Skagen v Wellington Standards Committee of the New Zealand Law Society
[2021] NZCA 566
•28 October 2021 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA267/2020 [2021] NZCA 566 |
| BETWEEN | CHRISTOPHER KNUTE SKAGEN |
| AND | WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY |
| Hearing: | 16 August 2021 |
Court: | Gilbert, Courtney and Goddard JJ |
Counsel: | Applicant in Person |
Judgment: | 28 October 2021 at 11 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
In 2014 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found Mr Skagen, then practising as a barrister in Wellington, 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]
[1]Wellington Standards Committee of the New Zealand Law Society v Skagen [2014] NZLCDT 82 [Tribunal decision].
[2]Skagen v Wellington Standards Committee of the New Zealand Law Society [2016] NZHC 1772 [Substantive judgment].
Mr Skagen seeks leave to appeal the High Court decision dismissing his appeal and three other related decisions:[3]
(a)Skagen v Wellington Standards Committee of the New Zealand Law Society [2015] NZHC 2634 (the interlocutory judgment);
(b)Skagen v Wellington Standards Committee of the New Zealand Law Society [2016] NZHC 2799 (the first recall judgment); and
(c)Skagen v Wellington Standards Committee of the New Zealand Law Society [2020] NZHC 762 (the second recall judgment).
[3]Lawyers and Conveyancers Act 2006, s 254. An application to this Court for special leave can only be made after leave has been refused by the High Court. Mr Skagen filed his application for leave to appeal against all four judgments within 20 working days of the second recall judgment being delivered. However, the High Court had only declined leave on the substantive judgment. Mr Skagen was directed by this Court to first apply to the High Court for leave to appeal on the other three judgments. His appeal in this Court was held in abeyance pending the outcome of those applications, which were ultimately unsuccessful: Skagen v Wellington Standards Committee of the New Zealand Law Society [2021] NZHC 107.
The application for leave is brought under s 254 of the Lawyers and Conveyancers Act 2006 (the LCA), which provides that:
254 Appeal to Court of Appeal on question of law
(1)Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 56 of the Senior Courts Act 2016 applies to any such appeal.
(2)In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.
(3)The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.
(4)The decision of the Court of Appeal on any appeal under this section is final.
The Judicature Act 1908 applies to this application as the original proceedings before the Tribunal commenced prior to 1 March 2017. This Court set out the approach to an appeal under s 254 (and the Judicature Act) in Hart v Auckland Standards Committee No 1 of the New Zealand Law Society:[4]
[16] The approach taken to leave decisions in Waller v Hider accordingly applies by analogy.[5] As Blanchard J, delivering the decision of the Court, said in that case:[6]
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[4]Hart v Auckland Standards Committee No 1 of the New Zealand Law Society [2013] NZCA 673.
[5]Waller v Hider [1998] 1 NZLR 412 (CA). Waller v Hider arose in the context of s 67 of the Judicature Act 1908.
[6]At 413.
Mr Skagen has identified 18 grounds that would form the basis of his proposed appeal. We consider them in more detail after outlining the background to, and nature of, the charges that were the subject of the proceeding brought by the Wellington Standards Committee of the New Zealand Law Society (the Standards Committee).
The Standards Committee opposes the application for leave to appeal on the basis that:
(a)the issues raised by Mr Skagen are an attempt to relitigate the High Court judgments as if on a general appeal;
(b)the grounds identified either do not raise a question of law at all or do not raise one that would satisfy the statutory threshold; and
(c)despite being technically within time (Mr Skagen’s application for leave being held in abeyance by this Court), the considerable delay in pursuing an appeal against the interlocutory judgment (delivered in October 2015), the substantive judgment (delivered in August 2016) and the first recall judgment (delivered in November 2016) counts against the grant of leave.
Background
Mr Skagen is American by birth. He obtained his law degree in New Zealand. Later he moved to Oregon where he practised. In 2006 Mr Skagen was suspended from practice in Oregon for one year for conduct relating to the maintenance of his trust account. In 2008, Mr Skagen was again suspended from practice for 18 months for mishandling client funds and failing to respond to lawful demands during the investigation. He returned to New Zealand later that year and commenced practice as a barrister in Wellington. However, the Standards Committee, having been advised of the proceedings in Oregon, brought reciprocal disciplinary proceedings based on the Oregon charges, alleging unbecoming conduct in terms of the New Zealand legislation.[7] Mr Skagen was censured and ordered to pay costs of $8,000.
[7]Lawyers and Conveyancers Act, s 12(b)(i).
Mr Skagen made only one payment of $150 to the New Zealand Law Society (the NZLS). In July 2011, as a result of his failure to either pay the outstanding balance or provide adequate financial information to demonstrate his inability to pay it, the NZLS declined to renew his practising certificate. The decision of the NZLS not to renew Mr Skagen’s practising certificate overlapped with the two complaints that eventually led to Mr Skagen being struck off.
Complaint by Mr E
In February 2011 Mr E sought urgent advice from Mr Skagen on family law matters. Mr Skagen told Mr E that he would need to pay a lump sum in advance and engage a solicitor. He forwarded Mr E an invoice for $8,100 and his terms of engagement. Payment for Mr Skagen’s services was to be in two parts, one part immediately and the other within one month. As it turned out, Mr E’s solicitor, Mr Smith (from whom Mr Skagen had previously accepted instructions), could not act because he had already been consulted by Mr E’s wife. There was a dispute over whether Mr Skagen contacted Mr E again. In March 2011 a firm of solicitors contacted Mr Skagen on behalf of Mr E, advising that his retainer was terminated, and requesting both an itemised fee for the work to date and for the $4,100 that Mr E had paid to be refunded. Mr Skagen initially indicated that he was experiencing financial difficulty but would refund the money as soon as he could. After a second request met the same response, Mr E complained to the NZLS. The Standards Committee met on 6 July 2011 and decided to commence an investigation.
Mr Skagen told the Standards Committee that he had tried to arrange meetings with Mr E so that he could be instructed but Mr E did not respond. His position was that Mr E had breached his contractual obligation to arrange an instructing solicitor, indicating that he did not regard the money as repayable. The matter was referred to the Tribunal. In 2013, the Standards Committee brought five charges against Mr Skagen: accepting instructions directly; accepting fees in advance; failing to pay monies received into a trust account; failing to act in a timely or competent manner; and failing to repay monies.[8]
Complaint by Mr W
[8]Substantive judgment, above n 2, at [2].
A few weeks after the Standards Committee met to consider Mr E’s complaint, the NZLS received a complaint from Mr W, who had consulted Mr Skagen on 12 May 2011 about a family law proceeding. Mr W was dissatisfied with his current lawyer and, as there was a call of the matter in the Registrar’s list the following week on 20 May 2011, there was some urgency. Mr Skagen emailed Mr W his terms of engagement and an invoice for $6,900, advising that he would contact Mr Smith with a view to Mr W engaging Mr Smith who would then instruct Mr Skagen.
Mr W paid Mr Skagen $6,900. He engaged Mr Smith, who instructed Mr Skagen. Mr Skagen obtained an adjournment of the call. On 9 June 2011 the Court directed that Mr W file and serve an affidavit dealing with relationship property. On 21 June 2011 Mr Skagen advised Mr W that he would need detailed information for that purpose and also that Mr W would need to provide disclosure. No time frame was given for this work. There was no explanation as to what disclosure would entail.
Mr Skagen’s practising certificate expired at the end of June 2011. He told Mr Smith this was because he was having difficulty finding the fee for renewal of the certificate. Mr Skagen says that he did not know at that stage that his certificate would not be renewed because of the outstanding costs still owing to the Tribunal. Although Mr Skagen had prepared the required affidavit, Mr Smith would not allow it to be filed and required the file to be returned to him. The Court directed that Mr Smith remain on the record until alternative counsel could be instructed; the proceedings were adjourned to a date in August 2011; and a costs order was made against Mr W, which could be recovered from Mr Skagen.
Mr Smith contacted Mr Skagen, who said that he could not pay the costs awarded against Mr W and could not refund Mr W’s $6,900. Mr W complained to the NZLS. The matter was referred to the Standards Committee which brought five charges: accepting fees in advance; failing to pay monies received into a trust account; failing to act in a timely or competent manner; failing to repay monies; or alternatively, charging a grossly excessive fee (this charge was later abandoned).[9]
Other charges
[9]At [2].
The Tribunal appointed an investigator to look into both complaints. Mr Skagen’s interactions with the investigator led to two further charges — failing to permit an investigator to examine accounts and failing to produce records to an investigator.
The Tribunal’s decision
The 12 charges of misconduct were brought against Mr Skagen in 2013. The hearing was scheduled for 28 November 2014. However, during 2014 Mr Skagen was very ill and was hospitalised. He did not appear at the hearing and was not represented. The Tribunal’s decision, delivered on 9 December 2014, was that all the charges were proved and Mr Skagen would be struck off the Roll.[10] He was also ordered to pay costs to the NZLS.[11]
The decisions for which leave to appeal is sought
[10]Tribunal decision, above n 1, at [38].
[11]At [39].
Mr Skagen now applies for leave to appeal against four judgments of the High Court related to these proceedings.
Prior to the substantive hearing of Mr Skagen’s appeal, Collins J determined several interlocutory applications, including Mr Skagen’s application for discovery of correspondence between the NZLS and the Oregon State Bar. The Judge did not consider the documents were relevant to the appeal but did urge NZLS to provide them voluntarily. This is the interlocutory decision that is the subject of the current leave application.[12]
[12]Skagen v Wellington Standards Committee of the New Zealand Law Society [2015] NZHC 2634 [Interlocutory judgment].
In her substantive judgment on the appeal against the Tribunal’s decision, Mallon J quashed the Tribunal’s findings on five of the charges but dismissed the appeal on the other seven charges. She also dismissed the appeal against penalty.[13]
[13]Substantive judgment, above n 2.
Mr Skagen applied for recall of Mallon J’s substantive judgment, asserting that she had failed to deal with five issues. In November 2016, the Judge dismissed that first recall application on the ground that the substantive judgment had dealt with those issues to the extent they were relevant.[14]
[14]Skagen v Wellington Standards Committee of the New Zealand Law Society [2016] NZHC 2799 [First recall judgment].
Mr Skagen did not advance an appeal against the substantive judgment because of his ongoing ill-health. Then, in early 2019 the Oregon State Bar brought reciprocal disciplinary proceedings based on the New Zealand proceedings. There was a hearing before a Trial Panel of the Oregon State Bar. Mr Skagen asserted procedural unfairness by the NZLS. Counsel for the NZLS gave evidence before the Trial Panel. In October 2019 the Trial Panel released its decision, which was to disbar Mr Skagen. On Mr Skagen’s application, the Oregon Supreme Court made an order abating the reciprocal disciplinary proceeding until Mr Skagen applied for leave to appeal the substantive judgment.
In December 2019 Mr Skagen filed applications for further discovery, leave to file further evidence, leave to file a third amended notice of appeal, as well as a second application for recall of the substantive judgment.[15] These applications were all related — they were advanced on the basis that, subsequent to the substantive judgment and the first recall judgment, Mr Skagen had obtained documents that showed the judgments to have been obtained by fraud. During preparation for the Oregon proceedings, Mr Skagen had made a request to the NZLS under the Official Information Act 1982 (the OIA). That request produced two emails and a letter that had been sent by Mr Skagen himself to the Standards Committee’s investigator in the course of the investigations into the complaints by Mr E and Mr W. The NZLS had attached to them documents that, according to Mr Skagen, supported his account of having undertaken a substantial amount of work for Mr W and having communicated with Mr E about engaging an instructing solicitor.
[15]These applications formed the basis of the second recall judgment.
Mr Skagen subsequently lost his computer files. His complaint before Mallon J in the second recall hearing was that evidence given by and on behalf of Mr E and Mr W was perjured and that the Standards Committee prosecutors knew this because they had in their possession the documents that Mr Skagen had lost. Mr Skagen says that the Standards Committee wrongly characterised him as dishonest and disingenuous when it had in its possession documents to the contrary.
On 20 April 2020, Mallon J dismissed the second recall application (and consequently, the applications for discovery, leave to file further evidence and leave to file an amended pleading):[16]
[19] The allegations of dishonesty, perjury and tortious conduct and the like, by those involved in the matters that led to the Tribunal’s findings have no proper basis. They mischaracterise legitimate actions by client E, client W and the Law Society and serve to illustrate that Mr Skagen has not understood or has difficulty accepting the reason why the charges were brought against him and why some of those charges were ultimately upheld by this Court. The arguments based on new evidence arises from the Official Information Act request he made of the Law Society for the purposes of the Oregon proceeding. That evidence could have been obtained if he had made the request in preparation for the Tribunal hearing or the appeal to this Court. His wish to recast his arguments or to put forward further arguments that could have been raised at his first appeal does not provide a very special reason for recall.
(Footnote omitted.)
The proposed grounds of appeal
[16]Skagen v Wellington Standards Committee of the New Zealand Law Society [2020] NZHC 762 [Second recall judgment].
As noted, leave to appeal under s 254 of the LCA can only be granted in respect of questions of law that are of such general or public importance so as to justify a further appeal to this Court. Mr Skagen asserts that this case raises serious questions and/or issues of general or public importance about the role and purpose of a lawyer, the nature and purpose of a lawyer as an officer of the court and the integrity of the body governing lawyers in New Zealand.[17]
[17]This was identified as ground 18 in Mr Skagen’s notice of appeal but is really in the nature of a submission.
Mr Skagen identifies numerous grounds in his amended notice of appeal and his draft fourth amended notice of appeal.[18] Of these, the following are not capable of supporting a grant of leave and we do not consider them in any detail:
[18]These broadly reflect the “defences” identified in the draft fourth amended notice of appeal.
(a)The assertion of “many legal and factual questions that were not adequately dealt with in the High Court, or were entirely ignored”.[19] No specific question of law is identified.
[19]Grounds 2 and 3.
(b)The assertions that: (1) evidence given by the New Zealand lawyers for the NZLS to the Trial Panel of the Oregon State Bar contains interpretations contrary to the law as interpreted by Mallon J, particularly regarding client privilege;[20] and (2) “[t]estimony of disciplinary lawyers is unheard of in any kind of prosecution”.[21] The conduct of the Standards Committee is said to have subverted the principle of res judicata by continuing the proceedings after they had been determined in New Zealand. The present application is concerned with the judgments of the High Court in respect of which leave to appeal is sought. The conduct of the Standards Committee in relation to the Oregon proceedings do not, and cannot, constitute error by the High Court Judge. The evidence given at the Trial Panel’s hearing, which took place two and a half years after the substantive judgment was delivered, is not within the ambit of the appeal for which Mr Skagen seeks leave.
[20]Ground 4.
[21]Ground 13.
(c)Constitutional issues raised in the appeal filed by Mr Skagen in May 2021 in the Supreme Court of the United States against the decision of the Supreme Court of Oregon ought to be considered.[22] We think it self-evident that this ground, which does not specify any error by the High Court and relates to an appeal filed in the United States five years after the substantive judgment was delivered, cannot support the application for leave to appeal against any of the High Court decisions.
[22]Ground 5.
(d)The procedure leading to NZLS’s decision not to renew Mr Skagen’s practising certificate was unfair and the NZLS “unlawfully used a prior costs judgment as a lien over his right to practise law in New Zealand”.[23] These complainants do not arise from any of the judgments that Mr Skagen seeks leave to appeal on.
[23]Ground 6.
(e)Mr Skagen’s right to freedom of expression was violated in breach of s 14 of the New Zealand Bill of Rights Act 1990 (BORA) in punishing him for raising defences and referring to him as dishonest.[24] In the High Court, Mr Skagen asserted two breaches of BORA rights — not being permitted to attend the Tribunal hearing by telephone conference, and not being given the opportunity to be heard by the Tribunal on penalty.[25] There was, however, no complaint of a breach of the right to freedom of speech. Such an assertion cannot now support an application for leave to appeal the High Court decisions.
[24]Ground 11.
[25]Substantive judgment, above n 2, at [87] and [90].
(f)The time that elapsed between the alleged offences in 2011, the investigation and the bringing of the charges in 2013 (a period of two years) was “a violation of the purpose of the new disciplinary procedural regulations”.[26] This was a matter that could have been raised in the High Court but was not. It cannot be raised for the first time now.
[26]Ground 12.
(g)Mr Skagen’s belief that “the investigation, procedure and trial display an ignorance of the fundamental jurisprudence necessary for fairness in disciplinary proceedings” does not contain any detail or particulars to support leave being granted to appeal the High Court decisions.[27]
[27]Ground 14.
(h)A number of grounds of appeal that appear in the draft fourth amended notice of appeal (but do not appear in the amended notice of application for leave) which relate to conduct that was the subject of charges two, three, six, seven and 12 (accepting fees in advance, failing to pay monies received into a trust account and failing to produce records to the investigator).[28] These cannot be the subject of an appeal because those charges were quashed in the High Court.[29]
[28]This ground was encapsulated in defences 11, 12 and 13 of the fourth amended notice of appeal.
[29]Substantive judgment, above n 2, at [98].
The remaining grounds can be fairly summarised as follows:[30]
[30]We set out the grounds in a different order to that used in Mr Skagen’s amended notice of application for leave to appeal.
(i)The judgment was procured by fraud as a result of perjury. This ground depends on the further evidence obtained by Mr Skagen under the OIA. Relatedly, it is asserted that the NZLS was aware when it prosecuted the charges that Mr Skagen did not have access to the further evidence.[31]
(j)Perjured evidence was used to cast Mr Skagen as dishonest, resulting in findings of dishonesty, even though he was not charged with any dishonesty offending.[32]
(k)Mallon J erred in finding that Mr Skagen could have discovered the evidence showing the perjury before the Tribunal hearing.[33]
(l)The NZLS was not entitled to demand production of Mr Skagen’s bank statements relating to Mr Skagen’s clients, except for those relating to Mr E and Mr W.[34] There was therefore no basis for charge 12 (failing to produce records to an investigator). Despite charge 12 being quashed by the High Court, we treat this ground as an assertion of error by the Judge in finding that the bank statements were not privileged.[35]
(m)Mr Skagen’s refusal to produce client records other than those relating to Mr E and Mr W when requested by the investigator was made in good faith to protect his clients’ interest and was caused by his “ideas of a free and democratic jurisprudence [from his experience practising in the United States] … [which] caused him to overstep his place in New Zealand”.[36]
(n)Mr Skagen had a defence to the charges relating to the money paid by Mr E, namely that Mr E himself was in breach of his contract with Mr Skagen.[37] We note that the draft fourth amended notice of appeal relatedly asserts that the disciplinary process was used to circumvent Mr Skagen’s contractual rights in respect of Mr E.[38] We treat this ground as an assertion that the Judge erred in rejecting this argument.
(o)The evidence and law did not support charge one (breach of r 14.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) — accepting instructions directly from Mr E) or charges four and eight (failing to act in a competent and timely manner).[39]
(p)There were breaches of natural justice by the Tribunal, which we treat as a question of whether the Judge erred in finding that there was no breach of natural justice by the Tribunal.[40]
[31]Grounds 1 and 16.
[32]Ground 7.
[33]Ground 8.
[34]Ground 9.
[35]Substantive judgment, above n 2, at [82].
[36]Ground 15 and defences 5, 16 and 18 in the draft fourth amended notice of appeal.
[37]Ground 10.
[38]Defences 7 and 8 in the draft fourth amended notice of appeal.
[39]Defences 10 and 14 in the draft fourth amended notice of appeal.
[40]Ground 17.
Finally, it is clear that no basis exists for an appeal against either the interlocutory decision or the first recall decision. The former was decided mainly in Mr Skagen’s favour and had no identifiable influence on the outcome of the substantive judgment. As to the latter, the application was brought on the basis that the Judge failed to deal with some of Mr Skagen’s arguments, which is plainly not the case. We therefore proceed to consider the application for leave to appeal only against the substantive and second recall judgments on the grounds identified in (i) to (p) above.
Application for leave
Perjury/judgment obtained by fraud: grounds (i)–(k)
As noted, Mr Skagen says that the two emails and letter he obtained under the OIA request in preparation for the Oregon proceedings show that:[41]
(a)contrary to the Standards Committee’s assertion, Mr Skagen had communicated with Mr E about engaging an instructing solicitor and had undertaken extensive work for Mr W;
(b)those facts were known to the Standards Committee from the two emails and letter which were received during its investigation; and
(c)the Standards Committee knew that Mr Skagen did not have the emails and letter himself because he had not produced them during the discovery process (though the Standards Committee could not have known that the documents had been lost from Mr Skagen’s computer at the time).
[41]These documents were not before us at the hearing, having only been filed in the High Court in relation to the second recall application. However, it was agreed that Mr Skagen would provide them to us following the hearing, which he did.
Mr Skagen’s submissions on these grounds essentially repeats the substance of his argument in the High Court — that the documents obtained under the OIA request showed the substantive judgment had been obtained through fraud.[42] He has not identified a particular error of law by Mallon J that might form the basis of leave to appeal, as required by s 254(1). We therefore approach this aspect of the application by considering whether Mr Skagen’s argument shows any error of law of sufficient general or public importance that would otherwise justify leave being given.
[42]Mr Skagen also says that the emails and letter evidence violations of his right to due process in relation to the renewal of his practising certificate and of an “unlawful lien” imposed by the NZLS on his right to practice law. As already noted at [26(d)] above, these matters cannot form a basis for the grant of leave.
The Judge undertook her consideration of the second recall application by reference to the recognised legal test articulated in Horowhenua County v Nash (No 2), focussing on the only possibly available limb, namely whether “some other very special reason” existed which would justify recall.[43]
[43]Second recall judgment, above n 16, at [18]; citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
Mr Skagen’s argument for recall depended on the documents he obtained under the OIA request. There is no obvious error in the Judge’s view that these documents could have been obtained prior to the Tribunal hearing and, before us, Mr Skagen did not suggest otherwise.[44] In any event, this aspect of the Judge’s decision was a finding of fact and not amenable to appeal under s 254.
[44]At [19].
Even if the documents were taken into account, the threshold would not be met by any stretch. The only document of any substance was one of the emails (this one relating to Mr W), which included several attachments. The attachments included a two-page draft affidavit of Mr W addressing property matters. There were also brief memoranda as to change of representation and a memorandum advising the Court that he had assumed conduct of the matter but was unavailable to attend a hearing as he was about to go overseas. These documents would not have assisted in defending the charge of failing to act in a timely or competent manner, including failing to advise Mr W of what was required regarding discovery, failing to advise that he no longer held a practising certificate and failing to arrange alternative representation.
We accept that the documents attached to the emails show that Mr Skagen provided copies of the computer files relating to Mr W and Mr E to the investigator, but there is no basis on which to conclude that those files showed that either witness perjured themselves or that there was dishonesty in the conduct of the prosecution. We cannot see any arguable error by the Judge that satisfies the requirements of s 254.
Mr Skagen’s claim to privilege over bank statements and client records: grounds (l) and (m)
This issue relates to the charges arising from the investigator’s complaint that Mr Skagen refused to produce his bank statements and client records when required pursuant to s 147 of the LCA, which was the subject of charge 11 (related only to the bank statements).[45]
[45]Mr Skagen sought to raise the argument regarding privilege in relation to charge 12 as well (failing to provide invoices for amounts shown in the bank statements), but since charge 12 was quashed in the substantive judgment, there is no issue in relation to it that can be the subject of an appeal to this Court.
In the High Court, Mr Skagen maintained that the investigator’s powers extended only to trust accounts rather than a practitioner’s personal account and that the investigator required a warrant to obtain records from his bank.[46] He also asserted that producing the bank statements would breach the legal professional privilege of clients other than Mr E and Mr W.[47] The Judge analysed the powers conferred on the investigator by the LCA. She did not accept the argument that the power was limited to trust accounts.[48] She found that there was no evidence to support the assertion that the references in the bank statements to clients other than Mr E and Mr W meant that the documents were privileged.[49]
[46]Substantive judgment, above n 2, at [77] and [79].
[47]At [82].
[48]At [78].
[49]At [82] and [83].
Mr Skagen’s submissions on grounds (l) and (m) appear to reiterate the position taken in the High Court, being that the bank statements were privileged and the Standards Committee required a warrant to obtain them. However, Mr Skagen has not identified any specific error in the Judge’s analysis rejecting these arguments. We cannot see any obvious error. The assertion in his amended notice on appeal that his experience of practice in the United States caused him to “overstep his place in New Zealand” is not a question of law. Neither of these grounds meet the threshold for leave in s 254 of the LCA.
Mr Skagen’s contractual rights as a defence to the charges relating to Mr E: ground (n)
Mr Skagen’s conduct in initially accepting that he would repay Mr E but failing to do so gave rise to charge 5 — a breach of r 3 of the Rules, which requires that a lawyer must act competently and in a timely manner consistent with the terms of the retainer and the duty to take reasonable care. Before the Tribunal, Mr Skagen had argued that he was not required to repay the money because Mr E himself had breached the contract (by failing to arrange an instructing solicitor). The Tribunal described this position as disingenuous and dishonest.[50] The Judge recorded Mr Skagen’s submission as being that the Tribunal had failed to consider r 4.3 which provides that a client has the right to terminate a retainer “subject only to compliance with any agreed terms in the retainer”.[51] She held that this provision did not assist Mr Skagen.[52] Because Mr E’s instructions were conditional upon his solicitor instructing Mr Skagen which did not happen, Mr Skagen did not become entitled to any reimbursement for services provided prior to the termination of the retainer. Nor was Mr E under any contractual obligation to arrange an instructing solicitor. The Judge held that under the terms of the original contract it was Mr Skagen who identified the solicitor who was to instruct him and who was required to make that arrangement. There was no breach of the retainer by Mr E and no loss sustained by Mr Skagen as a result.[53]
[50]Substantive judgment, above n 2, at [47]; referring to Tribunal decision, above n 1, at [18].
[51]At [48].
[52]At [49].
[53]At [49].
Mr Skagen’s amended notice of appeal and his submissions do no more than reiterate the argument advanced in both the Tribunal and the High Court. That argument clearly turned on the content of the terms of engagement the parties had agreed on. There is no assertion of error by the Judge and no error is apparent.
We note that, in the draft fourth amended notice of appeal, an argument is raised that the contractual issues should have been determined between the parties in civil proceedings prior to any disciplinary proceedings being brought, it being said that the complaints by Mr E and Mr W were made for the purpose of preventing contract claims being brought against them. Not only was this argument not raised in the High Court, it could not have succeeded. The Tribunal’s statutory jurisdiction exists for the protection of clients and the regulation of legal practitioners.[54] It is not constrained by other rights that might exist between the parties. If such rights affect the obligations of the practitioner or the client they ought to be taken into account. But there is no basis on which Mr Skagen could reasonably argue that he had contractual entitlements that relieved him of his professional obligations under the Rules.
A general complaint: ground (o)
[54]See Lawyers and Conveyancers Act, ss 3, 226 and 227.
Mr Skagen also made a general assertion that the evidence and law did not support charge one (breach of r 14.4 — accepting instructions directly from Mr E) or charges four and eight (breach of r 3 — failing to act in a competent and timely manner in relation to Mr E and Mr W). However, no specific errors have been identified and none are apparent from the substantive judgment.
Conclusion
Mr Skagen seeks to relitigate the arguments that were considered and rejected in the High Court substantive judgment and second recall judgment. He has not identified any specific error of law and we cannot see any obvious error of law in either judgment. In these circumstances, none of the grounds advanced meet the threshold for leave in s 254 of the LCA.
Result
The application for leave to appeal is declined.
Solicitors:
WynnWilliams, Christchurch for Respondent
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