NZLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here:  NZLII >> Databases >> Court of Appeal of New Zealand >> 2019 >> [2019] NZCA 433

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

McGuire v New Zealand Law Society [2019] NZCA 433 (16 September 2019)

Last Updated: 24 September 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA308/2018
[2019] NZCA 433



BETWEEN

JEREMY JAMES MCGUIRE
Appellant


AND

NEW ZEALAND LAW SOCIETY
Respondent

Hearing:

2 September 2019

Court:

Collins, Wylie and Ellis JJ

Counsel:

Appellant in person
P N Collins for Respondent

Judgment:

16 September 2019 at 11.30 am


JUDGMENT OF THE COURT

  1. The application for leave to adduce further evidence is granted.
  2. The appeal is dismissed.
  1. The appellant is to pay to the respondent costs calculated for a standard appeal on a band A basis, together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

[1] The appellant, Mr McGuire, appeals a decision given by Associate Judge Osborne (as he then was) in the High Court at Wellington on 8 May 2018.[1]
[2] Mr McGuire had commenced proceedings against the New Zealand Law Society (the Society). The proceedings challenged a number of certificates of standing that had been issued by the Society to Mr McGuire, and which Mr McGuire was required to provide to the Secretary for Justice (the Secretary), in order to obtain approval to provide legal aid services. The certificates referred to “open complaints” made against Mr McGuire.[2] Mr McGuire alleged that this precluded him from applying to the Secretary for Justice for approval as a legal aid provider, and he sought damages from the Society as a consequence.
[3] The Society applied for summary judgment against Mr McGuire, on the basis that the cause(s) of action in Mr McGuire’s statement of claim could not succeed.
[4] Mr McGuire had not initially applied for summary judgment. In an amended statement of claim, he also sought summary judgment but only as to liability.
[5] Associate Judge Osborne gave summary judgment for the Society. He concluded that there was no arguable basis on which it could be contended the Society had a duty to provide Mr McGuire with certificates of standing which excluded open complaints.[3] He dismissed Mr McGuire’s application for summary judgment against the Society and ordered Mr McGuire to pay costs on a 2B basis, together with disbursements to be fixed by the Registrar.
[6] Mr McGuire contends that the Associate Judge misconstrued relevant provisions in the Legal Services (Quality Assurance) Regulations 2011 (the Regulations) and that the various certificates issued were invalid. He says that the Associate Judge was wrong both to grant summary judgment against him, and to dismiss his application for summary judgment as to liability.

Further evidence

[7] Mr McGuire belatedly sought leave to adduce further evidence — namely an affidavit from him dated 13 August 2019 which annexed an open complaint made against him in July 2017.
[8] There is nothing fresh about this evidence. It could with reasonable diligence have been produced at the hearing before Associate Judge Osborne. Nor are there any exceptional or compelling circumstances favouring its admission. Nevertheless Mr Collins, for the Society, accepted that there was no prejudice to his client in allowing Mr McGuire to adduce the additional evidence and on that basis, we grant leave.

Relevant factual background/the regulatory framework

[9] The legal aid regime is governed by the Legal Services Act 2011 (the LSA). It is administered by the Secretary for Justice.
[10] Mr McGuire was admitted as a barrister and solicitor in 1992. He practised initially in Wellington and later moved to Palmerston North. Earlier in his career, Mr McGuire was an approved legal aid lawyer, but he has not been approved to provide legal aid services since about 2010. He wishes to regain status as a provider of legal aid services.
[11] Mr McGuire has faced a number of professional complaints over the years, and some of these have resulted in adverse findings by various Standards Committees established by the Society as part of its complaints service. He has challenged a number of these findings and has achieved a reasonable measure of success in this regard. He has also challenged a number of the Secretary’s decisions declining to approve him as a legal aid services provider.[4]
[12] Part 3 of the LSA deals with the provision of legal aid services. In short, a person must not provide legal aid services unless approved by the Secretary.[5] Any application for approval must be made to the Secretary,[6] and an applicant lawyer must provide to the Secretary a certified copy of a certificate of standing issued by the Society.[7] The Regulations require that a certificate of standing must provide evidence of the applicant lawyer’s current practising certificate and “include information about any complaints upheld against the applicant” under the Lawyers and Conveyancers Act 2006 (the LCA).[8] They also require that an applicant satisfy the Secretary of his or her fitness and propriety.[9]
[13] The Society is the regulator of the legal profession in New Zealand pursuant to the LCA. In that capacity it has issued a number of certificates of standing to Mr McGuire, at his request, and on payment of a fee, over the years.
[14] A number of certificates were before the High Court. They were dated 30 January 2012, 6 June 2013, 6 May 2015, 28 July 2016, 1 September 2016, 22 December 2016, 1 June 2017 and 8 November 2017. All certificates included information considered to be accurate by the Society at the time of issue, including:
[15] The certificates were not in identical terms.
[16] The affidavits filed both by Mr McGuire and the Society focused on more recent certificates – in particular the certificates dated 28 July and 1 September 2016. Relevantly, the 28 July 2016 certificate provided as follows:

[Mr McGuire] holds a current practising certificate as a barrister and solicitor issued by the ... Society and is entitled to practise as a barrister and solicitor on own account.

On 3 December 2012, a Standards Committee determined that there had been unsatisfactory conduct, and ordered that Mr McGuire be censured, refund fees, apologise to a complainant, and pay costs. On 4 September 2014, the Legal Complaints Review Officer (LCRO) confirmed the decision. By decision dated 19 May 2016 the determination of the Standards Committee and decision of the LCRO were set aside. The High Court decision is currently subject to an appeal in respect of costs by Mr McGuire and a substantive appeal by the Standards Committee.

On 20 October 2011 Mr McGuire pleaded guilty to a charge of unsatisfactory conduct before the NZ Lawyers and Conveyancers Disciplinary Tribunal. On review the High Court quashed the censure imposed by the Tribunal but otherwise upheld the decision of the Tribunal.

On 1 August 2014, a Standards Committee determined that there had been unsatisfactory conduct on the part of Mr McGuire. He was censured and ordered to rectify an advertising error. This matter is currently subject to judicial review proceedings brought by Mr McGuire. The Standards Committee has admitted that the decision was inadvertently made without the required quorum and agreed to a consent order being issued by the Court that the finding be set aside. At the date of providing this certificate of standing Mr McGuire has not agreed to that course of action and is continuing with his judicial review application.

There are two open complaints currently before Standard Committees and one complaint where there was a finding of no further action by a Standards Committee that is currently on review with the LCRO.

The New Zealand Law Society considers that Mr McGuire is of good standing.

[17] Mr McGuire commenced judicial review proceedings against the Society in respect of this certificate. The dispute went to mediation and the Society and Mr McGuire settled the proceedings (and other proceedings) in August 2016. Following settlement, the Society wrote to Mr McGuire on 31 August 2016 apologising for “... the stress, inconvenience and embarrassment caused to you by the errors which resulted in three censure orders for unsatisfactory conduct in 2012 and 2014”. The letter also stated “... [t]he ... Society also regrets the deep distress the disciplinary prosecution in 2008 to 2011 caused you”.
[18] Pursuant to the settlement, on 1 September 2016, the Society issued Mr McGuire with a further and truncated certificate of standing. It followed a draft which was attached to the settlement agreement. The relevant parts read as follows:

[Mr McGuire] holds a current practising certificate as a barrister and solicitor issued by the New Zealand Law Society and is entitled to practise as a barrister and solicitor on own account.

On 20 October 2011 Mr McGuire pleaded guilty to a charge of unsatisfactory conduct.

There are two open complaints currently before Standards Committees and one complaint where there was a finding of no further action by a Standards Committee that is currently on review with the LCRO.

The New Zealand Law Society considers that Mr McGuire is of good standing.

[19] On 15 September 2016, Mr McGuire sent this new certificate of standing to the Ministry of Justice. The Ministry responded, saying that, because the open complaints were ongoing, the Secretary of Justice would not be able to assess whether Mr McGuire met the criteria for approval as a legal aid provider. Mr McGuire inter alia responded as follows: “If I can’t even apply with this certificate then serious questions need to be asked.”

The Ministry responded:

You are not prevented from applying.

My advice is that any application from you, with that certificate of standing, will be premature and will likely be declined for the same reasons your first application was declined. As I have stated before, it is impossible for the Secretary of Justice to assess whether or not anyone meets the fit and proper person requirements when the complaint determinations are outstanding.

[20] The later certificates — those issued on 22 December 2016, 1 June 2017 and 8 November 2017 — are similar to the 1 September 2016 certificate.
[21] Mr McGuire has not made fresh application to the Secretary. Rather, he brought the proceedings which have led to this appeal.

Mr McGuire’s pleadings

[22] Mr McGuire’s statement of claim does not clearly articulate a cause of action. It was analysed by Associate Judge Osborne in his decision. There was no criticism of that analysis and we gratefully adopt it. The Judge observed as follows:[10]

[15] In the statement of claim, Mr McGuire sets out the legislative and regulatory background, and a summary of the Society’s issuing of certificates of standing.

[16] He pleads (which is admitted) that certificates of standing cost $30 (inclusive of GST).

[17] Mr McGuire then pleads what he asserts to be the material history, which I group under the following headings.

2011 disciplinary proceeding (pleaded as “background”)

[18] Mr McGuire pleads:

  1. On 30 January 2012 the [Society] issued a certificate to the plaintiff. The certificate stated, inter alia, that “the Lawyers and Conveyancers Disciplinary Tribunal [the “tribunal”] found proven one charge of unsatisfactory conduct that is not so gross wilful, or reckless as to amount to misconduct pursuant to section 241(b) of the Lawyers and Conveyancers Act 2006”.
  2. The plaintiff has never had a charge of unsatisfactory conduct proven against him by the tribunal.
  3. The plaintiff objected to the use of the word “proven” by the defendant in this certificate.
  4. The defendant refused to change the wording in the certificate after these objections were made.

Society's certificate of standing dated 28 July 2016

[19] In the central portion of his statement of claim in which Mr McGuire identifies his cause of action, Mr McGuire points specifically to one certificate dated 28 July 2016 (and other “variously issued certificates”) which included references to open complaints. The full pleading reads:

  1. The plaintiff has variously requested and paid for certificates from the New Zealand Law Society since at least 30 January 2012.
  2. Those certificates include one dated 28 July 2016.
  3. That certificate was subject to judicial review proceedings that are mentioned in the written apology from the New Zealand Law Society to the plaintiff dated 31 August 2016 which apology is pleaded in full [annexed to the statement of claim as a Schedule].

...

[20] Mr McGuire has exhibited to his affidavit evidence four certificates of standing (dated 1 September 2016, 22 December 2016, 1 June 2017 and 22 November 2017). Three expressly refer to “open complaints” or complaints currently before a Standards Committee. One certificate refers to a complaint “currently on review with the [Legal Complaints Review Officer]”.

Aggravating facts

[21] In the remaining paragraphs of the statement of claim, Mr McGuire makes allegations under a heading “aggravating facts”. There he pleads (and I summarise) that:

(a) In 2016 and 2017, the Society issued a number of certificates of standing which referred to open complaints;

(b) Mr McGuire issued judicial review proceedings concerning the 28 July 2016 certificate because it referred to open complaints;

(c) The judicial review proceeding (and other matters) were resolved through a mediation. Following the mediation, the Society apologised and paid compensation to Mr McGuire, partly because the [S]ociety had issued certificates that referred to open complaints;

(d) Notwithstanding the mediation, apology and settlement, the Society has subsequently issued three further certificates that incorrectly refer to open complaints;

(e) The three subsequent certificates evidence bad faith and contemptuous conduct on the part of the Society;

(f) Mr McGuire has suffered severe stress and anxiety, loss of quality of life, social stigma and embarrassment and loss of professional reputation because of the Society contumelious conduct. (Mr McGuire gives particulars of the effects on his personal life and on his professional reputation);

(g) Since the Society’s apology, the Society has continued to treat Mr McGuire in “the same or similar manner” by:

(i) failing to properly manage unmerited complaints concerning him;

(ii) initiating an own motion investigation about him and holding a hearing (while knowing that he had not received notice because he was overseas);

(iii) determining Mr McGuire should be censured for unsatisfactory conduct after the first adverse determination of the same complaint was set aside by the High Court and the redetermination involved a misunderstanding of the self-evident scope of the retainer between Mr McGuire and a complainant;

(h) The Society’s prosecution of Mr McGuire for alleged misconduct and the Society’s certificate dated 30 January 2012 prevented him from being able to apply for a legal aid contract after the [LSA] came into force, causing the plaintiff to suffer loss of income.

[23] The Associate Judge then summarised the Society’s defence as follows:

[22] ... The Society for the most part admits the statutory and regulatory regime as pleaded by Mr McGuire.

[23] It admits that it is the issuer of certificates of standing. It pleads that the Secretary determines the requirements for all applications for approval from the Secretary to provide legal services [and] that the Society has no control or responsibility over the requirements.

[24] ... the Society essentially asserts it has not acted unlawfully or in breach of any duty by including reference to open complaints in its certificates of standing.

[25] To the extent that Mr McGuire makes claims relating to or arising out of certificates of standing issued prior to and including the certificate dated 1 September 2016, the Society pleads by way of affirmative defence that all such claims were settled and discharged as a term of the settlement agreement dated 26 August 2016 ...

[26] ... the Society asserts that Mr McGuire has not adduced evidence which establishes arguably that the Society caused him damage through one or more of its certificates of standing. The Society says that Mr McGuire cannot establish causation because the Secretary has declined one or more applications for legal service provider status for reasons other than that the certificates refer to open complaints.

[27] The Society also pleads an alternate defence should the Court find it arguable that the Society’s certificates of standing were objectionable because they contained reference to open complaints. The Society pleads that Mr McGuire is precluded from asserting any general objection on that basis having accepted as a term of the settlement agreement the form of the certificate of standing dated 1 September 2016 which expressly included reference to open complaints.

The Associate Judge’s decision

[24] Associate Judge Osborne discussed the regulatory regime applying to those who seek to provide legal aid services. He noted Mr McGuire’s argument that he was caught in a “loop”[11] — namely that, at the time he made his various applications, he was the subject of open complaints, that the Society included in its certificates statements to this effect and that the Ministry of Justice had advised him that any application supported by a certificate of standing which contains a reference to an open complaint will not be considered by the Secretary until the complaint has been determined.
[25] The Associate Judge summarised relevant principles applicable to summary judgment applications, both by plaintiffs and by defendants.[12] He held that, to succeed, there needed to be, on Mr McGuire’s part, at least an arguable claim (to defeat the Society’s summary judgment application), or a claim which was beyond argument (to succeed on his own summary judgment application).[13] He noted that, while Mr McGuire’s statement of claim did not specify separate causes of action, in his written submissions, Mr McGuire had relied on two causes of action — breach of the relevant Regulations (which the Associate Judge treated as being an allegation of breach of statutory duty) and failure to provide him with correct certificates, which he had paid for (breach of contract).[14]
[26] Associate Judge Osborne referred to the relevant regulations. He noted that reg 5(1) requires that a certificate “include” information about any complaint upheld against an applicant. The Judge analysed the meaning of the word “include”, noting that its primary meaning is “to comprise as a part, contain”.[15] He then went on to consider the word “including”, noting that it is frequently found in interpretation or definition provisions. The Judge then considered the broader text of reg 5, observing that it might require an interpretation different to the natural meaning of the word “include”. He accepted that reg 5 refers only to upheld complaints, but went on to observe that the regulation does not contain, in its broader text, any indication or suggestion that details of upheld complaints in certificates of standing “represent the exclusive subject-matter”.[16] He commented that if reg 5 was intended to confine certificates of standing to specific matters, it would have been a simple matter for the drafter to state such limitation precisely.[17]
[27] The Judge noted that, as the regulator of the legal profession, the Society is in a unique position to comment on a lawyer’s standing, and observed that in the absence of clear wording, it would be an extraordinary regulatory provision which required the Society to provide a certificate of standing but to exclude from it information which the Society regarded as relevant to standing.[18]
[28] The Judge went on to consider reg 9C, which requires an applicant to provide to the Secretary details of any convictions punishable by imprisonment and details of any upheld complaints under the legal services legislation. The Associate Judge was satisfied that “nothing which might be argued to expand or limit the Secretary’s considerations under [r]egulation 9 or otherwise should be taken to have limited the legitimate scope of the subject matter of the Society’s certificate of standing under [r]egulation 5”.[19] He considered that, in the absence of a requirement upon the Society to limit the scope of the subject matter of a certificate of standing, reg 9C did not affect the proper construction of reg 5.[20]
[29] The Judge concluded that the Society was not required by the regulations to exclude from a certificate of standing details of outstanding or unresolved complaints.[21] He considered that Mr McGuire had been unable to identify an arguable basis to suggest that the Society had a duty, whether statutory or contractual, to provide Mr McGuire with certificates of standing which excluded reference to open complaints, and that accordingly the Society was entitled to judgment on Mr McGuire’s claim.[22] As a consequence, Mr McGuire’s cross-application for summary judgment as to liability also failed. Judgment was entered accordingly.[23]

Submissions

Mr McGuire’s submissions

[30] Mr McGuire submitted that, on a plain reading, the use of the word “include” in reg 5 means that the Society can only include information about upheld complaints in certificates. He drew attention to reg 9C(2), which provides that an applicant must provide details of any conviction or of any upheld complaint under the legal services legislation. He noted that both regs 5 and 9C refer only to upheld complaints. He put it to us that it would have been easy to use the word “including” rather than “include”, and similarly, that an express reference to an open complaint could have been made in the regulations.
[31] Mr McGuire argued that the policy reason for favouring a narrow reading of regs 5 and 9C is the presumption of innocence. He further submitted that lawyers, particularly legal aid lawyers, are often the subject of unfounded complaints and that the resolution of such complaints can take some considerable time.
[32] Mr McGuire also argued that, even if the inclusion of open complaints is permissible under reg 5, the Society has still breached duties owed to him. He submitted that the Society owed him both:

... a statutory and contractual duty of good faith to use its reasonable best endeavours to provide reasonable information to the Secretary ... to at least clarify and elaborate on the references to any open complaint included in any certificate.

The Society’s submissions

[33] Mr Collins submitted that referring to open complaints in a certificate of standing is not precluded by the relevant regulations and that in context any such reference is appropriate. He argued that the wording of reg 5 is neither prescriptive nor definitive of the content of certificates of standing. He put it to us that, as the regulator of the legal profession, the Society is in a unique position to comment on a lawyer’s standing. He reiterated the observations made by Associate Judge Osborne that, in the absence of clear wording, it would be an extraordinary regulatory provision that requires the Society to provide a certificate of standing but to exclude information which the Society regards as relevant to standing.
[34] Mr Collins also drew our attention to the overriding responsibilities of the Secretary noting that he/she has to be satisfied about the fitness and propriety of a lawyer applying for approval as a legal aid service provider. He submitted that information about open complaints is a legitimate aspect of any inquiry undertaken in this context. He argued that the protective purposes of the LSA and the Regulations would be frustrated if Mr McGuire’s interpretation is to be adopted — first, the Society would be prevented from notifying the Secretary about disciplinary proceedings on foot against the lawyer; secondly, the Society would not be able to refer to an own motion investigation because it is not a “complaint upheld”; thirdly, it would be contrary to the statutory purposes of quality control and public protection if the Society could not alert the Secretary to a pending decision on a complaint just because it has not progressed to a “complaint upheld” at the time the certificate is issued.

Analysis

[35] Regulation 5(1) provides as follows:

(1) If the applicant is a lawyer, the applicant must provide a certified copy of the applicant’s certificate of standing issued by the New Zealand Law Society. The certificate must—

(a) provide evidence of the applicant’s current practising certificate; and

(b) include information about any complaints upheld against the applicant under the Lawyers and Conveyancers Act 2006.

[36] At issue is whether the requirement to include information about any complaints upheld, precludes reference to open complaints.
[37] As Associate Judge Osborne noted, the word “include” is an ordinary English word, in common parlance. The Judge referred to the Chambers Dictionary, noting that the primary meaning of the verb “include” is “to comprise as a part, contain”.[24] He adopted this meaning and we agree that that was appropriate. We note that the Shorter Oxford English Dictionary gives a similar meaning to the word “include”:[25]

Shut in; enclose.

Contain as part of a whole or as a subordinate element; contain by implication, involve.

Place in a class or category; treat or regard as part of a whole, allow to share in a right, privilege or activity;

[38] The word “include” is often used in interpretation clauses in statutes, to enlarge the meaning of words or phrases occurring in the body of the statute. When it is so used, the words or phrases fall to be construed as extending not only to such things as they signify according to their natural import, but also those things which the interpretation clause declares shall be included. The word “include” can also be susceptible to another construction. It can be equivalent to “mean and include”, and in such cases it can afford an exhaustive meaning of the words with which it is associated.[26]
[39] Regulation 5 is not an interpretation provision. In context, in our judgment, the use of the word “include” in reg 5(1)(b) simply means that any certificate of standing issued by the Society must contain (or comprise as a part, or enclose) information about any complaints upheld against an applicant lawyer. There is nothing in the regulation to limit a certificate of standing to upheld complaints, and the broader statutory context — which we come to shortly — strongly suggests that certificates of standing are not required to be limited to the bare minimum of information set out in reg 5(1)(a) and (b).
[40] We do not consider that reg 9C affects the position. Relevantly, that regulation reads as follows:

9C Applicant must be fit and proper person

(1) Every applicant must satisfy the Secretary that he or she is a fit and proper person to provide legal aid services or specified legal services.

(2) For the purposes of subclause (1), an applicant must provide to the Secretary—

...

(b) details of any complaint upheld against the applicant under the Act or the former Act.

(3) In deciding whether an applicant meets the criterion in subclause (1), the Secretary must be satisfied that—

...

(b) any complaints upheld against the applicant under the Act or the former Act, when considered individually or together, would not—

(i) adversely affect the integrity of the legal services system; or

(ii) breach any practice standards; and

(c) any complaints upheld against the applicant under the Lawyers and Conveyancers Act 2006, when considered individually or together, would not—

(i) adversely affect the integrity of the legal services system; or

(ii) breach any practice standards.

...

[41] Regulation 9C compliments reg 5(1)(b). A certificate of standing must include information about any complaints upheld against a lawyer applicant under the LCA. Under reg 9C(2), a lawyer applicant must provide the Secretary with details of any convictions for offences punishable by imprisonment and of any complaints upheld against the applicant not only under the LSA but also under the former Legal Services Act 2000. There is also a general duty of candour on any lawyer applicant.[27] The onus of satisfying the Secretary that he or she is a fit and proper person to provide legal aid services or specified legal services rests on the applicant. An applicant should provide to the Secretary with such information as he or she deems relevant to that issue. The Secretary will then have the necessary information to consider the application as required by reg 9C.
[42] The Secretary, in deciding whether or not an applicant is a fit and proper person to provide legal aid services, or specified legal services, must inter alia be satisfied that any complaints upheld under the LSA or the predecessor Act, whether considered individually or together, will not adversely affect the integrity of the legal services system or breach any practise standards. There is no equivalent provision dealing with complaints upheld, or still open, under the LCA. The fact of such complaints and any additional detail provided by an applicant lawyer will nevertheless inform the Secretary in deciding whether or not he or she is satisfied as required by the legislation. In our judgment, the obligations imposed on lawyer applicants under reg 9C(2) and the duty of candour, go beyond the more narrow requirements of reg 5(1)(b).
[43] This leads to the statutory purpose.
[44] The Court is required to ascertain the meaning of any enactment from its text and in light of its purpose.[28] Part 3 of the LSA deals with the administration of the legal services system and legal aid is of course appropriated by Parliament. There are two issues at play — the maintenance of high quality legal aid services,[29] and the responsible stewardship of the public purse.
[45] To these ends:
[46] Regulations 5– 9 set out the criteria to be met by an applicant. Regulation 5 is concerned with professional entry requirements. We have set out the relevant parts of that regulation already. As also noted, under reg 9C, every applicant must satisfy the Secretary that he or she is a fit and proper person to provide legal aid services or specified legal services.
[47] The Secretary must provide reasons for his or her decision to give or decline approval.[37] Any approval must be in writing, must state the conditions if any of the approval, state the duration of the approval and state the particular legal aid services or specified legal services that the provider is approved to provide.[38]
[48] A lawyer providing legal aid services or specified legal services must still comply with his or her rights, obligations, responsibilities or duties as a lawyer.[39]
[49] Relevantly, the Secretary must establish a performance review committee.[40] The function of that committee is to assess and advise the Secretary of any matter referred to the committee by the Secretary relating to the performance of a provider.
[50] The Ministry of Justice may also carry out quality assurance checks on providers of legal aid services to ensure that the services are delivered in an effective and efficient manner.[41] Claims made by providers can be examined,[42] and the Secretary may at any time audit any provider of legal aid services or specified legal services. An audit may, without limitation, include an assessment of the provider’s compliance with practise standards, any conditions imposed on the provider’s approval, the terms and conditions of the service contract and guidelines and policies issued or made by the Secretary. An audit may also consider any substantial or unresolved complaints concerning the delivery of legal aid services or specified legal services.[43] A person who is subject to an examination or audit must cooperate with the auditor.[44]
[51] All of these various provisions are designed to ensure that lawyers seeking to provide legal aid services are fit and proper persons to do so and that, once approved, providers deliver legal aid services to legally aided persons appropriately and in a cost efficient way. The provisions are intended for the protection of the public, to ensure high standards of legal representation for legally aided persons, and the responsible stewardship of public money through the provision of legal aid.
[52] The protective purposes of the LSA would be frustrated if the strict interpretation advanced by Mr McGuire is to be accepted. If the only disciplinary matters the Society was entitled to record in certificates of standing were “complaints upheld” against an applicant, the Society would be constrained from notifying the Secretary about other potentially relevant issues, for example, disciplinary proceedings on foot, including proceedings before the New Zealand Lawyers and Conveyancers and Disciplinary Tribunal, possibly involving serious charges (unless verification of any information provided with the application or by an applicant is sought by a delegated selection committee under regulation 11(2)(b)). Further, the Society could not refer to an own motion investigation into an applicant under s 130(c) of the Lawyers and Conveyancers Act, since that is not a “complaint upheld”. Nor could it bring to the Secretary’s attention other matters which might be potentially relevant — for example, serious mental or physical issues which have led the Society to intervene in a practitioner’s legal practice.[45]
[53] In our judgment, the Society, as the regulator of legal services, should be entitled to bring open complaints to the attention of the Secretary, because such complaints may well be relevant to the proper performance by the Secretary of his or her statutory duties. The statutory scheme supports the provision by the Society of all relevant information to the Secretary so that he or she can determine whether or not a lawyer applicant is a fit and proper person for appointment as a legal aid provider. We agree with the observation made by Associate Judge Osborne that it would be an extraordinary statutory or regulatory provision which required the Society to provide a certificate of standing but to exclude from it information which the Society itself regarded as relevant to standing.
[54] There is one other provision which assists. Regulation 27 concerns the way in which the conduct of a review by the Review Authority of a decision made by the Secretary can proceed. Relevantly, reg 27(1)(c) provides as follows:

(1) In conducting a review, the Review Authority—

...

(c) may consider any statement, document, information, or matter that in the Review Authority’s opinion may assist the Authority to deal effectively with the subject of the review, whether or not it would be admissible in a court of law.

[55] It would be a surprising result if the Review Authority was able to consider relevant material which the initial decision-maker — the Secretary — could not consider because he or she was unaware of it, because, in turn, the Society could not tell the Secretary about it.
[56] For completeness, Mr McGuire’s oral submissions focused in part on his assertion that the Secretary is wrongly refusing to either accept or consider his applications for approval while there are complaints outstanding. That is not an issue raised by Mr McGuire in his pleadings and it was not before us. We simply note that there is force in Mr Collins’ submission that the proper course for Mr McGuire is to apply for approval as a legal aid provider and, if his application is refused, then to seek review by the independent Review Authority.[46]

Result

[57] In our view, Associate Judge Osborne was correct to find that Mr McGuire could not establish an arguable basis for his assertion that the Society was liable for damages because it owed him a duty to exclude open complaints from its certificates of standing. The Judge was also correct to find that Mr McGuire’s application for summary judgment failed, because of his findings on the Society’s summary judgment application.
[58] The application for leave to adduce further evidence is granted.
[59] The appeal is dismissed.
[60] The Society is entitled to costs on the appeal. Mr McGuire is to pay the Society costs calculated for a standard appeal on a band A basis, together with usual disbursements.


Solicitors:
New Zealand Law Society, Wellington for Respondent


[1] McGuire v New Zealand Law Society [2018] NZHC 983.

[2] Open complaints are uncompleted complaints that had not been determined at the time each certificate was issued, or own motion investigations under s 130(c) of the Lawyers and Conveyancers Act 2006.

[3] McGuire v New Zealand Law Society, above n 1, at [66].

[4] The litigation background was discussed by William Young J in a recent decision of the Supreme Court, see McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [13]–[28].

[5] Legal Services Act 2011, s 75.

[6] Section 76.

[7] Legal Services (Quality Assurance) Regulations 2011, reg 5(1).

[8] Regulation 5(1)(b).

[9] Regulation 9C(1).

[10] McGuire v New Zealand Law Society, above n 1.

[11] McGuire v New Zealand Law Society, above n 1, at [5]–[7].

[12] At [33]–[36].

[13] At [37].

[14] At [38]–[41].

[15] At [46].

[16] At [51].

[17] At [52].

[18] At [53].

[19] At [58].

[20] At [55]–[58]

[21] At [59].

[22] At [66].

[23] At [70].

[24] At [46].

[25] Shorter Oxford English Dictionary (6th ed, Oxford University Press, Oxford, 2007) vol 1 at 1353.

[26] Dilworth v Commissioner of Stamps [1899] AC 99 (PC), at 105–106 per Lord Watson; See also Reynolds v Commissioner of Income Tax [1967] 1 AC 1 (PC); and Commissioners of Customs and Excise v Savoy Hotel Ltd [1966] 1 WLR 948 (QB) at 953.

[27] See generally Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192 at [40], [45], [53], [56]–[57] and [62].

[28] Interpretation Act 1999, s 5(1).

[29] And see McGuire v Secretary for Justice [2018] NZCA 37, [2018] 3 NZLR 71 at [31]–[39]; appeal dismissed in McGuire v Secretary for Justice, above n 4.

[30] Legal Services Act, s 68(1)(a).

[31] Section 68(2)(c).

[32] Section 69(b).

[33] Section 74(c).

[34] Section 75.

[35] Section 76.

[36] Section 77.

[37] Section 77(4).

[38] Section 77(3)(a)–(d).

[39] Section 81(2)(a).

[40] Section 79(1).

[41] Section 88.

[42] Section 89.

[43] Section 91(4)(a) and (b).

[44] Section 92(1).

[45] Lawyers and Conveyancers Act 2006, s 163.

[46] Legal Services Act, s 82.


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2019/433.html