Mailley v Shaw

[2020] NZHC 583

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-001185

[2020] NZHC 583

BETWEEN

MARTIN MAILLEY

First Plaintiff

SABRINA NUTARELLI
Second Plaintiff

AND

ANTONY SHAW

First Defendant

THE NEW ZEALAND LAW SOCIETY

Third Defendant

Hearing:	[On the Papers]
Appearances:	M Mailley and S Nutarelli (Self-represented Plaintiffs) in Person D A Cowan for the First Defendant
Judgment:	20 March 2020

JUDGMENT OF EDWARDS J

[re Leave to Appeal]

This judgment was delivered by me on 20 March 2020 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Deputy Registrar

Counsel:     D A Cowan, Auckland

Copies To:    M Mailley, Auckland

S Nutarelli, Auckland

MAILLEY v SHAW [2020] NZHC 583 [20 March 2020]

[1]    The defendant applies for leave to appeal my judgment dated 4 December 20191 in which I dismissed the defendant’s application for a review of a decision of Bell AJ.2

[2]    Bell AJ declined to determine applications for a permanent stay and security for costs, and instead adjourned the hearing with various timetable directions as to the disposal of these and other applications. I found that there was no error in the Judge’s approach.

[3]    The application for leave to appeal is made under s 26P(1AA) of the Judicature Act 1908. That section provides that the High Court decision is final unless the High Court grants leave, or the Court of Appeal grants special leave in the event the High Court declines the leave application.

[4]    The principles that apply to second appeals apply equally to a leave application. In Gregory v Gollan, those principles were summarised as follows:3

The appeal must raise some question of law or fact capable of bona fide and serious argument, in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. In the end, the guiding principle must be the requirements of justice. Upon a second appeal, the Court of Appeal is not engaged in the general correction of error. Its primary function is to clarify the law and determine whether it has been properly construed and applied by the court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify the further pursuit of a matter which has already been twice considered and ruled upon by a court.

[5]    The correctness or otherwise of the decision is not of itself a matter relevant to the determination of the question whether leave should be granted.4 In general, leave will be less readily granted where the proposed second appeal relates to an interlocutory matter which does not determine the rights and liabilities of the parties.5 The overarching requirement, however, is the interests of justice.

1      Mailley v Shaw [2019] NZHC 3171.

2      Mailley v Shaw HC Auckland CIV-2005-404-3485 Minute, 6 November 2018 at [10].

3      Gregory v Gollan HC Auckland CIV 2005-404-3485 4 July 2007.

4 At [7].

5 At [8].

[6]    Mr Cowan, on behalf of the first defendant, submits that leave should be granted because Bell AJ’s decision to allow the plaintiffs to file an amended statement of claim without requiring them to first apply to lift the stay was illogical and procedurally unfair – and my decision to uphold those decisions was incorrect. It is also said that the Associate Judge’s failure to determine the security for costs application was in error, and that it was wrong for me not to consider the merits of that application on review.

[7]    Mr Cowan essentially repeats the submissions made at the review hearing as to why the first defendant says Bell AJ’s decision was wrong. Those submissions were considered and rejected by me in a fully reasoned decision. A second appeal is not concerned with general error correction – something more is required.

[8]    Further, the proposed appeal is from an interlocutory decision.  The  Associate Judge made timetabling orders to bring the various applications to a hearing. The parties will have a full and proper opportunity to present submissions on whether the plaintiffs’ claim should be permanently stayed or struck out. That is the proper forum to present the first defendant’s arguments.

[9]    In those circumstances, there are no issues of public or private importance raised in the proposed appeal that outweigh the cost of pursuing a second appeal. The application for leave to appeal must be dismissed.

Result

[10]The application for leave to appeal is dismissed.

[11]   As to costs, the plaintiffs failed to attend the telephone conference convened to address the disposal of the leave application without offering any reasonable excuse. In the circumstances, the costs shall lie where they fall.

Edwards J