Skagen v Wellington Standards Committee of the New Zealand Law Society

[2022] NZCA 203

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA267/2020
 [2022] NZCA 203

BETWEEN	CHRISTOPHER KNUTE SKAGEN Appellant
AND	WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY Respondent

Court:	Gilbert, Courtney and Goddard JJ
Counsel:	Appellant in Person JLS Shaw and T J McGuigan for Respondent
Judgment: (On the papers)	24 May 2022 at 10 am

JUDGMENT OF THE COURT
[Application for Recall]

AThe application for recall of this Court’s judgment delivered on 28 October 2021 is declined.

B        We make no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

1. In 2014 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal found Mr Skagen guilty of misconduct and made an order striking him from the Roll of Barristers and Solicitors of New Zealand.[1]  Mallon J dismissed Mr Skagen’s appeal against the order striking him off.[2]  This Court declined Mr Skagen’s application for leave to appeal the substantive decision in the High Court and three other related decisions.[3]

   [1]Wellington Standards Committee of the New Zealand Law Society v Skagen [2014] NZLCDT 82.

   [2]Skagen v Wellington Standards Committee of the New Zealand Law Society [2016] NZHC 1772..

   [3]      Skagen v Wellington Standards Committee of the New Zealand Law Society [2021] NZCA 566

2. Mr Skagen subsequently filed a document entitled “Request for Reconsideration” in which he requested a “review of the judgment issued on 1 August 2016” — the substantive judgment in the High Court.  We treat the request as an application to recall this Court’s decision.

3. The application is opposed.

4. The jurisdiction to recall a judgment arises under r 8A of the Court of Appeal (Civil) Rules 2005.  The Court may recall or reopen a judgment at any time before a formal record of it is drawn up and sealed.  The respondent’s opposition proceeds on the basis that the Court’s judgment may not have been sealed, notwithstanding that a notice of result issued on 29 October 2021 contained the Court’s seal.  There is some uncertainty about whether that is sufficient to have perfected the judgment for the purposes of r 51.[4]  For reasons we come to, we are satisfied that the prerequisites for recall are not met in this case and therefore we do not need to consider this issue.

   [4]Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [12]–[18].

5. As Mr Skagen acknowledges in his submissions, generally a judgment, once delivered, must stand for better or worse, subject to appeal.[5]  A decision will only be recalled in exceptional circumstances.  A recall application cannot be used to relitigate reasons provided in a leave judgment.[6]

   [5]S (SC39/2017) v R [2022] NZSC 7 at [3], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, and Craig v Williams [2019] NZSC 60 at [10].

   [6]S v R at [3]; and Nuku v District Court at Auckland [2018] NZSC 39 at [2].

6. It is plain from Mr Skagen’s memoranda filed in support of his application and submissions that he essentially seeks the opportunity to relitigate the matters raised and rejected in the High Court and which this Court considered did not justify leave being given to appeal.  In his application for leave to appeal Mr Skagen advanced a number of proposed grounds of appeal.  They can be broadly summarised as being:

   (a)the Tribunal’s judgment was procured by fraud through perjured evidence;

   (b)Mr Skagen was entitled to claim privilege in respect of documents that he was required to produce during the NZLS investigation;

   (c)Mr Skagen’s own claim to breach of contract against a client who had complained about him to the NZLS constituted a defence to the charges against him in respect of that client;

   (d)there was an inadequate evidential basis to support some of the charges; and

   (e)breaches of natural justice by the Tribunal.

7. In the present application Mr Skagen asserts that there is new evidence that justifies the judgment being recalled.  In fact, the evidence Mr Skagen refers to is not new.  It was considered in the application for leave to appeal.[7]

   [7]Leave judgment, above n 3, at [32]–[33].

8. Mr Skagen raises the same arguments relating to fraud and privilege that were considered in both the High Court and this Court in the application for leave to appeal.  The arguments are advanced in the same form, raising issues that have already been rejected as justifying leave to appeal.

9. Mr Skagen does seek to rely on a new argument relating to the interpretation of the trust account rules under which the charges against him were brought.  However, an application for recall is not appropriate where a legal argument was available and could have been raised at an earlier time.

10. Mr Skagen raises unspecified “claims and defences” in relation to claims by and against his former clients.  Mr Skagen raised these claims previously and they were dealt with.[8]  To the extent that there might be other claims not previously raised, the judgment cannot be recalled on that basis.

    [8]Leave judgment, above n 3, at [37]–[39].

11. Finally, Mr Skagen raises procedural unfairness as a ground, asserting that he was given inadequate notice of the hearing that led to his practising certificate not being renewed.  This is a matter that was raised and dealt with in the application for leave to appeal.[9]  There is no basis on which it could justify a recall of the decision.

    [9]At [26(d)].

12. Mr Skagen’s effort to recall the judgment seeks to relitigate arguments raised and dealt with.  The application for recall is declined.

13. There was no application for costs and we therefore make no order as to costs.

Solicitors:
Wynn Williams, Christchurch for Respondent

       [Leave judgment].