Skagen v Wellington Standards Committee of the New Zealand Law Society
[2020] NZHC 762
•20 April 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2015-485-61
[2020] NZHC 762
UNDER the Lawyers and Conveyancers Act 2006 IN THE MATTER OF
discipline under the Lawyers and Conveyancers Disciplinary Tribunal
BETWEEN
CHRISTOPHER KNUTE SKAGEN
Appellant
AND
WELLINGTON STANDARDS
COMMITTEE OF THE NEW ZEALAND LAW SOCIETY
Respondent
Hearing: 11 March 2020 Appearances:
Mr Skagen appearing in person
J L S Shaw for Respondent (by AVL)
Judgment:
20 April 2020
JUDGMENT OF MALLON J
Background
[1] Mr Skagen has practised law in New Zealand and in Oregon in the United States. In 2014 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found Mr Skagen guilty of misconduct on 12 charges relating to conduct in 2011 concerning two clients (client E and client W) when Mr Skagen was practising as a barrister in this country. The Tribunal made an order striking him from the Roll of Barristers and Solicitors of New Zealand.
[2] Mr Skagen appealed the Tribunal’s decision. In August 2016 I allowed Mr Skagen’s appeal to the extent that the Tribunal’s findings on five of the charges
SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2020] NZHC 762 [20 April 2020]
were quashed.1 The appeal on the other seven charges was dismissed. The appeal against penalty was also dismissed.
[3] Mr Skagen applied for recall of my judgment. Mr Skagen contended that my judgment had failed to deal with five issues. In November 2016 I dismissed the application.2 I did so because my judgment had in fact dealt with these issues to the extent they were relevant. The grounds for recall were therefore not made out.
[4] The Oregon State Bar brought a reciprocal disciplinary proceeding seeking an order disbarring Mr Skagen in Oregon. A hearing took place before a Trial Panel of the Oregon State Bar on in January 2019. Counsel for the respondent gave evidence at this hearing. In October 2019 the Trial Panel issued an opinion disbarring Mr Skagen.
[5] In November 2019 the Oregon Supreme Court granted Mr Skagen’s motion to abate the reciprocal disciplinary proceeding.3 The abatement applies until such time as the New Zealand judgment is confirmed as a final judgment, following resolution of Mr Skagen’s motion for special leave in the High Court and his motion for an untimely appeal in the Court of Appeal.
[6] In December 2019 Mr Skagen filed a “notice of interlocutory applications”. The orders sought were:
1.Special leave HR 20.3(5)(b) and HR 20.3(8); HR 7.81 interim relief of recall; recall judgment; allow a new hearing.
2.Application for further discovery/filing of evidence.
3.Application to file third amended notice of appeal.
[7] A first call of Mr Skagen’s interlocutory applications took place in the High Court in February 2020 before Grice J. Mr Skagen filed a memorandum for this hearing seeking that his applications be heard in person rather than on the papers. His
1 Skagen v Wellington Standards Committee of the New Zealand Law Society [2015] NZHC 1772.
2 Skagen v Wellington Standards Committee of the New Zealand Law Society [2015] NZHC 2799.
3 This order purports to be signed by the Chief Justice of the Supreme Court on 2 November 2020 at 11.47am. However, it refers to an upcoming hearing that had been scheduled for 10 March 2020. I have assumed, therefore, that the order was obtained in November 2019.
memorandum annexed a thick bundle of documents from the Oregon proceeding. The Judge directed a hearing before me on Mr Skagen’s interlocutory applications.
The recall application
[8] Mr Skagen submits my judgment should be recalled on the ground that he has new evidence which shows the evidence of the prosecution was perjured and the judgment was obtained by fraud. He relies on what he describes as “three important items of evidence”, which are as follows:
(a)evidence of dishonest conduct by the prosecution relating to evidence of extensive work Mr Skagen had carried out for client W and evidence that Mr Skagen had communicated with client E about the need to locate an instructing solicitor;
(b)evidence of violation of his right to due process in his attempts to renew his practising certificate; and
(c)evidence that the Law Society placed an unlawful lien on his right to practice law.
[9] Mr Skagen submits the Law Society used false evidence to characterise him as dishonest and disingenuous, causing the trier of fact to ignore his legal arguments. He contends that for the Oregon hearing he discovered an email that he had sent to the Law Society which contained exculpatory evidence. He discovered this email because he had made an Official Information Act request of the Law Society.
[10] Mr Skagen submits the High Court judgment was in error because of the perjury of client E and client W, and that the prosecuting counsel, his law firm and the respondent knowingly assisted this. He says significant evidence was deliberately omitted in the affidavits of other witnesses. He says the facts of this case have always been in dispute and now he is able to support his legal argument with facts.
[11] Mr Skagen says he did not appeal the High Court judgment because of the stress of continued legal proceedings which could have aggravated his medical condition and killed him.
The discovery application
[12] Mr Skagen requests that this Court order the production of new evidence and that witnesses subject themselves to cross-examination. He says his affidavit provides proof of fraud and perjury by the prosecution. He says discovery is necessary for an assessment of damages, as well as for disciplinary and criminal complaints against the participants where necessary. Discovery will also allow this Court to have a broader understanding of the issues and how they were previously addressed by this Court in a vacuum.
The third amended notice of appeal
[13] Mr Skagen has filed a “third amended notice of appeal” from the Tribunal’s decision. This document begins by purporting to recount the background to the charges relating to client E and client W. It includes allegations that:
(a)client E committed the tort of interference with contractual relations by hiring a different lawyer and demanding the return of his fee, and filed a complaint against Mr Skagen to remove attention from his tortious conduct;
(b)client W perjured himself about the work Mr Skagen had carried out on an affidavit, and the prosecutor and investigator assisted with this perjury; and
(c)Mr Skagen’s instructing solicitor perjured himself in an affidavit.
[14] The document states that, after the High Court judgment declining Mr Skagen’s first application for recall, Mr Skagen “decided that to further appeal the High Court proceedings could kill him” because of his health issues. It states that, after being served with the reciprocal proceeding, Mr Skagen obtained documents
from the Law Society that he did not have for the High Court appeal via an Official Information Act request.
[15] The document sets out the ground of appeal as being that the Tribunal failed to correctly apply the law and facts in reaching its decision on the charge. It goes on to provide specifics. The main points can be summarised as follows:
(a)the evidence and law did not support the findings on charges or the Tribunal misinterpreted the law or failed to apply proper legal reasoning to a factual analysis or acted without regard to a proper factual analysis (charges 1, 2, 3, 6 and 7);
(b)Mr Skagen did not have an instructing solicitor because of the actions of client E and his new lawyer (charges 4 and 8);
(c)the respondent’s improper actions concerning the renewal of his practising certificate caused Mr Skagen’s problem with client W (charge 8);
(d)Mr Skagen’s failure to repay client monies was a matter of contract law rather than a disciplinary process (charges 5 and 9);
(e)Mr Skagen had the defence of privilege, the privilege against self- incrimination, and privacy in refusing to permit the investigator to examine accounts and to produce records (charge 11 and 12); and
(f)the respondent breached the rules of natural justice.
[16] The document goes on to make “counterclaims” under the Bill of Rights Act 1990 for breach of contract and interference with contractual relations, and for fraud, abuse of process and misfeasance in public office. Mr Skagen claims general damages of $8 million and exemplary damages of $15 million. He seeks reversal of the Tribunal’s decision, dismissal of all charges, costs and fees, damages, any other findings or judgments that the Court deems appropriate, and damages for the counterclaims.
[17] In written submissions in support of this document, Mr Skagen said the new matters were based on recently recovered evidence arising from the Oregon State Bar proceeding.
Assessment of applications
[18] The grounds for a recall are set out in Horowhenua County v Nash (No 2).4 Of them, the only ground of possible application is that there exists “some other very special reason” that the judgment be recalled. Having reviewed all the documents filed by Mr Skagen, I am satisfied that no such reason arises.
[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 reasons 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.5
[20] There being no basis to recall my judgment, there is no jurisdiction to grant the discovery application or to accept the third amended notice of appeal for filing. Both of these applications are in reality a mix of things. I understand the discovery application to also be seeking leave to adduce further evidence and for that evidence to be adduced on oath in advance of a hearing on a new appeal. The third amended notice of appeal seeks to bring a counterclaim for damages. More importantly, as discussed with Mr Skagen at the hearing relating to these applications, apart from considering an application for leave to appeal to the Court of Appeal out of time, my jurisdiction is at an end.
4 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 6.33.
5 See, for example, Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 at [13].
[21] Mr Skagen asked me to treat his applications as an application for leave to appeal to the Court of Appeal out of time. Section 254 of the Lawyers and Conveyancers Act 2006 permits an appeal on a question of law. Apart from the fact that application for leave is very late, no question of law is articulated and no seriously arguable point of law is apparent.6 If Mr Skagen intends to pursue an appeal, his next step is to seek leave from the Court of Appeal. Further applications on this matter purported to be filed in this Court will likely give rise to consideration by the Registrar under r 5.35A of the High Court Rules 2016.
Result
[22]The applications are dismissed.
[23] Recognising Mr Skagen’s difficulties with accepting the position he has found himself in, his health difficulties, and his financial position, I declined to order costs against him on his first application for recall. The respondent submits costs should be ordered on the present applications because Mr Skagen should not be permitted to continually file interlocutory applications which have no merit. I agree. I order costs in the respondent’s favour on a 2B basis. It is a matter for the respondent whether it seeks to enforce the order in light of Mr Skagen’s health and financial issues.
Mallon J
6 An application for leave to appeal was required to be filed in the High Court within 20 working days after 1 August 2016: High Court Rules, r 20.3(1),(5) and (6).
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