Mailley v Shaw

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA402/2022

[2022] NZCA 558

BETWEEN
MARTIN MAILLEY

Applicant

AND

ANTONY SHAW

First Respondent

AND

NEW ZEALAND LAW SOCIETY

Second Respondent

Counsel:
Applicant in person

D A Cowan and JEG San Diego for First Respondent
T P Mullins, DAC Bullock and T N Sussman for Second Respondent

Judgment:
(Onthepapers)

16 November 2022 at 3.30 pm

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

The application for review of the Registrar’s decision is declined. Mr Mailley must pay security for costs by 2 December 2022.

REASONS

[1] Mr Mailley applies for review of a Registrar’s decision declining to waive security for costs.

[2] The litigation has an intense and convoluted history. I do not intend to repeat it, but rather adopt the account given by Collins J when refusing to waiver security in

MARTIN MAILLEY v ANTONY SHAW [2022] NZCA 558 [16 November 2022]

connection with another appeal stemming from the same dispute between Mr Mailley and his former counsel.¹

[3] Costs awarded in the High Court are in issue.² Mr Mailley says his appeal has merit because the daily rate used in fixing costs was wrong and there is an element of double recovery.

[4] I observe that Mr Mailley does not advance impecuniosity in this appeal. So it is not a case in which inability to pay might preclude an appeal that a reasonable litigant might bring.³ Rather, Mr Mailley argues that there is a public interest in having his appeal heard.

[5] The Registrar did not see it, and neither do I. The argument was rejected by Collins J in a recall decision.⁴ It can confidently be said that the appeal has no merit.

[6] Nor is this a case, having regard to the procedural history, in which the respondents should be denied the protection afforded by security. In particular, Mr Mailley has not paid that portion of the costs awards that he does not now dispute.

[7] The application for review is declined. Security must be paid by 2 December 2022.

Solicitors:
Ord Legal, Wellington for First Respondent
Lee Salmon Long, Auckland for Second Respondent

¹      Mailley v Shaw [2022] NZCA 41at [1]–[9].
²      Mailley v Shaw HC Auckland CIV-2015-404-1185, Minute of Toogood J, 13 July 2022.
³      Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [35].
⁴ Mailley v Shaw [2022] NZCA 180. The Supreme Court declined Mr Mailley’s subsequent applications for leave and recall: Mailley v Shaw [2022] NZSC 93; and Mailley v Shaw [2022] NZSC 100.

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Martin Mailley to review a Registrar’s decision to decline a waiver of security for costs in the context of an ongoing dispute between Mailley and his former counsel, Antony Shaw, as well as the New Zealand Law Society. The appeal involved costs awarded in the High Court, with Mailley arguing that the daily rate used in fixing costs was incorrect and that there was an element of double recovery. The court did not accept Mailley’s argument that there was a public interest in having his appeal heard, as the appeal had no merit. Furthermore, the respondents were entitled to the protection afforded by security due to the procedural history and Mailley’s failure to pay the portion of the costs awards that he did not dispute.

The court considered whether the Registrar’s decision to decline the waiver of security for costs should be reviewed. It found that the appeal did not have merit and that the respondents should not be denied the protection afforded by security. The court emphasised that Mailley’s appeal was not in the interest of the public, and that the respondents were entitled to protection due to Mailley’s failure to pay the portion of the costs awards that he did not dispute. The court also noted that Mailley had not advanced any argument regarding his impecuniosity, and that the appeal was not precluded by inability to pay.

The Court of Appeal declined the application for review of the Registrar’s decision, and ordered that Mailley must pay security for costs by 2 December 2022. This decision follows previous applications by Mailley for leave and recall, which were also declined by the Supreme Court. The court’s decision reinforces the importance of the protection afforded by security for costs, and the need for respondents to be protected in cases where the appeal has no merit and the applicant has failed to pay the portion of the costs awards that they do not dispute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established