SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2020] NZHC 762

SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2020]NZHC 762 [20 April 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2015-485-61[2020] NZHC 762UNDER the Lawyers and Conveyancers Act 2006IN THE MATTER OF discipline under the Lawyers andConveyancers Disciplinary TribunalBETWEEN CHRISTOPHER KNUTE SKAGENAppellantAND WELLINGTON STANDARDSCOMMITTEE OF THE NEW ZEALANDLAW SOCIETYRespondentHearing: 11 March 2020Appearances: Mr Skagen appearing in personJ L S Shaw for Respondent (by AVL)Judgment: 20 April 2020JUDGMENT OF MALLON JBackground[1] Mr Skagen has practised law in New Zealand and in Oregon in the UnitedStates. In 2014 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal(the Tribunal) found Mr Skagen guilty of misconduct on 12 charges relating to conductin 2011 concerning two clients (client E and client W) when Mr Skagen was practisingas a barrister in this country. The Tribunal made an order striking him from the Rollof Barristers and Solicitors of New Zealand.[2] Mr Skagen appealed the Tribunal's decision. In August 2016 I allowedMr Skagen's appeal to the extent that the Tribunal's findings on five of the chargeswere quashed.1 The appeal on the other seven charges was dismissed. The appealagainst penalty was also dismissed.[3] Mr Skagen applied for recall of my judgment. Mr Skagen contended that myjudgment had failed to deal with five issues. In November 2016 I dismissed theapplication.2 I did so because my judgment had in fact dealt with these issues to theextent they were relevant. The grounds for recall were therefore not made out.[4] The Oregon State Bar brought a reciprocal disciplinary proceeding seeking anorder disbarring Mr Skagen in Oregon. A hearing took place before a Trial Panel ofthe Oregon State Bar on in January 2019. Counsel for the respondent gave evidenceat this hearing. In October 2019 the Trial Panel issued an opinion disbarringMr Skagen.[5] In November 2019 the Oregon Supreme Court granted Mr Skagen's motion toabate the reciprocal disciplinary proceeding.3 The abatement applies until such timeas the New Zealand judgment is confirmed as a final judgment, following resolutionof Mr Skagen's motion for special leave in the High Court and his motion for anuntimely 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 reliefof 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 HighCourt in February 2020 before Grice J. Mr Skagen filed a memorandum for thishearing seeking that his applications be heard in person rather than on the papers. His1 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 2020at 11.47am. However, it refers to an upcoming hearing that had been scheduled for 10 March2020. I have assumed, therefore, that the order was obtained in November 2019.memorandum annexed a thick bundle of documents from the Oregon proceeding. TheJudge 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 hasnew evidence which shows the evidence of the prosecution was perjured and thejudgment was obtained by fraud. He relies on what he describes as "three importantitems of evidence", which are as follows:(a) evidence of dishonest conduct by the prosecution relating to evidenceof extensive work Mr Skagen had carried out for client W and evidencethat Mr Skagen had communicated with client E about the need tolocate an instructing solicitor;(b) evidence of violation of his right to due process in his attempts to renewhis practising certificate; and(c) evidence that the Law Society placed an unlawful lien on his right topractice law.[9] Mr Skagen submits the Law Society used false evidence to characterise him asdishonest and disingenuous, causing the trier of fact to ignore his legal arguments. Hecontends that for the Oregon hearing he discovered an email that he had sent to theLaw Society which contained exculpatory evidence. He discovered this email becausehe had made an Official Information Act request of the Law Society.[10] Mr Skagen submits the High Court judgment was in error because of theperjury of client E and client W, and that the prosecuting counsel, his law firm and therespondent knowingly assisted this. He says significant evidence was deliberatelyomitted in the affidavits of other witnesses. He says the facts of this case have alwaysbeen 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 thestress of continued legal proceedings which could have aggravated his medicalcondition and killed him.The discovery application[12] Mr Skagen requests that this Court order the production of new evidence andthat witnesses subject themselves to cross-examination. He says his affidavit providesproof of fraud and perjury by the prosecution. He says discovery is necessary for anassessment of damages, as well as for disciplinary and criminal complaints against theparticipants where necessary. Discovery will also allow this Court to have a broaderunderstanding of the issues and how they were previously addressed by this Court ina vacuum.The third amended notice of appeal[13] Mr Skagen has filed a "third amended notice of appeal" from the Tribunal'sdecision. This document begins by purporting to recount the background to thecharges relating to client E and client W. It includes allegations that:(a) client E committed the tort of interference with contractual relations byhiring a different lawyer and demanding the return of his fee, and fileda complaint against Mr Skagen to remove attention from his tortiousconduct;(b) client W perjured himself about the work Mr Skagen had carried out onan affidavit, and the prosecutor and investigator assisted with thisperjury; and(c) Mr Skagen's instructing solicitor perjured himself in an affidavit.[14] The document states that, after the High Court judgment declining MrSkagen's first application for recall, Mr Skagen "decided that to further appeal theHigh Court proceedings could kill him" because of his health issues. It states that,after being served with the reciprocal proceeding, Mr Skagen obtained documentsfrom the Law Society that he did not have for the High Court appeal via an OfficialInformation Act request.[15] The document sets out the ground of appeal as being that the Tribunal failed tocorrectly apply the law and facts in reaching its decision on the charge. It goes on toprovide specifics. The main points can be summarised as follows:(a) the evidence and law did not support the findings on charges or theTribunal misinterpreted the law or failed to apply proper legalreasoning to a factual analysis or acted without regard to a properfactual analysis (charges 1, 2, 3, 6 and 7);(b) Mr Skagen did not have an instructing solicitor because of the actionsof client E and his new lawyer (charges 4 and 8);(c) the respondent's improper actions concerning the renewal of hispractising 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 lawrather 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 toexamine 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 Act1990 for breach of contract and interference with contractual relations, and for fraud,abuse of process and misfeasance in public office. Mr Skagen claims general damagesof $8 million and exemplary damages of $15 million. He seeks reversal of theTribunal's decision, dismissal of all charges, costs and fees, damages, any otherfindings or judgments that the Court deems appropriate, and damages for thecounterclaims.[17] In written submissions in support of this document, Mr Skagen said the newmatters were based on recently recovered evidence arising from the Oregon State Barproceeding.Assessment of applications[18] The grounds for a recall are set out in Horowhenua County v Nash (No 2).4 Ofthem, the only ground of possible application is that there exists "some other veryspecial reason" that the judgment be recalled. Having reviewed all the documentsfiled by Mr Skagen, I am satisfied that no such reason arises.[19] The allegations of dishonesty, perjury and tortious conduct and the like, bythose 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 andserve to illustrate that Mr Skagen has not understood or has difficulty accepting thereasons why the charges were brought against him and why some of those chargeswere ultimately upheld by this Court. The arguments based on new evidence arisesfrom the Official Information Act request he made of the Law Society for the purposesof the Oregon proceeding. That evidence could have been obtained if he had madethe request in preparation for the Tribunal hearing or the appeal to this Court. Hiswish to recast his arguments, or to put forward further arguments that could have beenraised 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 thediscovery application or to accept the third amended notice of appeal for filing. Bothof these applications are in reality a mix of things. I understand the discoveryapplication to also be seeking leave to adduce further evidence and for that evidenceto be adduced on oath in advance of a hearing on a new appeal. The third amendednotice of appeal seeks to bring a counterclaim for damages. More importantly, asdiscussed with Mr Skagen at the hearing relating to these applications, apart fromconsidering an application for leave to appeal to the Court of Appeal out of time, myjurisdiction 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 toappeal to the Court of Appeal out of time. Section 254 of the Lawyers andConveyancers Act 2006 permits an appeal on a question of law. Apart from the factthat application for leave is very late, no question of law is articulated and no seriouslyarguable point of law is apparent.6 If Mr Skagen intends to pursue an appeal, his nextstep is to seek leave from the Court of Appeal. Further applications on this matterpurported to be filed in this Court will likely give rise to consideration by the Registrarunder 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 foundhimself in, his health difficulties, and his financial position, I declined to order costsagainst him on his first application for recall. The respondent submits costs should beordered on the present applications because Mr Skagen should not be permitted tocontinually file interlocutory applications which have no merit. I agree. I order costsin the respondent's favour on a 2B basis. It is a matter for the respondent whether itseeks to enforce the order in light of Mr Skagen's health and financial issues.Mallon J6 An application for leave to appeal was required to be filed in the High Court within 20 workingdays after 1 August 2016: High Court Rules, r 20.3(1),(5) and (6).