SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2022] NZCA 203

SKAGEN v WELLINGTON STANDARDS COMMITTEE OF THE NEW ZEALAND LAW SOCIETY [2022]NZCA 203 [24 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA267/2020[2022] NZCA 203BETWEEN CHRISTOPHER KNUTE SKAGENAppellantAND WELLINGTON STANDARDSCOMMITTEE OF THE NEW ZEALANDLAW SOCIETYRespondentCourt: Gilbert, Courtney and Goddard JJCounsel: Appellant in PersonJLS Shaw and T J McGuigan for RespondentJudgment:(On the papers)24 May 2022 at 10 amJUDGMENT OF THE COURT[Application for Recall]A The application for recall of this Court's judgment delivered on28 October 2021 is declined.B We make no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] In 2014 the New Zealand Lawyers and Conveyancers Disciplinary Tribunalfound Mr Skagen guilty of misconduct and made an order striking him from the Rollof Barristers and Solicitors of New Zealand.1 Mallon J dismissed Mr Skagen's appeal1 Wellington Standards Committee of the New Zealand Law Society v Skagen [2014] NZLCDT 82.against the order striking him off.2 This Court declined Mr Skagen's application forleave to appeal the substantive decision in the High Court and three other relateddecisions.3[2] Mr Skagen subsequently filed a document entitled "Request forReconsideration" in which he requested a "review of the judgment issued on 1 August2016" — the substantive judgment in the High Court. We treat the request as anapplication to recall this Court's decision.[3] The application is opposed.[4] The jurisdiction to recall a judgment arises under r 8A of the Court of Appeal(Civil) Rules 2005. The Court may recall or reopen a judgment at any time before aformal record of it is drawn up and sealed. The respondent's opposition proceeds onthe basis that the Court's judgment may not have been sealed, notwithstanding that anotice of result issued on 29 October 2021 contained the Court's seal. There is someuncertainty about whether that is sufficient to have perfected the judgment for thepurposes of r 51.4 For reasons we come to, we are satisfied that the prerequisites forrecall are not met in this case and therefore we do not need to consider this issue.[5] As Mr Skagen acknowledges in his submissions, generally a judgment, oncedelivered, must stand for better or worse, subject to appeal.5 A decision will only berecalled in exceptional circumstances. A recall application cannot be used to relitigatereasons provided in a leave judgment.6[6] It is plain from Mr Skagen's memoranda filed in support of his application andsubmissions that he essentially seeks the opportunity to relitigate the matters raisedand rejected in the High Court and which this Court considered did not justify leave2 Skagen v Wellington Standards Committee of the New Zealand Law Society [2016] NZHC 1772..3 Skagen v Wellington Standards Committee of the New Zealand Law Society [2021] NZCA 566[Leave judgment].4 Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [12]–[18].5 S (SC39/2017) v R [2022] NZSC 7 at [3], citing Horowhenua County v Nash (No 2) [1968] NZLR632 (SC) at 633, and Craig v Williams [2019] NZSC 60 at [10].6 S v R at [3]; and Nuku v District Court at Auckland [2018] NZSC 39 at [2].being given to appeal. In his application for leave to appeal Mr Skagen advanced anumber of proposed grounds of appeal. They can be broadly summarised as being:(a) the Tribunal's judgment was procured by fraud through perjuredevidence;(b) Mr Skagen was entitled to claim privilege in respect of documents thathe was required to produce during the NZLS investigation;(c) Mr Skagen's own claim to breach of contract against a client who hadcomplained about him to the NZLS constituted a defence to the chargesagainst him in respect of that client;(d) there was an inadequate evidential basis to support some of the charges;and(e) breaches of natural justice by the Tribunal.[7] In the present application Mr Skagen asserts that there is new evidence thatjustifies the judgment being recalled. In fact, the evidence Mr Skagen refers to is notnew. It was considered in the application for leave to appeal.7[8] Mr Skagen raises the same arguments relating to fraud and privilege that wereconsidered in both the High Court and this Court in the application for leave to appeal.The arguments are advanced in the same form, raising issues that have already beenrejected as justifying leave to appeal.[9] Mr Skagen does seek to rely on a new argument relating to the interpretationof the trust account rules under which the charges against him were brought. However,an application for recall is not appropriate where a legal argument was available andcould have been raised at an earlier time.7 Leave judgment, above n 3, at [32]–[33].[10] Mr Skagen raises unspecified "claims and defences" in relation to claims byand against his former clients. Mr Skagen raised these claims previously and theywere dealt with.8 To the extent that there might be other claims not previously raised,the judgment cannot be recalled on that basis.[11] Finally, Mr Skagen raises procedural unfairness as a ground, asserting that hewas given inadequate notice of the hearing that led to his practising certificate notbeing renewed. This is a matter that was raised and dealt with in the application forleave to appeal.9 There is no basis on which it could justify a recall of the decision.[12] Mr Skagen's effort to recall the judgment seeks to relitigate arguments raisedand dealt with. The application for recall is declined.[13] There was no application for costs and we therefore make no order as to costs.Solicitors:Wynn Williams, Christchurch for Respondent8 Leave judgment, above n 3, at [37]–[39].9 At [26(d)].