Skagen v Wellington Standards Committee of the New Zealand Law Society

[2016] NZHC 2799

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-61 [2016] NZHC 2799

IN THE MATTER OF

the Lawyers and Conveyancers Act 2006

BETWEEN

CHRISTOPHER KNUTE SKAGEN Appellant

AND

WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY

Respondent

Hearing:	18 October 2016
Appearances:	Mr Skagen appearing in person J L Shaw for the Respondent
Judgment:	22 November 2016

JUDGMENT OF MALLON J

[1]      The  New  Zealand  Lawyers  and  Conveyancers  Disciplinary Tribunal  (the Tribunal)  found  Mr  Skagen  guilty of  11  charges  of  misconduct.    The Tribunal ordered removal of his name from the Roll of Barristers and Solicitors.  It also made costs and compensation orders.  Mr Skagen appealed the Tribunal’s decision.  In a judgment delivered on 1 August 2016 I allowed Mr Skagen’s appeal in relation to five of the 11 charges.  I otherwise dismissed his appeal.1

[2]      Mr Skagen  applied  for  recall  of my judgment.    His  written submissions sought recall on the basis that I had not dealt with five issues in my judgment.  These five issues were said to be that Mr Skagen had acted properly under contract law, he had  acted  lawfully  in  claiming  privilege,  the  Standards  Committee  of  the  Law

Society  (the  Standards  Committee)  had  breached  the  law  and  were  liable  for

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

SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2016] NZHC 2799 [22 November 2016]

damages, Mr Skagen’s right to natural justice was breached in relation to penalty,

and there are post hearing evidence issues.

[3]      The grounds for a recall are set out in Horowhenua v County v Nash (No 2).2

The first four of the matters raised by Mr Skagen were considered and addressed in my judgment in so far as they were relevant.  These matters do not provide grounds for recall.

[4]      The fifth matter concerns the written instrument appointing the investigator for the Standards Committee of the Law Society.  This too was a matter considered in my judgment.   Mr Skagen contends that, subsequent to the appeal hearing, the Standards Committee waived privilege.   He says this waiver applies to the investigator’s written instrument of appointment and all communications between his former clients and the Standards Committee.   He seeks discovery of these documents.

[5]      This matter does not provide grounds for recall.   Moreover, Mr Skagen is incorrect about the extent of any waiver.  The waiver is said to arise from an affidavit I sought at the appeal hearing to clarify what had occurred at a telephone conference with the chairperson of the Tribunal, counsel for the Standards Committee and Mr Skagen.  At this teleconference directions for the hearing before the Tribunal were considered.     To  assist  with  providing  this  clarity,  counsel  for  the  Standards Committee provided an email received by the Standards Committee shortly after the telephone conference which reported on what had been discussed at the teleconference.  It is not clear that the email is privileged since it merely reports on a non-privileged telephone conference and contains no legal advice.  Be that as it may, any waiver of privilege relates only to the report on the teleconference.  There is no

basis for inferring any wider waiver privilege.3

[6]      I recognise that Mr Skagen is devastated by the position he has found himself in.  I also recognise he has had serious health difficulties.  However the application

2      Horowhenua v County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

3      See Evidence Act 2006, s 65(2); McGuire v Wellington Standards Committee (No 1) [2014] NZHC 1159 at [23]-[27]; and Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [EA65.02].

for recall is without merit and must be dismissed.  Mr Skagen is not in a financial position to pay costs.   He has not been able to meet the Tribunal’s cost and compensation orders.   In the circumstances there seems little point in making a further order for costs against him.

[7]      The application for recall is accordingly dismissed.

Mallon J