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.

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REASONS OF THE COURT

(Given by Goddard J)

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

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.
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.
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of the decision in the minute declining recall, as contemplated by s 61A(2) of the Judicature Act 1908 (which has been repealed, but which applies to this appeal because the High Court proceeding was commenced before the Senior Courts Act 2016 came into force).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mailley v Shaw

Details

AGLC: Mailley v Shaw [2024] NZCA 315
Case: [2024] NZCA 315
Decision Date: 15 July 2024 at 10.00 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Martin Mailley sought review of a decision by a single judge to decline a request to recall a previous judgment. The case involved proceedings that Mr. Mailley had brought against Anthony Shaw and the New Zealand Law Society, which were struck out by the High Court. After the Court of Appeal declined Mr. Mailley's application for special leave to appeal the High Court's decision, he applied for the Court of Appeal judgment to be recalled. The Court of Appeal subsequently declined his application for recall, and Mr. Mailley then applied for review of this decision.

The primary legal issue before the Court of Appeal was whether there were grounds to recall the judgment declining Mr. Mailley's application for special leave to appeal. Specifically, the Court had to determine if the single judge had jurisdiction to decline the recall application, if there were any new or overlooked pieces of evidence that warranted reconsideration, and if the allegations of fraud and perjury presented a basis for recall. The Court also considered whether the serious allegations made by Mr. Mailley provided a sufficient reason to recall the judgment.

The Court of Appeal found that a single judge indeed had jurisdiction to decline the recall application, as the recall order was incidental to the substantive application and did not dispose of any question or issue before the Court. The Court dismissed Mr. Mailley's claim that his submissions were not considered, noting that all material filed in support of his application had been reviewed. Regarding the new evidence of fraud and perjury, the Court concluded that it did not provide a reliable foundation for such serious allegations and, even if true, would not justify recalling the judgment. The Court held that new allegations against the first respondent would need to be pursued in fresh proceedings, and there was no basis for a claim against the second respondent. Consequently, the Court of Appeal declined both the review and the recall application.

The Court of Appeal ordered that Mr. Mailley must pay one set of costs to the respondents collectively for a standard application on a band A basis, with usual disbursements. The Court noted that it did not call for submissions on whether indemnity costs should be awarded due to the interest of all parties in avoiding further steps of little practical utility.

Orders