SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2021] NZCA 566

SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2021]NZCA 566 [28 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA267/2020[2021] NZCA 566BETWEEN CHRISTOPHER KNUTE SKAGENApplicantAND WELLINGTON STANDARDSCOMMITTEE OF THE NEW ZEALANDLAW SOCIETYRespondentHearing: 16 August 2021Court: Gilbert, Courtney and Goddard JJCounsel: Applicant in PersonJ L S Shaw and T J McGuigan for RespondentJudgment: 28 October 2021 at 11 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In 2014 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal(the Tribunal) found Mr Skagen, then practising as a barrister in Wellington, guilty ofmisconduct and made an order striking him from the Roll of Barristers and Solicitorsof New Zealand.1 Mallon J dismissed Mr Skagen's appeal against the order strikinghim off.2[2] Mr Skagen seeks leave to appeal the High Court decision dismissing his appealand three other related decisions:3(a) Skagen v Wellington Standards Committee of the New Zealand LawSociety [2015] NZHC 2634 (the interlocutory judgment);(b) Skagen v Wellington Standards Committee of the New Zealand LawSociety [2016] NZHC 2799 (the first recall judgment); and(c) Skagen v Wellington Standards Committee of the New Zealand LawSociety [2020] NZHC 762 (the second recall judgment).[3] The application for leave is brought under s 254 of the Lawyers andConveyancers 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 withany determination of the High Court in the proceedings as beingerroneous in point of law may, with the leave of that court, or, if theHigh Court refuses leave, with the leave of the Court of Appeal,appeal to the Court of Appeal against the determination; and section56 of the Senior Courts Act 2016 applies to any such appeal.(2) In determining whether to grant leave to appeal under this section, theCourt of Appeal must have regard to whether the question of lawinvolved in the appeal is one that, by reason of its general or publicimportance or for any other reason, ought to be submitted to the Courtof Appeal for its decision.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].3 Lawyers and Conveyancers Act 2006, s 254. An application to this Court for special leave canonly be made after leave has been refused by the High Court. Mr Skagen filed his application forleave to appeal against all four judgments within 20 working days of the second recall judgmentbeing 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 theother three judgments. His appeal in this Court was held in abeyance pending the outcome ofthose applications, which were ultimately unsuccessful: Skagen v Wellington StandardsCommittee of the New Zealand Law Society [2021] NZHC 107.(3) The Court of Appeal, in granting leave under this section, may, in itsdiscretion, impose such conditions as it thinks fit, whether as to costsor otherwise.(4) The decision of the Court of Appeal on any appeal under this sectionis final.[4] The Judicature Act 1908 applies to this application as the original proceedingsbefore the Tribunal commenced prior to 1 March 2017. This Court set out theapproach to an appeal under s 254 (and the Judicature Act) in Hart v AucklandStandards Committee No 1 of the New Zealand Law Society:4[16] The approach taken to leave decisions in Waller v Hider accordinglyapplies by analogy.5 As Blanchard J, delivering the decision of the Court, saidin that case:6Upon a second appeal this Court is not engaged in the generalcorrection of error. Its primary function is then to clarify thelaw and to determine whether it has been properly construedand applied by the Court below. It is not every alleged errorof law that is of such importance, either generally or to theparties, as to justify further pursuit of litigation which hasalready been twice considered and ruled upon by a Court.[5] Mr Skagen has identified 18 grounds that would form the basis of his proposedappeal. We consider them in more detail after outlining the background to, and natureof, the charges that were the subject of the proceeding brought by the WellingtonStandards Committee of the New Zealand Law Society (the Standards Committee).[6] The Standards Committee opposes the application for leave to appeal on thebasis that:(a) the issues raised by Mr Skagen are an attempt to relitigate theHigh Court judgments as if on a general appeal;(b) the grounds identified either do not raise a question of law at all or donot raise one that would satisfy the statutory threshold; and4 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 theJudicature Act 1908.6 At 413.(c) despite being technically within time (Mr Skagen's application forleave being held in abeyance by this Court), the considerable delay inpursuing an appeal against the interlocutory judgment (delivered inOctober 2015), the substantive judgment (delivered in August 2016)and the first recall judgment (delivered in November 2016) countsagainst the grant of leave.Background[7] 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 suspendedfrom practice in Oregon for one year for conduct relating to the maintenance of histrust account. In 2008, Mr Skagen was again suspended from practice for 18 monthsfor mishandling client funds and failing to respond to lawful demands during theinvestigation. He returned to New Zealand later that year and commenced practice asa barrister in Wellington. However, the Standards Committee, having been advised ofthe proceedings in Oregon, brought reciprocal disciplinary proceedings based on theOregon charges, alleging unbecoming conduct in terms of the New Zealandlegislation.7 Mr Skagen was censured and ordered to pay costs of $8,000.[8] 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 balanceor provide adequate financial information to demonstrate his inability to pay it, theNZLS declined to renew his practising certificate. The decision of the NZLS not torenew Mr Skagen's practising certificate overlapped with the two complaints thateventually led to Mr Skagen being struck off.Complaint by Mr E[9] In February 2011 Mr E sought urgent advice from Mr Skagen on family lawmatters. Mr Skagen told Mr E that he would need to pay a lump sum in advance andengage a solicitor. He forwarded Mr E an invoice for $8,100 and his terms ofengagement. Payment for Mr Skagen's services was to be in two parts, one part7 Lawyers and Conveyancers Act, s 12(b)(i).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 actbecause he had already been consulted by Mr E's wife. There was a dispute overwhether Mr Skagen contacted Mr E again. In March 2011 a firm of solicitorscontacted Mr Skagen on behalf of Mr E, advising that his retainer was terminated, andrequesting both an itemised fee for the work to date and for the $4,100 that Mr E hadpaid to be refunded. Mr Skagen initially indicated that he was experiencing financialdifficulty but would refund the money as soon as he could. After a second request metthe same response, Mr E complained to the NZLS. The Standards Committee met on6 July 2011 and decided to commence an investigation.[10] Mr Skagen told the Standards Committee that he had tried to arrange meetingswith Mr E so that he could be instructed but Mr E did not respond. His position wasthat 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 tothe Tribunal. In 2013, the Standards Committee brought five charges againstMr Skagen: accepting instructions directly; accepting fees in advance; failing to paymonies received into a trust account; failing to act in a timely or competent manner;and failing to repay monies.8Complaint by Mr W[11] 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 May2011 about a family law proceeding. Mr W was dissatisfied with his current lawyerand, as there was a call of the matter in the Registrar's list the following week on 20May 2011, there was some urgency. Mr Skagen emailed Mr W his terms ofengagement and an invoice for $6,900, advising that he would contact Mr Smith witha view to Mr W engaging Mr Smith who would then instruct Mr Skagen.[12] Mr W paid Mr Skagen $6,900. He engaged Mr Smith, who instructedMr Skagen. Mr Skagen obtained an adjournment of the call. On 9 June 2011 theCourt directed that Mr W file and serve an affidavit dealing with relationship property.8 Substantive judgment, above n 2, at [2].On 21 June 2011 Mr Skagen advised Mr W that he would need detailed informationfor that purpose and also that Mr W would need to provide disclosure. No time framewas given for this work. There was no explanation as to what disclosure would entail.[13] Mr Skagen's practising certificate expired at the end of June 2011. He toldMr Smith this was because he was having difficulty finding the fee for renewal of thecertificate. Mr Skagen says that he did not know at that stage that his certificate wouldnot be renewed because of the outstanding costs still owing to the Tribunal. AlthoughMr Skagen had prepared the required affidavit, Mr Smith would not allow it to be filedand required the file to be returned to him. The Court directed that Mr Smith remainon the record until alternative counsel could be instructed; the proceedings wereadjourned to a date in August 2011; and a costs order was made against Mr W, whichcould be recovered from Mr Skagen.[14] Mr Smith contacted Mr Skagen, who said that he could not pay the costsawarded against Mr W and could not refund Mr W's $6,900. Mr W complained to theNZLS. The matter was referred to the Standards Committee which brought fivecharges: 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).9Other charges[15] The Tribunal appointed an investigator to look into both complaints.Mr Skagen's interactions with the investigator led to two further charges — failing topermit an investigator to examine accounts and failing to produce records to aninvestigator.The Tribunal's decision[16] The 12 charges of misconduct were brought against Mr Skagen in 2013. Thehearing was scheduled for 28 November 2014. However, during 2014 Mr Skagen wasvery ill and was hospitalised. He did not appear at the hearing and was not represented.9 At [2].The Tribunal's decision, delivered on 9 December 2014, was that all the charges wereproved and Mr Skagen would be struck off the Roll.10 He was also ordered to paycosts to the NZLS.11The decisions for which leave to appeal is sought[17] Mr Skagen now applies for leave to appeal against four judgments of theHigh Court related to these proceedings.[18] Prior to the substantive hearing of Mr Skagen's appeal, Collins J determinedseveral interlocutory applications, including Mr Skagen's application for discovery ofcorrespondence between the NZLS and the Oregon State Bar. The Judge did notconsider the documents were relevant to the appeal but did urge NZLS to provide themvoluntarily. This is the interlocutory decision that is the subject of the current leaveapplication.12[19] 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 theappeal on the other seven charges. She also dismissed the appeal against penalty.13[20] Mr Skagen applied for recall of Mallon J's substantive judgment, asserting thatshe had failed to deal with five issues. In November 2016, the Judge dismissed thatfirst recall application on the ground that the substantive judgment had dealt with thoseissues to the extent they were relevant.14[21] Mr Skagen did not advance an appeal against the substantive judgment becauseof his ongoing ill-health. Then, in early 2019 the Oregon State Bar brought reciprocaldisciplinary proceedings based on the New Zealand proceedings. There was a hearingbefore a Trial Panel of the Oregon State Bar. Mr Skagen asserted proceduralunfairness by the NZLS. Counsel for the NZLS gave evidence before the Trial Panel.10 Tribunal decision, above n 1, at [38].11 At [39].12 Skagen v Wellington Standards Committee of the New Zealand Law Society [2015] NZHC 2634[Interlocutory judgment].13 Substantive judgment, above n 2.14 Skagen v Wellington Standards Committee of the New Zealand Law Society [2016] NZHC 2799[First recall judgment].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 thereciprocal disciplinary proceeding until Mr Skagen applied for leave to appeal thesubstantive judgment.[22] In December 2019 Mr Skagen filed applications for further discovery, leave tofile further evidence, leave to file a third amended notice of appeal, as well as a secondapplication for recall of the substantive judgment.15 These applications were allrelated — they were advanced on the basis that, subsequent to the substantivejudgment and the first recall judgment, Mr Skagen had obtained documents thatshowed the judgments to have been obtained by fraud. During preparation for theOregon proceedings, Mr Skagen had made a request to the NZLS under theOfficial Information Act 1982 (the OIA). That request produced two emails and aletter that had been sent by Mr Skagen himself to the Standards Committee'sinvestigator 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, supportedhis account of having undertaken a substantial amount of work for Mr W and havingcommunicated with Mr E about engaging an instructing solicitor.[23] Mr Skagen subsequently lost his computer files. His complaint beforeMallon J in the second recall hearing was that evidence given by and on behalf of Mr Eand Mr W was perjured and that the Standards Committee prosecutors knew thisbecause they had in their possession the documents that Mr Skagen had lost.Mr Skagen says that the Standards Committee wrongly characterised him as dishonestand disingenuous when it had in its possession documents to the contrary.[24] On 20 April 2020, Mallon J dismissed the second recall application (andconsequently, the applications for discovery, leave to file further evidence and leaveto file an amended pleading):16[19] The allegations of dishonesty, perjury and tortious conduct and thelike, by those involved in the matters that led to the Tribunal's findings haveno proper basis. They mischaracterise legitimate actions by client E, client W15 These applications formed the basis of the second recall judgment.16 Skagen v Wellington Standards Committee of the New Zealand Law Society [2020] NZHC 762[Second recall judgment].and the Law Society and serve to illustrate that Mr Skagen has not understoodor has difficulty accepting the reason why the charges were brought againsthim and why some of those charges were ultimately upheld by this Court. Thearguments based on new evidence arises from the Official Information Actrequest he made of the Law Society for the purposes of the Oregonproceeding. That evidence could have been obtained if he had made therequest in preparation for the Tribunal hearing or the appeal to this Court. Hiswish to recast his arguments or to put forward further arguments that couldhave been raised at his first appeal does not provide a very special reason forrecall.(Footnote omitted.)The proposed grounds of appeal[25] As noted, leave to appeal under s 254 of the LCA can only be granted in respectof questions of law that are of such general or public importance so as to justify afurther appeal to this Court. Mr Skagen asserts that this case raises serious questionsand/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 thebody governing lawyers in New Zealand.17[26] Mr Skagen identifies numerous grounds in his amended notice of appeal andhis draft fourth amended notice of appeal.18 Of these, the following are not capable ofsupporting a grant of leave and we do not consider them in any detail:(a) The assertion of "many legal and factual questions that were notadequately dealt with in the High Court, or were entirely ignored".19No specific question of law is identified.(b) The assertions that: (1) evidence given by the New Zealand lawyers forthe NZLS to the Trial Panel of the Oregon State Bar containsinterpretations contrary to the law as interpreted by Mallon J,particularly regarding client privilege;20 and (2) "[t]estimony ofdisciplinary lawyers is unheard of in any kind of prosecution".2117 This was identified as ground 18 in Mr Skagen's notice of appeal but is really in the nature of asubmission.18 These broadly reflect the "defences" identified in the draft fourth amended notice of appeal.19 Grounds 2 and 3.20 Ground 4.21 Ground 13.The conduct of the Standards Committee is said to have subverted theprinciple of res judicata by continuing the proceedings after they hadbeen determined in New Zealand. The present application is concernedwith the judgments of the High Court in respect of which leave toappeal is sought. The conduct of the Standards Committee in relationto the Oregon proceedings do not, and cannot, constitute error by theHigh Court Judge. The evidence given at the Trial Panel's hearing,which took place two and a half years after the substantive judgmentwas delivered, is not within the ambit of the appeal for whichMr Skagen seeks leave.(c) Constitutional issues raised in the appeal filed by Mr Skagen inMay 2021 in the Supreme Court of the United States against thedecision of the Supreme Court of Oregon ought to be considered.22 Wethink it self-evident that this ground, which does not specify any errorby the High Court and relates to an appeal filed in the United States fiveyears after the substantive judgment was delivered, cannot support theapplication for leave to appeal against any of the High Court decisions.(d) The procedure leading to NZLS's decision not to renew Mr Skagen'spractising certificate was unfair and the NZLS "unlawfully used a priorcosts judgment as a lien over his right to practise law inNew Zealand".23 These complainants do not arise from any of thejudgments that Mr Skagen seeks leave to appeal on.(e) Mr Skagen's right to freedom of expression was violated in breach ofs 14 of the New Zealand Bill of Rights Act 1990 (BORA) in punishinghim for raising defences and referring to him as dishonest.24 In theHigh Court, Mr Skagen asserted two breaches of BORA rights — notbeing permitted to attend the Tribunal hearing by telephone conference,and not being given the opportunity to be heard by the Tribunal on22 Ground 5.23 Ground 6.24 Ground 11.penalty.25 There was, however, no complaint of a breach of the right tofreedom of speech. Such an assertion cannot now support anapplication for leave to appeal the High Court decisions.(f) The time that elapsed between the alleged offences in 2011, theinvestigation and the bringing of the charges in 2013 (a period of twoyears) was "a violation of the purpose of the new disciplinaryprocedural regulations".26 This was a matter that could have beenraised in the High Court but was not. It cannot be raised for the firsttime now.(g) Mr Skagen's belief that "the investigation, procedure and trial displayan ignorance of the fundamental jurisprudence necessary for fairness indisciplinary proceedings" does not contain any detail or particulars tosupport leave being granted to appeal the High Court decisions.27(h) A number of grounds of appeal that appear in the draft fourth amendednotice of appeal (but do not appear in the amended notice of applicationfor leave) which relate to conduct that was the subject of charges two,three, six, seven and 12 (accepting fees in advance, failing to paymonies received into a trust account and failing to produce records tothe investigator).28 These cannot be the subject of an appeal becausethose charges were quashed in the High Court.29The remaining grounds can be fairly summarised as follows:30(i) The judgment was procured by fraud as a result of perjury. This grounddepends on the further evidence obtained by Mr Skagen under the OIA.Relatedly, it is asserted that the NZLS was aware when it prosecuted25 Substantive judgment, above n 2, at [87] and [90].26 Ground 12.27 Ground 14.28 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].30 We set out the grounds in a different order to that used in Mr Skagen's amended notice ofapplication for leave to appeal.the charges that Mr Skagen did not have access to the furtherevidence.31(j) Perjured evidence was used to cast Mr Skagen as dishonest, resultingin findings of dishonesty, even though he was not charged with anydishonesty offending.32(k) Mallon J erred in finding that Mr Skagen could have discovered theevidence showing the perjury before the Tribunal hearing.33(l) The NZLS was not entitled to demand production of Mr Skagen's bankstatements relating to Mr Skagen's clients, except for those relating toMr E and Mr W.34 There was therefore no basis for charge 12 (failingto produce records to an investigator). Despite charge 12 being quashedby the High Court, we treat this ground as an assertion of error by theJudge in finding that the bank statements were not privileged.35(m) Mr Skagen's refusal to produce client records other than those relatingto Mr E and Mr W when requested by the investigator was made ingood faith to protect his clients' interest and was caused by his "ideasof a free and democratic jurisprudence [from his experience practisingin the United States] [which] caused him to overstep his place inNew Zealand".36(n) Mr Skagen had a defence to the charges relating to the money paid byMr E, namely that Mr E himself was in breach of his contract withMr Skagen.37 We note that the draft fourth amended notice of appealrelatedly asserts that the disciplinary process was used to circumvent31 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.Mr Skagen's contractual rights in respect of Mr E.38 We treat thisground 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 ofthe Lawyers and Conveyancers Act (Lawyers: Conduct and ClientCare) Rules 2008 (the Rules) — accepting instructions directly fromMr E) or charges four and eight (failing to act in a competent and timelymanner).39(p) There were breaches of natural justice by the Tribunal, which we treatas a question of whether the Judge erred in finding that there was nobreach of natural justice by the Tribunal.40[27] Finally, it is clear that no basis exists for an appeal against either theinterlocutory decision or the first recall decision. The former was decided mainly inMr Skagen's favour and had no identifiable influence on the outcome of thesubstantive judgment. As to the latter, the application was brought on the basis thatthe Judge failed to deal with some of Mr Skagen's arguments, which is plainly not thecase. We therefore proceed to consider the application for leave to appeal only againstthe substantive and second recall judgments on the grounds identified in (i) to (p)above.Application for leavePerjury/judgment obtained by fraud: grounds (i)–(k)[28] As noted, Mr Skagen says that the two emails and letter he obtained under theOIA request in preparation for the Oregon proceedings show that:4138 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 17.41 These documents were not before us at the hearing, having only been filed in the High Court inrelation to the second recall application. However, it was agreed that Mr Skagen would providethem to us following the hearing, which he did.(a) contrary to the Standards Committee's assertion, Mr Skagen hadcommunicated with Mr E about engaging an instructing solicitor andhad undertaken extensive work for Mr W;(b) those facts were known to the Standards Committee from the twoemails and letter which were received during its investigation; and(c) the Standards Committee knew that Mr Skagen did not have the emailsand letter himself because he had not produced them during thediscovery process (though the Standards Committee could not haveknown that the documents had been lost from Mr Skagen's computer atthe time).[29] Mr Skagen's submissions on these grounds essentially repeats the substance ofhis argument in the High Court — that the documents obtained under the OIA requestshowed the substantive judgment had been obtained through fraud.42 He has notidentified a particular error of law by Mallon J that might form the basis of leave toappeal, as required by s 254(1). We therefore approach this aspect of the applicationby considering whether Mr Skagen's argument shows any error of law of sufficientgeneral or public importance that would otherwise justify leave being given.[30] The Judge undertook her consideration of the second recall application byreference to the recognised legal test articulated in Horowhenua County v Nash (No2), focussing on the only possibly available limb, namely whether "some other veryspecial reason" existed which would justify recall.43[31] Mr Skagen's argument for recall depended on the documents he obtainedunder the OIA request. There is no obvious error in the Judge's view that thesedocuments could have been obtained prior to the Tribunal hearing and, before us, Mr42 Mr Skagen also says that the emails and letter evidence violations of his right to due process inrelation to the renewal of his practising certificate and of an "unlawful lien" imposed by the NZLSon his right to practice law. As already noted at [26(d)] above, these matters cannot form a basisfor the grant of leave.43 Second recall judgment, above n 16, at [18]; citing Horowhenua County v Nash (No 2) [1968]NZLR 632 (SC) at 633.Skagen did not suggest otherwise.44 In any event, this aspect of the Judge's decisionwas a finding of fact and not amenable to appeal under s 254.[32] Even if the documents were taken into account, the threshold would not be metby any stretch. The only document of any substance was one of the emails (this onerelating to Mr W), which included several attachments. The attachments included atwo-page draft affidavit of Mr W addressing property matters. There were also briefmemoranda as to change of representation and a memorandum advising the Court thathe had assumed conduct of the matter but was unavailable to attend a hearing as hewas about to go overseas. These documents would not have assisted in defending thecharge of failing to act in a timely or competent manner, including failing to adviseMr W of what was required regarding discovery, failing to advise that he no longerheld a practising certificate and failing to arrange alternative representation.[33] We accept that the documents attached to the emails show that Mr Skagenprovided 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 witnessperjured 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)[34] This issue relates to the charges arising from the investigator's complaint thatMr Skagen refused to produce his bank statements and client records when requiredpursuant to s 147 of the LCA, which was the subject of charge 11 (related only to thebank statements).45[35] In the High Court, Mr Skagen maintained that the investigator's powersextended only to trust accounts rather than a practitioner's personal account and thatthe investigator required a warrant to obtain records from his bank.46 He also asserted44 At [19].45 Mr Skagen sought to raise the argument regarding privilege in relation to charge 12 as well (failingto provide invoices for amounts shown in the bank statements), but since charge 12 was quashedin the substantive judgment, there is no issue in relation to it that can be the subject of an appealto this Court.46 Substantive judgment, above n 2, at [77] and [79].that producing the bank statements would breach the legal professional privilege ofclients other than Mr E and Mr W.47 The Judge analysed the powers conferred on theinvestigator by the LCA. She did not accept the argument that the power was limitedto trust accounts.48 She found that there was no evidence to support the assertion thatthe references in the bank statements to clients other than Mr E and Mr W meant thatthe documents were privileged.49[36] Mr Skagen's submissions on grounds (l) and (m) appear to reiterate theposition taken in the High Court, being that the bank statements were privileged andthe Standards Committee required a warrant to obtain them. However, Mr Skagen hasnot identified any specific error in the Judge's analysis rejecting these arguments. Wecannot see any obvious error. The assertion in his amended notice on appeal that hisexperience of practice in the United States caused him to "overstep his place in NewZealand" is not a question of law. Neither of these grounds meet the threshold forleave in s 254 of the LCA.Mr Skagen's contractual rights as a defence to the charges relating to Mr E:ground (n)[37] Mr Skagen's conduct in initially accepting that he would repay Mr E but failingto do so gave rise to charge 5 — a breach of r 3 of the Rules, which requires that alawyer must act competently and in a timely manner consistent with the terms of theretainer and the duty to take reasonable care. Before the Tribunal, Mr Skagen hadargued that he was not required to repay the money because Mr E himself had breachedthe contract (by failing to arrange an instructing solicitor). The Tribunal described thisposition as disingenuous and dishonest.50 The Judge recorded Mr Skagen'ssubmission as being that the Tribunal had failed to consider r 4.3 which provides thata client has the right to terminate a retainer "subject only to compliance with anyagreed terms in the retainer".51 She held that this provision did not assist Mr Skagen.52Because Mr E's instructions were conditional upon his solicitor instructing Mr Skagen47 At [82].48 At [78].49 At [82] and [83].50 Substantive judgment, above n 2, at [47]; referring to Tribunal decision, above n 1, at [18].51 At [48].52 At [49].which did not happen, Mr Skagen did not become entitled to any reimbursement forservices provided prior to the termination of the retainer. Nor was Mr E under anycontractual obligation to arrange an instructing solicitor. The Judge held that underthe terms of the original contract it was Mr Skagen who identified the solicitor whowas to instruct him and who was required to make that arrangement. There was nobreach of the retainer by Mr E and no loss sustained by Mr Skagen as a result.53[38] Mr Skagen's amended notice of appeal and his submissions do no more thanreiterate the argument advanced in both the Tribunal and the High Court. Thatargument clearly turned on the content of the terms of engagement the parties hadagreed on. There is no assertion of error by the Judge and no error is apparent.[39] We note that, in the draft fourth amended notice of appeal, an argument israised that the contractual issues should have been determined between the parties incivil proceedings prior to any disciplinary proceedings being brought, it being saidthat the complaints by Mr E and Mr W were made for the purpose of preventingcontract claims being brought against them. Not only was this argument not raised inthe High Court, it could not have succeeded. The Tribunal's statutory jurisdictionexists for the protection of clients and the regulation of legal practitioners.54 It is notconstrained by other rights that might exist between the parties. If such rights affectthe obligations of the practitioner or the client they ought to be taken into account. Butthere is no basis on which Mr Skagen could reasonably argue that he had contractualentitlements that relieved him of his professional obligations under the Rules.A general complaint: ground (o)[40] Mr Skagen also made a general assertion that the evidence and law did notsupport charge one (breach of r 14.4 — accepting instructions directly from Mr E) orcharges four and eight (breach of r 3 — failing to act in a competent and timely mannerin relation to Mr E and Mr W). However, no specific errors have been identified andnone are apparent from the substantive judgment.53 At [49].54 See Lawyers and Conveyancers Act, ss 3, 226 and 227.Conclusion[41] Mr Skagen seeks to relitigate the arguments that were considered and rejectedin the High Court substantive judgment and second recall judgment. He has notidentified any specific error of law and we cannot see any obvious error of law ineither judgment. In these circumstances, none of the grounds advanced meet thethreshold for leave in s 254 of the LCA.Result[42] The application for leave to appeal is declined.Solicitors:WynnWilliams, Christchurch for Respondent