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Mailley v Shaw

Mailley v Shaw

Case [2023] NZCA 659 19 December 2023

Professional Negligence

Civil Litigation & Procedure

Professional Discipline Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA39/2022
[2023] NZCA 659

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

Court:	Cooper P, Gilbert and Katz JJ
Counsel:	Applicant in Person D A Cowan and J E G San Diego for First Respondent T P Mullins, D A C Bullock and N Sussman for Second Respondent
Judgment: (On the papers)	19 December 2023 at 4.30 pm

JUDGMENT OF THE COURT

AThe application for special leave to appeal is declined.
BMr Mailley must pay costs to each of the respondents calculated for a standard application in band A, together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

Mr Mailley applies for special leave to appeal from a decision of the High Court, upholding on review a decision of Associate Judge Andrew striking out Mr Mailley’s claim against Mr Shaw and the New Zealand Law Society.[1] The application is the latest step in litigation that has already been described by the Supreme Court as having had a “lengthy and tortuous procedural history”.[2]

Background[3]

[1]Mailley v Shaw [2021] NZHC 2359 [Review decision]; and Mailley v Shaw [2020] NZHC 3102 [Strike‑out decision]. The Review decision was made under s 26P of the Judicature Act 1908 because Mr Mailley’s claim was commenced prior to the enactment of the Senior Courts Act 2016.

[2]Mailley v Shaw [2022] NZSC 93 at [2]. A second applicant, Ms Nutarelli, originally applied for special leave to appeal the Review decision but abandoned her application on 6 May 2022.

[3]This summary of facts is based on the detailed chronology of events relevant to the claims (including the procedural history) contained in the Strike-out decision, above n 1, at sch 1.

In 2003, Mr Mailley was charged in Queensland with 11 counts of fraud.[4] He failed to appear in court, and a warrant was issued for his arrest.[5] In 2008, Mr Mailley was arrested in New Zealand and faced extradition to Queensland. Mr Mailley fought the extradition in protracted proceedings spanning eight years. Eventually, in 2016 Mr Mailley was extradited to Queensland where he pleaded guilty to fraud and was imprisoned.[6]
[4]Strike-out decision, above n 1, at sch 1, referring to Mailley v District Court at North Shore [2016] NZCA 83. At [4] this Court summarised the charges Mr Mailley faced in Australia.
[5]Mailley v District Court at North Shore, above n 4, at [6].
[6]Strike-out decision, above n 1, at sch 1.
While Mr Mailley was fighting the extradition to Queensland, he engaged Mr Shaw as his lawyer for a 12‑month period between 2008 and 2009.[7]
[7]At sch 1.
The current proceedings began when Mr Mailley became dissatisfied with Mr Shaw. The original statement of claim was dated 2 June 2015, and was followed by five others culminating in the 26 August 2020 statement of claim.[8] Despite these successive pleadings, the Associate Judge held that the pleading contained…

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 [2023] NZCA 659
Case: [2023] NZCA 659
Decision Date: 19 December 2023 at 4.30 pm

CaseChat Overview and Summary

In Mailley v Shaw, Martin Mailley sought special leave to appeal against the Court of Appeal's decision to decline his application for leave to appeal the High Court's decision to uphold the Associate Judge's strike-out of his claims against Antony Shaw and the New Zealand Law Society (NZLS). The litigation between the parties had a lengthy and complex procedural history, including multiple complaints against Mr Shaw and investigations by the NZLS, which found no breaches of professional conduct by Mr Shaw. Mr Mailley's claims against Mr Shaw included breach of fiduciary duty, breach of contract, deceit, and negligence, while his claims against the NZLS included negligence, breach of statutory duty, and public misfeasance.

The primary legal issues before the Court of Appeal were whether Mr Mailley's proposed appeal raised any questions of law or fact capable of bona fide and serious argument, which were of sufficient importance to outweigh the costs and delay of a further appeal. The Court of Appeal held that Mr Mailley's proposed appeal did not meet this threshold. The Court noted that the issues raised by Mr Mailley were essentially factual in nature, and the High Court had already examined and decided them on two occasions. The Court of Appeal emphasised that it was not engaged in general error correction but rather in clarifying the law and determining whether it had been properly construed and applied by the Court below.

The Court of Appeal found that the High Court correctly upheld the Associate Judge's strike-out decision, and the proposed appeal merely challenged the High Court's findings of fact and application of settled legal principles. The Court of Appeal concluded that Mr Mailley's proposed appeal did not raise any issues of sufficient importance to justify further pursuit of litigation that had already been examined and decided by a court on two occasions. Consequently, the Court of Appeal declined Mr Mailley's application for special leave to appeal and ordered him to pay costs to each of the respondents.

The final orders of the Court of Appeal were that the application for special leave to appeal was declined, and Mr Mailley was to pay costs to each of the respondents calculated for a standard application in band A, together with usual disbursements.

Orders