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Mailley v Legal Complaints Review Officer [2019] NZHC 1608 (10 July 2019)

Last Updated: 17 July 2019

JUDGMENT OF CLARK J

Introduction

[1] In a judgment delivered on 18 December 2018 I granted the second respondent’s interlocutory application to stay Mr Mailley’s judicial review proceeding. I also awarded to the second respondent scale costs calculated on a 1A basis.¹

¹ Mailley v Legal Complaints Review Officer [2018] NZHC 3363 [Stay decision].

MAILLEY v LEGAL COMPLAINTS REVIEW OFFICER [2019] NZHC 1608 [10 July 2019]

[2] On 4 February 2019, Mr Mailley applied for an order staying the costs award pending determination of his appeal. For reasons set out in my judgment of 12 February 2019 I dismissed Mr Mailley’s application.²

[3] On 19 February 2019 Mr Mailley filed an application for leave to appeal the Stay decision out of time. That application is opposed, as is Mr Mailley’s application for leave to appeal.

[4] In the remainder of this judgment I explain why I have granted Mr Mailley’s application to extend the time within which to appeal but dismissed his application for leave to appeal.

Application to extend time

[5] By s 56(3) of the Senior Courts Act 2016 an appeal against a decision of the High Court made on an interlocutory application requires leave to be given by the High Court. The application for leave is to be made within 20 working days after the date of the decision appealed. In this case the application would have had to be filed by 8 February 2019.³

[6] Mr Mailley filed his application on 19 February 2019. Initially, Mr Mailley wished to have his application heard and not determined on the papers, but on 26 March Mr Mailley confirmed he was content for his application for leave to be determined on the papers. A case management conference scheduled for 1 April 2019 was vacated on 28 March 2019 with the consent of the parties.

[7] The Court may extend the time to file an appeal if the statute conferring the appeal right permits an extension to be granted. Section 56(3) of the Senior Courts Act requires an interlocutory application for leave to appeal to be made within 20 working days after the date of the decision “or within any further time that the High Court may allow” thus contemplating extensions of time.

² Mailley v Legal Complaints Review Officer [2018] NZHC 132.

³ In accordance with the definition of “Working day” in s 4(1) of the Senior Courts Act 2016.

[8] Mr Mailley’s application is entitled “notice of application for leave to appeal out of time”. In the first of its 17 paragraphs Mr Mailley states that his application for leave to appeal out of time is grounded in the fact he mistakenly filed in the Court of Appeal. The remainder of that document states the grounds for the substantive application, that is, the application for leave to appeal.

[9] I propose to grant Mr Mailley’s application to extend the time within which to appeal. His failure to file in the correct court is a technical default. The second respondent points out Mr Mailley appreciated his error around 17 January 2019 yet did not file his application in the High Court until 18 February and has offered no explanation for the additional delay. Nevertheless, the second respondent takes a neutral stance to the enlargement of time and abides the decision of the Court. Accordingly, Mr Mailley’s application to extend the time within which to file his application for leave to appeal is granted.

[10] That brings me to a consideration of the substantive application for leave to appeal.

Application for leave to appeal

The Stay decision

[11] In the Stay decision I considered the two proceedings Mr Mailley had on foot:⁴

(a) Mr Mailley’s civil claim for refund of monies paid to his counsel and for damages (CIV-2015-1185); and

(b) Mr Mailley’s application to judicially review the Legal Complaints Review Officer in respect of his allegedly deficient investigation into Mr Mailley’s complaints against his former counsel (CIV-2018-134).

[12] I held that, albeit differently articulated, what Mr Mailley seeks in CIV-2018- 134 is what he seeks in CIV-2015-1185:

⁴ Stay decision, above n 1, at [8]–[13].

[13] ... The application for judicial review of the LCRO, in substance and effect, is to require the LCRO to investigate the very matters which Mr Mailley has put before the High Court in CIV-2015-1185. Yet Mr Mailley appears to have walked away from CIV-2015-1185 without taking steps towards its resolution or discontinuing it. If CIV-2015-1185 is determined in Mr Mailley’s favour, he would achieve what he seeks by that proceeding namely, a review of counsels’ conduct and costs charges. If Mr Mailley is unsuccessful there is no utility in this Court ordering the LCRO to review the Standards Committees’ determinations of Mr Mailley’s complaints. ...

[14] I am satisfied that the manner by which Mr Mailley seeks to engage the judicial processes results in such unfairness to Mr Shaw that CIV-2018- 134 should be stayed as an abuse of process. Mr Geiringer makes a fair point. Having effectively “defended” himself before the Standards Committees, and engaged in CIV-2015-1185 by filing a statement of defence, an interlocutory application, successive memoranda of counsel, and attended case management conferences, Mr Shaw should not now have to give answer to the complaints before the High Court arising out of the application for judicial review when Mr Mailley has neither discontinued nor sought to resolve his 2015 proceedings.

[13] I also ordered that Mr Mailley must pay security for costs if CIV-2018-404-
134 is to proceed. A third issue concerned Mr Mailley being represented by Mr Minchin and I determined that the threshold for debarment was reached.⁵

[14] In his detailed and particularised application for leave to appeal Mr Mailley contends there are errors of fact and law. To avoid misrepresenting Mr Mailley’s grounds I have not attempted to group or summarise them. I set out each of his grounds although in an abbreviated form.

(a) The Stay decision was ultra-vires s 201(7) Lawyers and Conveyancers Act 2006 which contemplates parallel Legal Complaints Review Office (LCRO) and civil proceedings which have commonality.

(b) The Judge erred:

(i) in finding that a public law remedy in judicial review was ousted by a commonality with civil proceedings;

(ii) in not considering whether the application for judicial review could be swiftly determined by invoking the Courts “inherent

⁵ At [38] and [55].

powers of certiorari”;

(iii) by not considering the proper manner to resolve the difficulty of tandem proceedings was to indicate that the shorter judicial review proceedings took priority;

(iv) in effectively giving priority to the civil proceedings when the LCRO proceedings predated civil proceedings;

(v) in finding the appellant was on notice of the issues around the power of attorney;

(vi) in failing to consider whether the time the LCRO gave the appellant to respond to the issue it raised in regard to the power of attorney was adequate in the circumstances;

(vii) in finding there was no jurisdiction for the LCRO or court to countenance “restarting the Reviews” because of s 198 of the Lawyers and Conveyancers Act;

(viii) by setting the wrong standard for the errors in the power of attorney;

(ix) by finding the appellant did not raise the LCRO proceeding with the LCRO personally;

(x) in finding the delay did not breach any legitimate expectation when the appellant’s submission had been that given the delay, more time should have been afforded to address the situation in regard to the power of attorney;

(xi) in finding that impecuniosity was ousted by lack of diligence on the appellant’s part;

(xii) in debarring Mr Minchin from acting “without giving reasons
as to how any lack of independence would sound in a judicial review matter in which [the second respondent] played no direct part”;

(xiii) by barring Mr Minchin but not appointing an amicus.

[15] The second respondent has filed a detailed notice of opposition in which each of Mr Mailley’s grounds is met with a response. I do not propose to set them out but will return to the respondent’s specific arguments in my analysis.

Principles applicable to applications for leave

[16] In two relatively recent decisions the Court of Appeal addressed the  s 56  requirement for leave.⁶

[17] In Ngāi Te Hapu the Court of Appeal declined to provide definitive guidance as to the principles to be applied because that particular case was not the occasion for doing so. In both decisions the Court of Appeal referred to Finewood Upholstery Ltd v Vaughan (possibly the first decision under the newly enacted  s 56  appeal provision), noting Fitzgerald J’s observation that the requirement for leave to appeal serves as a “filtering mechanism” to ensure unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.⁷

[18] The Court of Appeal also referred to the observations of Dobson J in A v Minister of Internal Affairs:⁸

(a) A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error.

(b) Leave should only be granted where the circumstances warrant incurring further delay.

⁶ Ngāi Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 [Ngāi Te Hapu]; and

Fairway Holdings Ltd v McCullagh [2018] NZCA 605.

7. Ngai Te Hapu, above n 6, at [12] citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

⁸ A v Minister of Internal Affairs [2017] NZHC 887.

(c) The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.

[19] Drawing together the threads from the Court of Appeal decisions and the High Court authorities to which they refer:

(a) Leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.⁹

(b) The object of regulating the volume of non-substantive appeals does not, however, preclude the grant of leave where the interests of justice warrant further consideration by the Court of Appeal.¹⁰ Guidance on the relevant principles might be drawn from former s 71A of the District Courts Act 1947:¹¹

The purpose of [leave] is to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the High Court, while preserving the integrity of the law and the interests of justice.

(c) The principles applicable to applications for leave to appeal under s 56 of the Senior Courts Act have been compared to the threshold for leave to appeal under s 24G of the former Judicature Act 1908.¹² The principles relevant to appeals under s 24G may be summarised as follows:¹³

(i) A party seeking leave has a high threshold to cross.

(ii) That an appeal is by leave, not right, is to secure the expeditious completion of the interlocutory stages of a case and minimise

⁹ Ngāi Te Hapu, above n 6, at [17].

¹⁰ Fairway Holdings Ltd, above n 6, at [14].

¹¹ At [14] citing Somers J in Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.

¹² See the discussion in Ngāi Te Hapu, above n 6, at [15]–[17].

13. See Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526, confirmed in Clear Communications Ltd v Attorney-General (1998) 12 PRNZ 287 (CA).

delays in its ultimate disposition.

(iii) Leave will be granted only where the particular circumstances clearly warrant the further delay that will be incurred.

(iv) While the circumstances cannot be categorised, generally speaking error of fact or law is not enough. “... the case must be such as to create if not injustice at least real detriment ... if not corrected; or it may be as to an important question of law; or it may touch upon a matter of general or public importance.”

Decision

[20] I have concluded the application for leave to appeal falls short of the high threshold to be met by the applicant. The primary reason is that all of the points which Mr Mailley raises in support of his application for leave to appeal are able to be pursued in one or the other of his two civil proceedings both of which are extant. CIV- 2018-34 is stayed because I determined “the manner by which Mr Mailley seeks to engage the judicial processes results in such unfairness to Mr Shaw that CIV-2018- 404-134 should be stayed as an abuse of process”.¹⁴ But of course CIV-2018-134 is only stayed until final disposition of CIV-2015-1185. It is within Mr Mailley’s power to either prosecute that proceeding or discontinue it.

[21] It seems to me from Mr Mailley’s very detailed submissions taking issue with particular factual detail¹⁵ that Mr Mailley regards the Stay decision as having the effect of striking out his application for judicial review. That proceeding was not struck out. Mr Mailley is free to continue his application for judicial review if he discontinues his earlier claim and seeks instead to resolve his issues via the judicial review proceeding. The Stay decision simply prevents Mr Mailley from pursuing his new action while leaving unresolved the existing action with its overlapping claims. Furthermore,

¹⁴ Stay decision, above n 1, at [14].

¹⁵ For example the fact there is said to be email evidence of an agreement between the second respondent and Mr Mailley’s partner to cap fees and details relating to preparation of an application for habeas corpus and charge out rates by senior counsel.

having prosecuted one or other of his civil proceedings Mr Mailley will be free to appeal the result should it be adverse to him.

[22] The present proposed appeal continues to delay the ultimate disposition of Mr Mailley’s claims including for the second respondent. Nothing has been advanced by Mr Mailley to warrant incurring the further delay the appeal would involve and the errors of fact or law which Mr Mailley raises are not such that an injustice or “real detriment” is created if they are not corrected. None of the grounds raise important questions of law or touch upon matters of general or public importance.

[23] Before concluding I address two of the specific grounds for appeal. In ground 16 Mr Mailley states:

The learned High Court Judge erred in finding at [55] of [the Stay decision] that Mr Minchin be barred from acting in these proceedings without giving reasons as to how any lack of independence would sound in a judicial review matter in which Mr Shaw played no direct part, there are no matters of fact in issue and the submissions would be purely legal.

[24] I had said:

[51] Without doubt Mr Minchin’s memorandum of 10 April 2018 breaches rule 13.5.4 of the Lawyers: Conduct and Client Care Rules. In his memorandum Mr Minchin expresses a clear view to the Court on a material issue in Mr Mailley’s case (the issue of alleged overcharging) in terms that convey Mr Minchin’s personal opinion on the merits of that issue. Such content is unhelpful to the Court when it is unsupported and comprises evidence from the bar. I observe, however, that an affidavit filed by Mr Shaw contains evidence that is inadmissible. The point is that counsel frequently place before the Court documents containing inadmissible, or objectionable, or impermissible content.

[52] The real question is whether Mr Minchin is able to remain independent in the discharge of his duties to his client and the Court. I consider there is a real risk of a perception that Mr Minchin may not be freed of interests and influences which would be in conflict with, and compromise, the independence with which he is required to represent Mr Mailley.

[25] Mr Mailley’s point is met, I think, by the observation in the second respondent’s notice of opposition that “the requirement of counsel independence and objectivity exists in all cases irrespective of the nature of the case being present”.
[26] The last ground I wish to address specifically is ground 17. Mr Mailley argues that, having come to the view that Mr Minchin should not be acting, the proper course was to adjourn the matter and appoint an amicus to represent Mr Mailley.

[27] There was no obligation to appoint an amicus for Mr Mailley, particularly in the context of my decision which stayed a proceeding and observed a second proceeding had not been prosecuted. In any event the legitimacy or need for the appointment of an amicus is something that can be raised if one or other of the two civil proceedings proceeds. It is not a point of such significance that alone, or together with the other grounds for appeal, it reaches the threshold of importance or the interests of justice.

Result

[28] For the foregoing reasons:

(a) the application to extend the time within which to appeal is granted;

(b) the application for leave to appeal is dismissed.

[29] The second respondent has successfully opposed the substantive application and is therefore entitled to scale costs calculated on a 1A basis.








Karen Clark J

Solicitors:

Thomas & Co, New Lynn West, Auckland for Applicant Ord Legal, Wellington for Second Respondent