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

SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2016] NZHC 2799 [22 November 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2015-485-61[2016] NZHC 2799IN THE MATTER OF the Lawyers and Conveyancers Act 2006BETWEEN CHRISTOPHER KNUTE SKAGENAppellantAND WELLINGTON STANDARDSCOMMITTEE OF THE NEW ZEALANDLAW SOCIETYRespondentHearing: 18 October 2016Appearances: Mr Skagen appearing in personJ L Shaw for the RespondentJudgment: 22 November 2016JUDGMENT 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 madecosts 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 tofive 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 for1 Skagen v Wellington Standards Committee of the New Zealand Law Society [2016] NZHC 1772.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).2The 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 theinvestigator's written instrument of appointment and all communications betweenhis 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 application2 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 financialposition to pay costs. He has not been able to meet the Tribunal's cost andcompensation 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