billing to completion and all matters, involving all parties, was agreed with Mr Shaw.

[80]   The above allegation at paragraph [79] is an allegation of fraud. It was investigated and rejected by the Standards Committee which had opened its own motion investigation into the conduct of Mr Shaw. Indeed, both the third and fourth determination of the Standards Committees deal expressly with allegations of fraud against Mr Shaw by Mr Mailley.

[81]   A fundamental problem for Mr Mailley in relation to the alleged breach of the fee cap is that the primary evidence (the written document signed by Mr Mailley being the retainer between Marshall Bird & Curtis and Mr Mailley) records the words “fee agreed” as being replaced with “retainer provided”. Again, there is no probative evidence that if there was a fee cap, it was breached in any way. Having been put on notice by Mr Shaw that he disputes the payment of the third, fourth and fifth invoices, no documentary evidence to the contrary has been provided by the plaintiffs.34

34     See Mailley & Or v Shaw & Or HC Auckland CIV-2015-404-1185, 6 November 2018 (Minute of Associate Judge Bell) at [12] and [13].

[82]   As I have been emphasising, there is no pleaded claim that the third, fourth and fifth invoices were paid, nor is there a claim for recovery of excessive fees that were paid. At the hearing the plaintiffs contended that the third, fourth and fifth invoices had in fact been paid, despite the lack of a specific pleading. I find that this is one of the contentions that Mr Long properly characterised as difficult to comprehend. The plaintiffs’ own evidence in the form of the transcript of the 31 August 2009 hearing before Judge Hubble,35 refers specifically to Mr Shaw raising the issue of unpaid invoices. Given the background of the relationship between Mr Shaw and the plaintiffs at that time, it seems implausible that those three invoices were ever subsequently paid.36 Non-payment of the invoices would of course be entirely consistent with the allegation that there was a $150,000 fee cap. I note also Mr Mailley says that, prior to engaging Mr Shaw, he had already paid substantial fees to Mr Hart.

[83]   In relation to the fee cap, I note that three lawyers provided evidence to the Standards Committee that they were unaware of the existence of a fee capping arrangement. That includes Mr  Ellis,  Ms  Curtis  (the  instructing  solicitor)  and  Mr Shaw.37

[84]   The claim of breach of contract refers again to the three invoices at issue which were never paid. It is clear, as Mr Long submitted, that if there is no entitlement to an invoice (as alleged) and an invoice is rendered but never paid, then no loss can be suffered from the breach. In such circumstances, it is difficult to see even a nominal sum being awarded by way of general damages for the mere receipt of an invoice, let alone the large sums claimed here.

Dishonesty

[85]   Both Mr Mailley  and  Ms  Nutarelli  make  allegations  of  deceit  against  Mr Shaw.38

35 And contrary to Mr Minchin’s assertion at paragraph [14] of his affidavit dated 16 January 2019.

36 In his affidavit of 8 January 2019 at paragraph [12] Mr Mailley states: “After receiving these invoices the invoices described as the fourth and fifth invoices in this judgment] which included hourly rates of between $800 and $1,000 and significant travel expenses, I raised with Mr Graeme Minchin the possible over-billing by Mr Shaw. Mr Minchin advised me the charges for the work done appeared to be excessive. I then withdrew instructions from Mr Shaw.”

37 Notice of Decision by Wellington Standards Committee 1 Standards Committee 1 decision in relation to Tony Ellis (complaint 7319) dated 10 September 2013, at [32] and [28].

38 See the third amended statement of claim, paragraphs [66]-[75] and paragraphs [111]–[113].

[86]Mr Mailley alleges Mr Shaw was deceitful in the following ways:

(a)Not informing Mr Mailley of the existence of the fee agreement;

(b)Informing Mr Mailley that all the extradition work could be done within the fee of $150,000;

(c)Not informing Mr Mailley’s instructing solicitors, Marshall Bird & Curtis, of the $150,000 fee cap agreement;

(d)Not keeping Mr Mailley apprised of the “spiralling costs” and not informing him at the earliest opportunity that the final costs of the extradition would exceed $150,000;

(e)Engaging in deceitful conduct against Mr Mailley – “a vulnerable, ill man who had attempted suicide”. The allegation of billing for the Nelson visit ($6,000) is repeated;

(f)Isolating Mr Mailley physically and socially with numerous lies such as that his partner, Ms Nutarelli, was having an affair;

(g)Being deceitful in his representations before Judge Hubble at the extradition hearing on 31 August 2009; and

(h)As a party to deceit with Mr Hart in respect of the first invoice for

$28,125.

[87]   It is clear that allegations of fraud and deceit must be pleaded with special care and particularity. General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud.39 A claim of fraud must not only be fully and precisely pleaded and particularised but must also be of sufficient cogency that it should go to trial.40

39     Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15].

40     Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [33].

[88]   It has also been held that these principles apply with equal rigour to those who represent themselves – such individuals must satisfy the same exacting standard in preparing their own pleadings.41

[89]   I accept that some attempt has been made by Mr Mailley to provide particulars of the deceit/fraud alleged. However, in my view, there is a clearly insufficient cogency to the allegations and some of the critical allegations lack adequate particulars.

[90]   The plaintiffs have placed significant reliance on correspondence  sent  by  Mr Ellis. This has been a feature of Mr Mailley’s complaints to the NZLS from the outset. However, in its third determination of 10 September 2013 relating to Mr Ellis, the Standards Committee specifically refers to evidence from Mr Ellis that he never had any suspicion or belief that Mr Shaw had engaged in fraud in relation to his dealings with Mr Mailley.42 At paragraph [11] of its Ellis determination, the Committee expressly refers to the letter from Mr Ellis to Mr Eaton QC (who was instructed to review Mr Hart’s fees in 2009). The plaintiffs placed particular significance on this document. Furthermore, in its second and third determinations, the Standards Committee concluded that Mr Shaw had not breached any professional obligations nor acted improperly in relation to Mr Mailley.

[91]   The  Committee  was  dealing  in  substance  with  the  same  matters  that  Mr Mailley complains about in these proceedings. While those determinations are not a legal bar to the same issues being raised in these proceedings, they are part of the background to assessing whether the claims have been properly and precisely pleaded and are supported by sufficiently cogent evidence.

[92]   The allegation in paragraph [70] of the 3ASOC43 is again misguided. It is not disputed that that part of the fee was waived and, in any event, the whole invoice remains unpaid.

41     Schmidt v Pepper New Zealand (Custodians) Ltd, above n 40, at [16].

42     At [16] of that decision the Standards Committee noted Mr Ellis had stated he had no belief Mr Shaw engaged in fraud in relation to the $22,500 fee.

43     Referring to the $6,000 fee for the meeting in Nelson.

[93]   The allegation at paragraph [69] of the 3ASOC44 is again difficult to understand given that, in fact, the cap was never exceeded. Even if I accepted there is an arguable allegation of deceit, the deceit appears to have had no real consequence.

[94]   The allegations at paragraph [73]45 of the 3ASOC are not supported by any particulars. Again, the Court’s refusal of an adjournment at the request of Mr Minchin does not ultimately appear to have prejudiced Mr Mailley. I accept that, based on a transcript in evidence regarding Mr Shaw’s submissions to Judge Hubble, it is arguable Mr Shaw’s comments were both intemperate and inappropriate. However, the allegation made is one of deceit/dishonesty. Those against whom such serious allegations are made (including Mr Shaw) are entitled to a precise and fully particularised pleading, which has not been provided.

Claims in negligence

[95]   The plaintiffs’ claims for negligence relate primarily to the alleged fee agreement, as well as to Mr Shaw’s competence as a barrister.

[96]Mr Mailley makes bald claims for general and exemplary damages totalling

$200,000, but has not pleaded any harm, damage or loss (compensatory damages) suffered as a result of any alleged negligence by Mr Shaw.

[97]   Those bald claims are not sufficient to found a claim in negligence. Negligence is not actionable per se; damage is a key element. “Damage” can either be physical or economic harm, or some identifiable psychiatric order or illness that is a result of a sudden and shocking event.46

[98]   Without a primary claim for compensatory damages founded on the elements of negligence (including damage), the claims for general and exemplary damages have no basis.47

44     That Mr Shaw was deceitful in not keeping Mr Mailley apprised of spiralling costs and that these would exceed the cap.

45     That Mr Shaw was deceitful in his representations before Judge Hubble.

46     van Soest v Residual Health Management Unit, [2000] 1 NZLR 179 (CA) at [26] and [65].

47 At [75].

Limitation issues

[99]   An issue of limitation arises in relation to the breach of contract and negligence causes of action. Section 4(1)(a) of the Limitation Act 1950 provides that actions founded on tort and contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.48

[100]   The plaintiffs’ original statement of claim is dated 2 June 2015. A number of the claims relating to the causes of action for alleged breach of contract and negligence relate to events in 2008 and early 2009 – that is, from more than six years prior to the filing date of 2 June 2015. This includes the allegation about the breach of the alleged fee cap, the allegation of billing for work done while engaged by Mr Hart49 and those allegations complaining about the conduct of the habeas corpus application (i.e. heard and determined on 17 December 2008).50

[101]   In relation to the negligence cause of action,51 the only allegation within the six-year limitation period is at paragraph [82] – relating to Mr Shaw’s appearance before Judge Hubble on 31 August 2009.

[102]   In Murray v Morrell & Co Ltd,52 the Court of Appeal held that a claim can be struck out on limitation grounds where the cause of action is so clearly statute barred that it ought properly to be regarded as frivolous, vexatious or an abuse of process. To avoid strike out, a plaintiff must produce something by way of pleadings, particulars or evidence, in order to give an “air of reality” to their claim that they are entitled to an extension of time.53

[103]   Mr Mailley seeks to avoid strike out on the ground that he was suffering under a disability at the time. Under s 24 of the Limitation Act 1950, if a claimant lacks capacity to bring proceedings because they are under a disability as at the date of accrual, then the cause of action is deemed not to have accrued at that date. It will

48     Although the Limitation Act 1950 has been repealed and replaced with the Limitation Act 2010, its provisions continue to apply to claims based on acts or omissions prior to 1 January 2011: see s 59 Limitation Act 2010 and Taylor v Roper [2020] NZCA 268 at [69].

49 See the Third amended statement of claim, at [55].

50     At paragraphs [58] – [61].

51     At paragraphs [76] – [82].

52     Murray v Morrell & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721.

53     At [33]–[34].

only accrue and time start to run once the incapacity ceases. In effect, the accrual date is postponed.54

[104]   In Taylor v Roper,55 the Court of Appeal recently explained the principles of  s 24 as follows:

(a)The incapacity must exist at the time the cause of action would otherwise have accrued;

(b)Even if the incapacity does exist at what would otherwise have been the date of accrual but is thereafter intermittent, the first occasion on which the disability ceases or ceases to have an incapacitating effect, the cause of action accrues and time runs as normal. In other words, the incapacity must persist and be continuous. Any cessation, no matter how brief, will cause time to start running;

(c)The claimant must prove the alleged unsoundness of mind resulted from a demonstrable and recognised mental illness, and that as a result of that illness, they did not have the capacity to bring proceedings;

(d)The claimant is not required to show general unsoundness of mind. That is, they are not required to show they are unable to manage their affairs generally; and

(e)On the other hand, the inability to face up to issuing proceedings is not enough to trigger s 24.

[105]   I find that there is very little probative evidence to discharge the burden that Mr Mailley carries. There is no “air of reality” to his claim that he was under any requisite disability capable of extending the limitation period. While he has given evidence of a psychiatric history of bi-polar affective disorder (BPAD), including from around the time of the events in the statement of claim, there is no evidence to suggest that this ever affected his capacity to bring proceedings. In fact, the multiple complaints made to the NZLS in the period 2010 – 2013 suggest he clearly did have

54     Taylor v Roper, above n 49, at [94].

55     At [95] and [97].

capacity. He was also legally represented by senior counsel in 2009, 2010 and 2014, as well and in relation to the extradition proceedings, and there is no suggestion he did not have capacity to provide competent instructions to counsel.56 The real reason for the delay in filing these proceedings may well have been the delays by the LCRO in determining the review of the Standards Committees’ decisions (which I acknowledge is regrettable), but that does not provide a basis for extending the limitation period.

[106]   I also note that Judge Sinclair, in her extradition judgment of June 2014,57 specifically addressed Mr Mailley’s mental health issues. Her Honour concluded, “the evidence is clear that Mr Mailley’s symptoms of BPAD and/or personality disorder are not so severe and grave that he is incapable of functioning or bereft of choice.”58 She found that the evidence did not suggest that Mr Mailley was wholly without volition and choice, nor was she persuaded that it was inevitable Mr Mailley would attempt to commit suicide or was a high risk of committing suicide if extradited to Australia.59

[107]   The consequence of my finding on this limitation issue is that very little of Mr Mailley’s key allegations in relation to the causes of action in breach of contract and negligence can succeed. In the main, the claims are statute barred. All that remains is the conduct of Mr Shaw on 31 August 2009, for which the claimants have pleaded no actual loss.

[108]   While I am not unsympathetic to the difficulties Mr Mailley’s mental health may have caused him, the limitation issue provides a formidable and insurmountable challenge for the plaintiffs.

[109] Finally, this outcome on the issue of limitation is supported by the policy of reg 29 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008. That regulation provides that a Standards Committee must not deal with a complaint relating to a bill of costs if the bill of costs was rendered more than two years prior to the date of the complaint, unless there are

56     Mailley v Police [2011] 3 NZLR 223 at [15]–[19]; Mailley v District Court at North Shore [2014] NZHC 2816, [2015] 2 NZLR 567.

57     Commonwealth of Australia v Mailley DC North Shore CRI-2008-044-001978, 20 June 2014. (Mr Mailley was represented by senior counsel in those proceedings).

58 At [60].

59     At [60] and [61].

special circumstances that would justify otherwise. Although reg 29 does not provide a legal bar to the bringing of these proceedings, it does, in policy terms, provide a clear recognition that there are real difficulties for judicial bodies investigating bills of costs a long time after the work was performed and the fee invoice rendered.

Conclusion on Mr Shaw’s application to strike out Mr Mailley’s claims

[110]   In considering the overall effect of the multiple defects I have identified, I find that the proceedings against Mr Shaw are incapable of success. The defects are not capable of being amended to disclose tenable causes of action. In any event, the plaintiffs have, in reality, had numerous opportunities to amend them.

[111]   Some critical aspects of the proceedings can properly be characterised as frivolous or vexatious (for example, suing in relation to unpaid invoices when it is not pleaded that they were paid and where there is no evidence of payment), whereas others are an abuse of process (for example, making deceit/fraud allegations in the absence of sufficiently cogent evidence).

[112]   I do not see the need to label each of the defects in terms of the particular categories in r 15.1. The important point is my overall conclusion that the proceedings cannot succeed (that is, none of the causes of action could be made out to provide a remedy of some kind). The very best that the plaintiffs might achieve is some criticism of Mr Shaw, but there is no reasonable prospect of any finding of liability. The high threshold in r 15.1 has been established.

[113]   Mr Mailley has in substance made the same allegations against Mr Shaw in one way or another since 2010. At no time have any of those complaints been upheld. As noted above, there are four Standards Committee determinations which comprehensively address Mr Mailley’s complaints. The constant re-litigating of the same issues needs to be brought to an end, especially when the events at issue now occurred more than 10 years ago. It is regrettable the LCRO has never assessed the merits of Mr Mailley’s complaints. Mr Long’s submissions to the contrary60 are incorrect. However, that is not fatal in the context of this application.

60     That is, that “the complaints were extensively litigated and ventilated before the LCRO and the High Court”

[114]   One of the reasons why the LCRO has never considered the merits of the complaints is because Clark J in Mailley v Legal Complaints Review Officer61 stayed those review proceedings pending the final disposition of these proceedings. I have acknowledged an element of irony, as Mr Mailley claimed, in that outcome, but it is important to bear in mind that the principal reason Clark J gave for staying the judicial review proceedings was that, at that time, Mr Mailley appeared to have walked away from these proceedings without taking steps towards their resolution or discontinuing them.

[115]   As noted above, the scheme of the LCA 2006 does not bar Mr Mailley from bringing these proceedings.62 It is clear the Court has jurisdiction to determine whether Mr Shaw acted unlawfully and, if so, what remedy should be granted. However, I note that the scheme of the legislation is that complaints about fees and the ethical conduct of barristers and solicitors should generally be dealt with in the specialist jurisdiction. For example, s 152(4) provides that a Standards Committee determination under s 152(1) (including a determination the Committee take no further action) is final. Similarly, s 161(3) provides that a certificate of the Standards Committee (certifying the amount of a bill of costs that the Committee finds to be due to or from the practitioner) or, a relevant decision of the LCRO, is “final and conclusive as to the amount due.” I acknowledge that no certificate has been issued in this case. However, in my view, where, as here, Standards Committees have, on multiple occasions, investigated and rejected the same allegations of deceit/dishonesty this Court is entitled to look very critically at whether a sufficiently adequate evidential basis for the serious allegations has been established. I find that it has not.

Conclusion on Mr Shaw’s application to strike out Ms Nutarelli’s claims

[116]   Ms Nutarelli paid the two deposits of $75,000 into the Marshall Bird & Curtis trust account on 4 December 2008. Mr Shaw’s second invoice of $104,452.75 was paid from those funds.

61     Mailley v Legal Complaints Review Officer, above n 17.

62     See McKinnon v Skelton [2020] NZHC 1445; Wynn Williams & Co v Kain [2011] 3 NZLR 709 at

[69] and [72].

[117]   Ms Nutarelli claims to have been a party to the alleged $150,000 fee cap agreement with Mr Shaw.    Her claim in contract is pleaded  as an alternative to    Mr Mailley’s claim for breach of contract.

[118]   Ms Nutarelli alleges Mr Shaw was deceitful, negligent and breached his contract with her by failing to complete all the habeas corpus and extradition work within the $150,000 cap, contrary to representations he made to her and Mr Davison.

[119]   Mr Shaw did not of course represent or act for Ms Nutarelli but, rather, for Mr Mailley. She has not alleged a breach of fiduciary duty.  However, in substance, Ms Nutarelli’s claims are essentially the same as Mr Mailley’s.

[120]   For the reasons set out above in relation to Mr Mailley’s claims, I find that the claims made by Ms Nutarelli against Mr Shaw are equally incapable of success and must be struck out.

[121]   In relation to the limitation issue, I note that no issue of disability is raised by Ms Nutarelli. Her claims are, in the main, statute barred.

[122]   I further note that Ms Nutarelli does not claim any actual loss flowing from the claimed breach of contract, negligence and deceit. Like Mr Mailley, her claims are confined to general damages, punitive damages and damages for emotional harm.

Applications by the NZLS to strike out the claims of both plaintiffs

[123]   Mr Mailley and Ms Nutarelli have each brought three causes of action against the NZLS – negligence, breach of statutory duty and “public misfeasance”. The plaintiffs sue the NZLS for breaches of these alleged private duties arising from the conduct of public and quasi-judicial regulatory functions of Standards Committees set by the NZLS, dealing with complaints against Mr Shaw. As submitted by Mr Mullins for the NZLS, the NZLS is being sued because the plaintiffs disagree with the regulatory decisions and acts of the Standards Committees.

[124]   I find that the plaintiffs’ claims in negligence and for breach of statutory duty are incapable of succeeding. Those claims63 are all clearly within the scope of the

63     Mr Mailley’s fifth, sixth and seventh cause of action and Ms Nutarelli’s fourth, fifth and sixth cause of action.

statutory immunity conferred on the NZLS by s 272 of the LCA 2006. For that reason alone, they must be struck out.

[125]Section 272 reads:

272Protection of New Zealand Law Society and New Zealand Society of Conveyancers and other persons

Neither the New Zealand Law Society nor the New Zealand Society of Conveyancers, nor any member, officer, or employee of either of those bodies, is to be under any criminal or civil liability in respect of anything done or omitted to be done, or in respect of words spoken or written, –

(i)at, or for the purposes of, any inquiry or the hearing of, or otherwise dealing with, any proceedings under this Part; or

(ii)in connection with any investigation of a practitioner’s conduct or affairs or accounts for the purposes of this Part; or

(iii)in the publication of any report or statement relating to any proceedings before a Standards Committee or the Legal Complaints Review Officer or the Disciplinary Tribunal under this Part, in the exercise or purported exercise of any power conferred by this Act or any rules made under this Act to publish any such report or statement, –

unless it is proved to the satisfaction of the court before which any proceedings are taken that the defendant in those proceedings acted in bad faith.

[126]   The causes of action in negligence and for breach of statutory duty clearly seek to invoke civil liability by the NZLS for proceedings before a Standards Committee under the relevant Part 7 of the LCA 2006. They cannot succeed.

[127]   The plaintiffs have pleaded bad faith as an element of their causes of action in negligence and breach of statutory duty. They no doubt do so, mindful of the bad faith exemption in s 272 of the LCA 2006.

[128]   The plaintiffs allege that the dismissal of the complaints against Mr Shaw were an act of bad faith because the relevant Standards Committees failed to properly examine the circumstances of the first invoice and the issue of the $150,000 fee cap, that their determinations were perfunctory and because they simply and improperly accepted Mr Shaw’s version of events. It is also alleged that given Mr Shaw’s “status as an established high-profile barrister” the complaints against him should have been referred to another regional disciplinary committee.

[129]   Although not expressly pleaded as such, it seems clear that the plaintiffs are alleging corruption by the NZLS in the sense that, because Mr Shaw was part of the “legal establishment”, the various Standards Committees failed to hold him accountable for clearly improper conduct.

[130]   An element of bad faith is not a requirement or an element of a cause of action for negligence or breach of statutory duty. The issue of bad faith is best considered in relation to the misfeasance in public office cause of action, where a bad faith element is clearly an element of the tort. This is discussed below.

[131]   I also agree with the submission of the NZLS that it is settled law that functions which amount to the exercise of quasi-judicial powers are not appropriately the subject of a duty of care.64 In my view, it is clear that the impugned decisions and processes at issue here involve the exercise of quasi-judicial powers – and for that reason, as well, the causes of action in negligence and for breach of statutory duty cannot succeed. In principle, the impugned decisions of the NZLS and/or the LCRO could be the subject of judicial review. However, that is not what is claimed in these proceedings,65 where the plaintiffs seek damages for tortious wrongs.

[132]   As the High Court recognised in Parker v Legal Services Commissioner,66 challenges to the processes adopted and the determination of complaints are appropriately brought via the express right of review to the LCRO and via judicial review, not tort.67 The Court in Parker also held:68

… negligent or wrong decision making by a quasi-judicial body does not give rise to a potential claim in negligence based on a duty of care in private law. Rather, such decisions are properly the subject of remedial processes provided for under the relevant statutory scheme or of judicial review. Thus, a civil claim, as contended for in Mr Parker’s case, can have no prospects of success.

[133]   The negligence cause of action is further flawed because the pleading does not allege that the plaintiffs suffered any loss.

64 Parker v Legal Services Commissioner [2015] NZHC 524, [2015] NZAR 637 at [111]; Attorney- General v Body Corporate 200200 [2007] 1 NZLR 95 (CA) at [41]; Wellington District Law Society v Price Waterhouse [2002] 2 NZLR 767 (CA).

65     See Mailley v Legal Complaints Review Officer, above n 17.

66     Parker v Legal Services Commissioner, above n 65.

67     At [119]; McGuire v New Zealand Law Society [2020] NZDC 3011 at [58]–[85].

68     Parker v Legal Services Commissioner, above n 65, at [133].

[134]   Having disposed of these causes of action, the critical issue that arises in relation to the NZLS’ strike out application is whether there is a tenable cause of action for the plaintiffs’ remaining cause of action against the NZLS – that is, misfeasance in public office.69 The allegations of bad faith are repeated in relation to the misfeasance in public office causes of action and refer back to the particulars given at paragraphs

[86] and [87] of the 3ASOC. It is not in dispute that the statutory immunity in s 272 of the LCA 2006 excludes actions of bad faith. Despite this, I find that there is not a tenable cause of action for misfeasance in public office.

[135]        The Court of Appeal in Currie v Clayton,70 set out the elements that must be established for a claim of misfeasance in public office. They are as follows:

(a)Standing: the plaintiff must have standing to sue;

(b)Public office: the defendant must be a public officer;

(c)Unlawful conduct: the defendant must have acted or omitted to act in purported exercise of their public office unlawfully either:

(i)intentionally, that is actually knowing their actions or omission to act were beyond the limits of their public office; or

(ii)with reckless indifference as to whether they were acting or omitting to act outside those limits

(d)Intention: The defendant must have so acted or omitted to act either:

(i)with malice towards the plaintiff, that is, with intention to harm the plaintiff; or

(ii)knowing their conduct was likely to harm the plaintiff, or people in the general position of the plaintiff; or

(iii)with reckless indifference as to whether the plaintiff would be harmed. Subjective recklessness, not objective recklessness, is required.

69     Mr Mailley’s seventh cause of action and Ms Nutarelli’s sixth cause of action.

70     Currie v Clayton [2015] 2 NZLR 195 (CA) at [40].

(e)Resulting loss: the plaintiff must actually have suffered loss and the defendant’s actions must have caused the plaintiff’s claimed loss.

[136]        For the reasons submitted by the NZLS, the plaintiffs’ claims for misfeasance in public office are also fundamentally flawed. First, it is far from clear that the Standards Committees, its members, or the NZLS are “public officers” at all.71 However, even if that issue is arguable, it is clear from the pleadings that the remaining critical elements of unlawful conduct, intention and resulting loss are not pleaded. There is no allegation of knowing/reckless unlawful conduct directed at either defendant, no known allegation of intention to harm on the part of the NZLS at all (nor the Standards Committee),72 and no causation or loss set out.

[137]        As noted above at paragraph [87], where an allegation of bad faith, recklessness or fraudulent intent is made, the High Court Rules require that there be particulars of the facts that support the state of mind alleged. Not only must allegations of bad faith be properly particularised, but they must not be made unless there is the necessary information to “condemn by necessary implication those whose acts or omissions constitute that conduct.”73

[138]As Mr Mullins submitted, the key pleading against the NZLS at paragraphs

[86] and [87] of the 3ASOC are in substance complaints about the process followed by the Standards Committees in their substantive decisions. The allegations and particulars do not show any sustainable basis for a conclusion that those alleged failings are a result of the Standards Committees having acted in bad faith (let alone the NZLS having done so). The bald allegation about Mr Shaw having status as a “high-profile barrister” does not in substance say anything about any bad faith by the Standards Committees.

[139]         The Standards Committee did, of course, open its own motion investigation into the conduct of Mr Shaw and it also dealt with a related complaint against Mr Ellis. In substance, the plaintiffs cannot point to anything other than their own perception of

71    A “public officer” must be compensated from public sources generally: Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at [19.2.01]. Standards Committee’s lawyer members are volunteers and the NZLS regulatory functions are funded from practicing fees and levies from lawyer members.

72 See McGuire v New Zealand Law Society, above n 68, at [39].

73 Carter Holt Harvey Ltd v Commerce Commission [2009] NZCA 40, [2009] 3 NZLR 573 at [80].

the alleged failings of the Standards Committees. In my view, their pleading falls well short of the strict requirements to amount to a proper allegation of fraud/bad faith. In particular, the evidence falls well short of the standard of sufficient cogency such that it should go to trial.

[140]         There is also some obvious merit to Mr Mullins’ submission that for a misfeasance in public office claim there is a need to identify one person or named persons who are alleged to have acted with malice. That has not happened here where the plaintiffs seek to hold the NZLS liable.

[141]         Although I need not make any finding on the issue, I incline to the view that the Canadian jurisprudence that the plaintiffs rely on to hold the NZLS vicariously liable for the actions of the Standards Committees, can readily be extinguished.74 In those cases the relevant law society was the employer and was vicariously responsible for the employee of the Society (the person who had acted with bad faith). In my view, there is considerable merit to the submission of Mr Mullins that the situation here, where Standards Committee members are not employees and are instead intended to be independently exercising quasi-judicial functions, is fundamentally quite different.75

[142]         I further find that the misfeasance in public office cause of action in the 3ASOC is, in reality, incapable of amendment in a way which would satisfy the strict requirements for a bad faith pleading. I also find that, in any event, I should not allow any such amendment. It is apparent from the chronology that the NZLS has made repeated requests of the plaintiffs to provide appropriate particulars as to bad faith and has also helpfully and responsibly brought to the plaintiffs’ attention the relevant principles that apply. As early as November 2015, NZLS wrote to the plaintiffs contending that the assertion of “bad faith” was inadequately pleaded. I further note that Lang J, in his minute of 13 August 2020, directed that the plaintiffs were on notice that the amended statement of claim (the subject of the minute) would be the plaintiffs’ “final chance to re-plead their claim.”76 His Honour noted that the plaintiffs needed

74     Conway v The Law Society of Upper Canada (2016) ONCA 72 (CanLII); Robson v The Law Society of Upper Canada (2018) ONCA 944.

75     McGuire v New Zealand Law Society, above n 68, at [39]–[46].

76     Mailley & Or v Shaw & Or HC Auckland CIV-2015-404-1185, 13 August 2020 (Minute of Lang

J) at [4].

to be aware that the Court would be highly unlikely to permit them to re-plead their case again.

[143]         In addition to the above flaws, the causes of action labelled “public misfeasance” and “breach of statutory duty” were not pleaded at all until well after the six-year limitation period passed in respect of all of the impugned decisions of the Standards Committee. The latest that any money claim could have been made was  10 September 2019, being six years after Standards Committee decision number 7302 of 10 September 2013.

[144]         The plaintiffs unsuccessfully attempted to discontinue against the NZLS in late 2018. It appears that there was no discontinuance because the NZLS did not agree to forego costs. The plaintiffs then filed an amended statement of claim seeking general damages of $1 and “an acknowledgement by the NZLS of their failings”. At a directions hearing before Associate Judge Bell on 6 November 2018, the NZLS raised concerns that the plaintiffs’ approach was vexatious.77

[145]         For all these reasons, all causes of action, including the claim for misfeasance in public office, must be struck out.

Result

[146]         The applications by the first defendant, Mr Shaw, and by the third defendant, the NZLS, to strike out the proceedings are granted. All causes of action are struck out and the proceedings are accordingly at an end.

[147]         In the circumstances it is not necessary for me to address the alternative applications by the defendants for security for costs.

[148]I note that the NZLS seeks to be heard on the question of costs.

[149]         My preliminary view in relation to costs for Mr Shaw, is that the plaintiffs should pay costs to Mr Shaw on a 2B basis.

77     See Mailley & Or v Shaw & Or HC Auckland CIV-2015-404-1185, 6 November 2018 (Minute of Associate Judge Bell).

[150]         In the event that costs cannot be agreed, the parties are to file submissions addressing the issue as follows:

(a)The defendants, as the successful parties, are to file and serve submissions addressing the issue of costs within 10 working days;

(b)The plaintiffs are to file and serve submissions in response 10 working days after receipt of the defendants’ submissions.

[151]The Court will then determine the question of costs on the papers.

Associate Judge P J Andrew

SCHEDULE 1 - CHRONOLOGY

Date	Event	Document Ref (CBD)
May 2003 – April 2004	Mr Mailley remanded in custody in Queensland – note that Ms Nutarelli pleaded guilty to her part in the fraudulent dealings and was convicted and sentenced to three years’ imprisonment but had her sentence suspended after six months in prison.	Extradition judgments bundle page 167 – Mailley v District Court at North Shore [2016] NZCA 83 at [5] and [70].
March 2005	Warrant for Mr Mailley’s arrest issued in Queensland after a failure to appear in court.	Extradition judgments page 149 – Mailley v District Court at North Shore [2016] NZCA 83 at [6].
2 July 2008	Mr Mailley arrested in New Zealand and remanded in custody.	Extradition judgments bundle page 167  – Mailley v District Court at North Shore [2016] NZCA 83 [70].
August 2008	Mr Shaw first engaged by Mr Cooke to represent Mr Mailley.	Bundle of documents for hearing – interlocutory application page 273 and 294 – Affidavit of Antony Shaw dated 25 October 2019 at [11].
27 August 2008	Invoice by Mr Shaw to Mr Hart as disbursement for $28,125 (with $20,000 plus  GST  “immediately  payable”  and $5,000 plus GST “payable within seven days of the conclusion of the extradition hearing”) – (the first invoice).	Bundle of documents for hearing – interlocutory application pages 293 and 294.
29 August 2008	Payment of $22,500 made to Mr Shaw by either Mr Hart or Mr Cooke. Statement of account from Mr Hart to Mr Cooke for Mr Mailley referring to “Disbursements – Antony Shaw” in the sum of $25,000.	Bundle of documents for hearing – interlocutory application page 273 – Affidavit of Antony Shaw dated 25 October 2019 at [12]. Plaintiffs’ bundle Tab 7 page 14.
27       November 2008	Dinner meeting with Mr Shaw, Ms Nutarelli and Mr Davison – alleged agreement of $150,000 cap.	Plaintiffs’     bundle     of documents Tab 9 page 16

4 December 2008	Two payments of $75,000 deposited by Ms Nutarelli into the Marshall Bird & Curtis trust account.	Bundle of documents for hearing – interlocutory application pages 52 and 399.
5 December 2008	Email from Mr Davison to Mr Shaw confirming details agreed at meeting (reference to fee cap of $150,000).	Plaintiffs’ bundle Tab 9 page 16
12       December 2008	Tax invoice of Mr Shaw for $104,452.75 (including GST) issued to, and signed off by, Mr Mailley – (the second invoice).	Bundle of documents for hearing – interlocutory applications page 295.
15       December 2008	Client appointment contract signed by Ms Curtis and Mr Mailley for “Retainer provided” “$150,000 (Inclusive of GST)”	Plaintiffs’ bundle Tab 10 page 20.
17       December 2008	Payment made by Marshall Bird & Curtis to Mr Shaw as authorised by Mr Mailley. Habeas corpus application successful in High Court – Mr Mailley was in custody from 2 July 2008 until granted bail on 17 December 2008.	Bundle of documents for hearing – interlocutory application page 399. Extradition judgments bundle page 167 – Mailley v District Court at North Shore [2016] NZCA 83 at [70].
1 January 2009	Visit by Mr Mailley to Mr Shaw at Nelson – meeting at Rutherford Hotel for six hours.	Bundle of documents for hearing – interlocutory application page 277 and 278 – Affidavit of Antony Shaw dated 25 October 2019 at [32] and [33].
21 January 2009	Tax invoice issued by Mr Shaw to Marshall Bird & Curtis in the sum of $53,615.45 (includes six-hour meeting at Rutherford Hotel, Nelson) – (the third invoice).	Plaintiffs’ bundle Tab 3 page 6 and Bundle of documents for hearing – interlocutory application page 299.
Late January 2009 and February/March 2009	Grant Illingworth QC engaged as counsel for Mr Mailley (Mr Shaw had no involvement).	Police v Mailley CRI- 2000-063-544086,       11 September 2009.
10 March 2009	Email from Mr Shaw to Mr Mailley agreeing to reduce invoice of 21 January 2009 by $6,750 (i.e. $6,000 plus GST).	Bundle of documents for hearing    –    interlocutory application page 400.
11 March 2009	21 January 2009 invoice re-issued (Mr Shaw removed the Nelson visit) – re- issued in the sum of $46,865.45.	Plaintiffs’ bundle Tab 4 page 9 and Bundle of documents for hearing – interlocutory application page 302.

24 May 2009	Email from Mr Mailley to Grant Illingworth QC dispensing with Mr Illingworth’s services.	Bundle of Documents for Hearing – interlocutory application page 404.
25 May 2009	Email from Mr Mailley to Mr Shaw re- engaging Mr Shaw’s services.	Bundle of Documents for Hearing   –   interlocutory application page 405.
1 June 2009	Email from Mr Mailley to Mr Shaw – expressing thanks for “legal work thus far” and acknowledges Mr Shaw and Mr Ellis’ “legal 5 star abilities”.	Bundle of Documents for Hearing – interlocutory application page 406.
Late     May/early June 2009	Agreement to fixed fee between Mr Mailley and Mr Shaw for the scheduled June 2009 extradition hearing.	Bundle of Documents for Hearing – interlocutory application page 391 – Third affidavit of Antony Shaw dated 29 September 2020 at [15].
June 2009	Extradition hearing before Judge Hubble in Auckland District Court – proceedings could not be completed and adjourned to 31 August 2009.	Extradition judgments bundle page 14 – Police v Mailley District Court North Shore CRI-2000- 063-544086, 11 September 2009 at [15].
21 August 2009	Fixed fee tax invoice issued by Mr Shaw to Mr Mailley for $20,000 (total bill including GST and disbursements $22,960) – (the fourth invoice) Invoice from Mr Shaw to Marshall Bird & Curtis in the total sum of $34,550 (plus GST) again, reference to fixed fee – (the fifth invoice)..	Bundle of Documents for Hearing – interlocutory application pages 279 and 305. At pages 279 and 306.
27 August 2009	Application to North Shore District Court, Auckland by Mr Ellis, Mr Shaw and Ms Curtis for leave to withdraw – reference to Mr Graeme Minchin having been appointed counsel.	Page 500. See also, Extradition judgments bundle page 14 – Police v Mailley District Court North Shore CRI-2000- 063-544086 at [15].
31 August 2009	Continuation of part-heard extradition hearing before Judge Hubble. Mr Shaw granted leave to withdraw as counsel.	Extradition judgments bundle page 14 – Police v Mailley District Court North Shore CRI-2000- 063-544086. See also page 329.
11      September 2009	Reserved judgment of Judge Hubble determining Mr Mailley eligible for surrender in the extradition.	Extradition judgments bundle page 14 – Police v Mailley District Court North Shore CRI-2000- 063-544086.

15 July 2010	First         Standards        Committee determination – decision to take no action because parties had resolved the issues relating to costs and agreement had been reached between them (the invoice for $104,453.72, the original invoice for $22,500 and the three subsequent invoices all referred to).	Bundle of Documents for Hearing – interlocutory application page 223.
9 November 2010	Letter from Mr Davison, Barrister, to Mr Shaw, in relation to Mr Hart’s representation of Mr Mailley.	Bundle of Documents for Hearing – interlocutory application page 407.
12 April 2011	Decision of Ellis J in Mailley v Police [2011] 3 NZLR 223 upholding decision of Judge Hubble.	Extradition judgments bundle page 30 – Mailley v Police [2011] 3 NZLR 223 (HC).
28 June 2011	Letter from Mr Shaw to Mr Davison explaining invoice to Mr Hart.	Bundle of Documents for Hearing – interlocutory application page 409.
20       November 2012	Second Standards Committee determination – Committee concluded the complaint was a “resurrection” of the previous fees complaint and that Mr Shaw “had not breached any professional obligations nor acted improperly” – reference to reg 29 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 and the two-year limitation, unless evidence of special circumstances.	Bundle of Documents for Hearing – interlocutory application pages 225 – 226.
24       December 2012	LCRO receives application for review of the second Wellington Standards Committee determination dated 20 November 2012	Bundle of Documents for Hearing – interlocutory application page 350 – Decision as to jurisdiction of the LCRO dated 31 August 2016 at [4].
13 January 2013	Letter from Mr Lyttelton to Mr Shaw addressing issue of all the invoices (exhibit G which the plaintiffs place great reliance upon).	Bundle of Documents for Hearing – interlocutory application page 534.
12 February 2013	Court of Appeal judgment in Mailley v District Court at North Shore [2013] NZCA 6 – amended affidavit of Mr Minchin adduced on appeal (and that of Mr Lyttelton) – interim judgment of the Court.	Extradition judgments bundle page 56 – Mailley v District Court at North Shore [2013] NZCA 6.
28 June 2013	Mailley v District Court at North Shore [2013] NZCA 266 – appeal from the decision of Ellis J (dated 12 April 2011)	Extradition judgments bundle page 61 – Mailley v District Court at North Shore [2013] NZCA 266.

allowed, quashing the surrender order made in the District Court.
10      September 2013	Third determination of Standards Committee – concluded that Mr Shaw had not breached any of his professional obligations under the rules and there was no sufficient evidence to justify the re- opening of the previous complaints or any further investigation – reference to Mr Shaw’s conduct before Judge Hubble on 31 August 2009 when the Judge granted Mr Shaw leave to withdraw – see the description of the complaints at paragraph [7]. Determination of the Standards Committee rejecting complaint by Mr Mailley against Mr Ellis. Mr Mailley alleged Mr Ellis had failed to take appropriate action after becoming aware that Mr Hart and Mr Shaw “had conspired to fraudulently obtain $22,500 from Mr Mailley”. Mr Mailley also alleged Mr Ellis’ fees were excessive and in breach of an agreement to cap all fees at $150,000. The Committee refers to Mr Ellis saying that he never had any suspicion or belief that Mr Shaw had engaged in fraud. It also records Mr Ellis’ evidence that his letter of 2 July 2009 had been read out of context. “The Standards Committee was not satisfied that Mr Ellis had breached any of his professional obligations towards Mr Mailley or that he had allowed his association with Mr Shaw to compromise the duties he owed.”	Bundle of Documents for Hearing – interlocutory application pages 228 – 234, see [45] and [46]. Pages 235 – 241 – see [6], [15] and [43].
14 October 2013	LCRO receives application for review of Standards Committee decision dated 10 September 2013.	Mailley v Shaw LCRO 337/2012,        304/2013 [Decision as to Jurisdiction] at [4].
3 December 2013	Fourth determination of Standards Committee – Standards Committee determined to take no further action in relation to its own motion investigation pursuant to s 138(2) of the LCA 2006 to investigate Mr Shaw.	Bundle of Documents for Hearing – interlocutory application page 345.
20 June 2014	Reserved judgment of Judge Pippa Sinclair in District Court – Commonwealth of Australia v Mailley (North Shore DC CRI-2008-044- 001978). Mr Mailley argued he would commit suicide if extradited,  whichwas	Extradition judgments bundle page 81 – Commonwealth           of Australia v Mailley CRI- 2008-044-0001978, 20 June 2014.

an extraordinary circumstance making it unjust or oppressive to extradite him – order made declining Mr Mailley’s application to refer his case to the Minister of Justice. Order for surrender made.
12       November 2014	Judgment of Keane J made in Mailley v District Court at North Shore [2014] NZHC 2816,[2015] 2 NZLR 567 – judicial  review  of  decision  of  Judge Pippa Sinclair of 20 June 2014 – judicial review unsuccessful.	Extradition judgments bundle at page 113 – Mailley v District Court at North Shore [2014] NZHC 2816, [2015] 2 NZLR 567.
2 June 2015	Plaintiffs issue this proceeding in the High Court – the first statement of claim	Bundle of Documents for Hearing – interlocutory application page 73 – Statement of claim.
7 July 2015	Third defendant NZLS wrote to the plaintiffs concerning statutory immunity under the LCA 2006.	Bundle of Documents for Hearing – interlocutory application page 201 – Statement of defence (NZLS).
5 November 2015	NZLS writes to plaintiffs, inviting reconsideration of their position and requesting financial information showing ability to pay adverse costs award.	Bundle of Documents for Hearing – interlocutory application page 203.
19       November 2015	NZLS writes to plaintiffs, advising that the assertion of “bad faith” is inadequately pleaded. Plaintiffs write (via Mr Lyttleton) to NZLS, asserting that the claim of “bad faith” is already fully particularised.	Bundle of Documents for Hearing – interlocutory application page 205 Page 212.
20       November 2015	NZLS responds to plaintiffs, explaining the requirements for a bad faith pleading as supported by relevant case law. Plaintiffs reply (via Mr Lyttelton) to NZLS, refusing to amend claim and setting out the various definitions of bad faith.	Page 213. Page 214.
1 December 2015	Associate Judge Doogue makes timetable orders and finds Mr Lyttelton is not able to act as an advocate for the plaintiffs.	Bundle of Documents for Hearing – interlocutory application page 702 – Minute of Associate Judge Doogue, dated 1 December 2015.
22 January 2016	Plaintiffs file “revised statement of claim”.	Bundle of Documents for Hearing   –   interlocutory application page 119

5 February 2016	NZLS writes to plaintiffs requesting confirmation that all the allegations relief upon for “bad faith” are in the “revised statement of claim”.	Bundle of Documents for Hearing – interlocutory application page 219
18 March 2016	LCRO directed the applications for review be stayed until the High Court proceedings (i.e. these proceedings) were concluded.	See Bundle of Documents for the third defendant (NZLS) tab 16 – Mailley v Legal Complaints Review Officer [2018] NZHC 3363 per Clark J at [3](d).
23 March 2016	Court of Appeal decision in Mailley v District Court at North Shore [2016] NZCA 83 – leave granted to Mr Mailley to adduce fresh evidence (on appeal from judicial review decision of Keane J). Appeal against Keane J’s decision dismissed.	Extradition judgments bundle page 147 – Mailley v District Court at North Shore [2016] NZCA 83.
19 May 2016	Associate Judge Doogue issued minute recording plaintiffs’ failure to file any opposition or attend case management conferences – Associate Judge Doogue stays the proceedings.	Bundle of Documents for hearing – interlocutory applications page 709 – Minute of Associate Judge Doogue dated 19 May 2016.
2016	Mr Mailley extradited to Queensland, Australia.
20 June 2016	Judgment of Supreme Court in Mailley v District Court at North Shore [2016] NZSC 73 – Supreme Court refuses leave to appeal from Court of Appeal decision dismissing High Court decision on judicial review.	Extradition judgments bundle page 170 – Mailley v District Court at North Shore [2016] NZSC 73.
31 August 2016	LCRO determines he has no jurisdiction to consider the applications for review of the         Standards        Committees’ determinations and declines to do so. LCRO tenderes his apologies to the parties for not having considered and decided that issue sooner.	Bundle of Documents for the third defendant (NZLS) tab 16 – Mailley v Legal Complaints Review Officer [2018] NZHC 3363 at [3](g).
24 January 2018	Mr Mailley files and serves judicial review proceedings challenging the LCRO’s determination that he had no jurisdiction to entertain the review applications (CIV-2008-404-134) (i.e. a challenge to decisions 304/2013 and 337/2012).
29 June 2018	Associate Judge Smith refuses plaintiffs’ request for a three-month adjournment of these proceedings and grants a one- month adjournment instead.	Bundle of Documents for Hearing – interlocutory application page 714 at [3].

17 October 2018	Plaintiffs purport to file a notice of discontinuance against second defendant, Mr Ellis, and NZLS (refused by Registry). Plaintiffs purport to file “second amended statement of claim” (refused by Registry).	Bundle of Documents for Hearing – interlocutory application page 246.
18 October 2018	Plaintiffs file a memorandum seeking leave to file a rejected notice of discontinuance and amended statement of claim. The plaintiffs attempted to discontinue against the NZLS by memorandum following an unsuccessful attempt to discontinue without the agreement of the other defendant.	Bundle of Documents for Hearing – interlocutory application page 244. Minute of Associate Judge Bell Bundle of Documents for Hearing – interlocutory application Bundle of Documents for Hearing – interlocutory application page 718 at [11].
30 October 2018	Plaintiffs file submissions stating they have re-validated the claim against NZLS and determine to continue their action against it.	Bundle of Documents for Hearing – interlocutory application page 260.
6 November 2018	Minute of Associate Judge Bell – rejecting claim that stay made by Associate Judge Doogue became permanent. Proceedings adjourned with directions for a defended hearing on applications to strike out.	Bundle of Documents for Hearing – interlocutory application page 715.
16       November 2018	Plaintiffs     file     “second     amended statement of claim” against NZLS.	Bundle of Documents for Hearing – interlocutory application page 173.
18       December 2018	Judgment of Clark J in Mailley v Legal Complaints Review Officer [2018] NZHC 3363 staying the application for judicial review until final disposition of these 2015 proceedings. Justice Clark also orders Mr Minchin be debarred from acting as counsel in the judicial review proceedings. Mr Mailley ordered to pay scale 1A costs.	Tab 16 NZLS bundle of authorities – Mailley v Legal Complaints Review Officer [2018] NZHC 3363 at [57].
2019	Decision of Clark J in Mailley v Legal Complaints Review Officer [2019] NZHC 1608, declining leave to appeal to the Court of Appeal from her stay decision of 2018.	Mailley v Legal Complaints Review Officer [2019] NZHC 1608.
4 December 2019	Decision of Edwards J dismissing the application by Mr Shaw to review the directions of Associate Judge Bell.	Mailley v Shaw [2019] NZHC 3171.

20 March 2020	Decision of Edwards J refusing application for leave to appeal to the Court of Appeal (i.e. her review decision of Associate Judge Bell).	Mailley v Shaw [2020] NZHC 583.
16 May 2020	Mr Shaw files application to have Mr Mailley bankrupted.	Bundle of Documents for Hearing – interlocutory application page 360 – second affidavit of Antony Shaw in support of security for costs and strikeout application at [10].
A few days prior to 2 July 2020	Mr Shaw withdraws bankruptcy application against Mr Mailley because total debt of $7,461.50 paid.	Bundle of Documents for Hearing – interlocutory application page 360 – second affidavit of Antony Shaw in support of security for costs and strikeout application at [11].
13 August 2020	Justice Lang issues timetable for final amended pleadings by plaintiff and determination of outstanding applications – expressly states, “the plaintiffs are on notice that this is their final chance to re-plead their claim.”	Bundle of Documents for Hearing – interlocutory application pages 724 and 725 – Minute of Lang J.
26 August 2020	Plaintiffs file third amended statement of claim – introduces for the first time a cause of action of breach of statutory duty against the NZLS and a cause of action of “public misfeasance”.	Bundle of Documents for Hearing – interlocutory application page 1.