Mailley v Shaw

[2024] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA39/2022
 [2024] NZCA 315

BETWEEN	MARTIN MAILLEY Applicant
AND	ANTONY SHAW First Respondent NEW ZEALAND LAW SOCIETY Second Respondent

Court:	Goddard, Katz, and Mallon JJ
Counsel:	Applicant in person D A Cowan and J E G San Diego for First Respondent T P Mullins and D A C Bullock for Second Respondent
Judgment: (On the papers)	15 July 2024 at 10.00 am

JUDGMENT OF THE COURT

AThe application for review of the decision of a single judge declining to recall the Court’s judgment is declined.

BTo avoid doubt, the application for recall is declined.

CMr Mailley must pay one set of costs to the respondents collectively for a standard application on a band A basis, with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Mr Mailley’s application for review of a decision of a single judge

1. On 19 December 2023 this Court delivered a judgment declining Mr Mailley’s application for special leave to appeal to this Court against a judgment of the High Court (CA judgment).[1]  The High Court judgment struck out proceedings brought by Mr Mailley against the respondents.[2] 

   [1]Mailley v Shaw [2023] NZCA 659 [CA judgment]. The application for special leave to appeal was brought in relation to a High Court judgment delivered by Toogood J: Mailley v Shaw [2021] NZHC 2359.

   [2]More precisely, the High Court judgment confirmed an earlier decision striking out the proceedings delivered by Andrew AJ: Mailley v Shaw [2020] NZHC 3102.

2. On 13 February 2024 Mr Mailley applied for an order recalling the CA judgment.  By minute dated 10 April 2024 (the minute) Cooper P declined that application.  The President said that having read the application and the submissions filed in opposition to it, he was satisfied that no proper basis had been put forward for the recall of the CA judgment.

3. On 6 May 2024 Mr Mailley applied for a review by this Court of the decision in the minute declining recall, as contemplated by s 61A(2) of the Judicature Act 1908 (which has been repealed, but which applies to this appeal because the High Court proceeding was commenced before the Senior Courts Act 2016 came into force).

4. Mr Mailley says in his application for review that:

   (a)It is arguable that a single judge did not have jurisdiction to determine the recall application, as it was arguably an order disposing of a question or issue before the Court in a proceeding.

   (b)The recall application raised the serious matter of new material evidence of fraud and perjury.

   (c)The minute referred to the President considering the application for recall and the respondents’ submissions but did not refer to the applicant’s submissions.  Mr Mailley says that this appears to suggest his submissions were not considered.  He also says that the Court did not respond to his request for leave to file submissions responding to submissions filed by the first respondent (however he did proceed to file them in any event).

The jurisdiction issue

1. It is not strictly necessary to finally determine the jurisdiction issue, as we have considered Mr Mailley’s recall application afresh as a panel of three judges.  However we consider that a single judge does have jurisdiction to determine a recall application under s 61A(1) of the Judicature Act, as an order declining a recall application:

   (a)is incidental to the determination of the substantive application (which has already occurred);

   (b)does not determine the substantive application (again, this has already happened); and

   (c)does not dispose of any question or issue that is before the Court in the appeal or proceeding — the questions and issues in the appeal or proceeding (here, the application for special leave) have already been determined, and the Court does not reconsider those issues on their merits in the context of a recall application.

Other grounds for review and recall

1. Mr Mailley’s suggestion that Cooper P did not consider his submissions appears to be based on a misreading of the minute: as we read it, the reference in the minute to Mr Mailley’s application includes all material — including submissions — filed in support of that application.  But in any event that is immaterial, as we have read all the material filed by Mr Mailley in support of his recall application.

2. The recall application does not identify any arguable basis on which the CA judgment could be recalled.  Mr Mailley says that he has fresh evidence of fraud and perjury on the part of the first respondent.  We do not consider that the material Mr Mailley has placed before this Court provides any reliable foundation for those very serious allegations.  But even if those allegations had a proper foundation, they would not provide a reason for this Court to recall the CA judgment.  To the extent that the allegations are reflected in the proceedings, they have been dealt with and are not fresh.  To the extent that they are new, as Mr Mailley argues, that would not be a reason for this Court to hear an appeal from the decision of the High Court striking out a different set of allegations against the respondents, which did not include new allegations now advanced by Mr Mailley.  If Mr Mailley wishes to pursue any genuinely new allegations against the first respondent, those would need to be pursued in fresh proceedings against him.  Nor can we see how the new allegations could provide any support for a claim against the second respondent.   

3. Thus it is not seriously arguable that there are very special circumstances of the kind that could justify recalling the CA judgment.[3]

   [3]See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; Craig v Williams [2019] NZSC 60 at [10]; and Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

4. We therefore decline to review the decision of Cooper P set out in the minute.  To avoid doubt, given that we have considered the recall application on its merits we also decline that application.

Result

1. The application for review of the decision of a single judge declining to recall the Court’s judgment is declined.

2. To avoid doubt, the application for recall is declined.

3. Costs should follow the event in the ordinary way.  Mr Mailley must pay one set of costs to the respondents collectively for a standard application on a band A basis,
   
   with usual disbursements.  We add that the only reason we have not called for submissions on whether indemnity costs should be awarded is the interest of all parties in avoiding further steps of little or no practical utility in the context of this proceeding.

Solicitors:
Ord Legal, Wellington for First Respondent
LeeSalmonLong, Auckland for Second Respondent