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High Court of New Zealand Decisions |
Last Updated: 10 May 2018
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
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CIV-2017-485-000346
[2018] NZHC 983 |
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BETWEEN
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JEREMY JAMES MCGUIRE
Plaintiff
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AND
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NEW ZEALAND LAW SOCIETY
Defendant
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Hearing:
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22 March 2018
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Appearances:
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J J McGuire (plaintiff) in person P N Collins for defendant
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Judgment:
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8 May 2018
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JUDGMENT OF ASSOCIATE JUDGE OSBORNE
on summary judgment application
Introduction
[1] Jeremy McGuire has been a practising lawyer. For some years, he has unsuccessfully sought approval from the Secretary for Justice (the Secretary) to provide legal aid services. At the core of his problem is that usually (if not invariably) Mr McGuire has been subject to what the New Zealand Law Society (“the Society”) refers to as “open complaints”.
[2] As part of the application process to become a legal aid provider, Mr McGuire is required to provide to the Secretary a certificate of standing from the Society. The Society’s practice is to include reference to open complaints in its certificates. Mr McGuire points to evidence suggesting that the Secretary (or the Secretary’s Selection Committee), upon receipt of a certificate of standing which refers to open complaints, will not process the application while the complaint remains unresolved.
MCGUIRE v NEW ZEALAND LAW SOCIETY [2018] NZHC 983 [8 May 2018]
[3] Mr McGuire’s claim against the Society in this proceeding turns upon whether the Society was required (by the relevant regulatory regime) or agreed as a matter of contract to exclude from its certificates of standing any reference to open complaints made against Mr McGuire.
The regulatory regime
[4] In summary, the regulatory regime applying to an application to provide legal aid services provides:
(a) A person must not provide specified legal aid services unless approved by the Secretary to provide those services;1
(b) An application for approval to provide legal aid services must be made to the Secretary in the prescribed manner;2
(c) The Secretary may approve a person to provide legal services if the Secretary is satisfied that the person meets the criteria prescribed in the regulations;3
(d) Regulation 9C Legal Services (Quality Assurance) Regulations 2011 (“the Regulations”) provides:
(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—
(a) details of any conviction of the applicant for an offence punishable by imprisonment; and
(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—
1 Legal Services Act 2011, s 75.
2 Legal Services Act 2011, s 76.
3 Legal Services Act 2011, s 77(1).
(a) any convictions of the applicant, when considered individually or together, would not adversely affect—
(i) the applicant’s relationship with a client who is an aided person; or
(ii) the integrity of the legal services system; and
(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.
...
(e) Regulation 5(1) provides:
5 Professional entry requirements
(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.
The “loop” encountered by Mr McGuire
[5] Mr McGuire says that he is caught in a loop which has prevented his application from even being considered by the Secretary. He says that the loop comes about on the facts of his case because:
- (a) Mr McGuire, at the time of making his various applications, has been the subject of open complaints (meaning complaints which have yet to be heard by the appropriate disciplinary body); and
(b) The Society’s practice in such cases is to include in its certificate of standing a statement to the effect that “There are X open complaints currently before Standards Committees”; and
(c) Mr McGuire has received information from the Ministry of Justice that any application supported by a certificate of standing which contains an “open complaint” statement will not be processed by the Secretary’s Selection Committee until any open complaint has been determined.
[6] Thus, the loop in which Mr McGuire asserts he finds himself operates in this manner:
(a) The Secretary’s published policy in relation to the matters which he can consider in determining if an applicant is a fit and proper person extends only to complaints which have been upheld and not to those which are open;
(b) The Society nonetheless provides to the Secretary, in its certificate of standing, information as to the existence of open complaints;
(c) The Society in its certificate of Mr McGuire’s standing issued on 8 November 2017 stated that “there are three open complaints currently before Standards Committees”;
(d) The practice of the Secretary’s Selection Committee appears to be to withhold consideration of an application until an “open complaint” is determined;4
[7] It is Mr McGuire’s case that the loop should not exist because the Secretary should not on an application consider open complaints and the Society should not include in its certificates of standing reference to open complaints.
[8] Mr McGuire relies upon the operational policy of the Ministry of Justice in relation to provider approvals as identifying the information which the Secretary can consider on an application. The policy provides:
The Secretary can consider the following information to determine if an applicant is a fit and proper person to provide legal aid or specified legal services:
– details of any conviction for an offence punishable by imprisonment;
– details of any complaint upheld against the applicant under the Lawyers and Conveyancers Act 2006; and
– details of any complaint upheld against the applicant under the [Legal Services] Act 2011 or the former Legal Services Act [2000].
[9] For the Society, Mr Collins characterised Mr McGuire’s reliance on the Ministry’s operational policy (as recorded at [6](d) above) as “perpetuating his rigid and unrealistic interpretation of the Regulations”. Mr Collins perceives there to be an inconsistency between what the Ministry states in the operational policy the Secretary may consider on an application and what the Regulations provide for.
[10] Mr Collins submits that for consistency with Regulation 5(1)(b), the Ministry’s operational policy at that point should accurately state (with emphasis added):5
The Secretary can consider the following information to determine if an applicant is a fit and proper person to provide legal aid or specified Legal Services:
– details of any conviction for an offence punishable by imprisonment;
5 Legal Services (Quality Assurance) Regulations 2011.
– the content of any Certificate of Standing issued by the New Zealand Law Society including information about complaints upheld against the applicant under the Lawyers and Conveyancers Act 2006; and
– details of any complaint upheld against the applicant under the Act or the former Act.
[11] Mr Collins submits that any other approach to the Secretary’s consideration, such as one that would prevent the Secretary considering open or unresolved complaints, is inconsistent with the Regulations.
[12] Mr Collins also refers to a note in the operational policy which states:
The Ministry may consult with the New Zealand Law Society, and will take into consideration whether the circumstances documented will affect the Lawyers’ Fitness to Practise as a legal aid provider.
[13] Mr Collins submits that the recorded approach to consultation is consistent with the Ministry (on behalf of the Secretary) being entitled to “go behind” any disclosure in a certificate of standing and to seek further information. He submits that the clear implication is that a certificate of standing may disclose matters relevant to a lawyer’s fitness to practise as a legal aid provider which might put the Ministry on notice of a need to enquire further.
The statement of claim
[14] Mr McGuire’s statement of claim is now in its second amended version. I refer to that document as the “statement of claim”. The statement of claim is structured so as to plead a single cause of action.
[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:
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:
23.2 That this certificate should be set aside;
23.3 That the current certificate be re-issued without any references to upheld complaints that have been set aside or pending complaints or that the current certificate fully complies with the guide in wording as ordered by the court.
[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 LCRO”.6
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 society 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);
6 “LCRO” refers to the Legal Complaints Review Officer.
(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 Act came into force, causing the plaintiff to suffer loss of income.
The Society’s defence
[22] The Society has filed an amended defence to the (second amended) statement of claim. 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 that the Society has no control or responsibility over the requirements.
[24] In the way in which the Society pursued summary judgment and Mr Collins developed the Society’s argument for summary judgment, 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. Alternatively, and to the extent that Mr McGuire pleads that the 30 January 2012 certificate of standing incorrectly referred to a charge of unsatisfactory conduct as “proven”, the Society denies that the charge in question was not proven, pleading that the proceeding in question resulted in a finding of unsatisfactory conduct, which Mr McGuire admitted.
[26] The Society also by its defence denied Mr McGuire’s allegation that the Society caused him damage by its conduct towards him. In the way the subject-matter has been developed in the Society’s summary judgment application and Mr Collins’ submissions, 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.
Competing summary judgment applications
[28] Mr McGuire issued this proceeding in April 2017 and at the time did not apply for summary judgment.
[29] The Society, in filing its defence within time, also applied for defendant’s summary judgment on the basis that the cause of action in Mr McGuire’s statement of claim could not succeed.
[30] Mr McGuire filed a notice of opposition to the Society’s summary judgment application. In the grounds of opposition, he identified two particular certificates (those dated 1 September 2016 and 22 December 2016 respectively) as being certificates which do not comply with Regulation 9C(2) of the Regulations because they include references to open complaints and/or a complaint where there was a finding of no further action by a Standards Committee.
[31] In June 2017, the Society amended its application for summary judgment to include an application for orders ruling inadmissible and redacting certain paragraphs in Mr McGuire’s affidavit in opposition.
[32] In November 2017, shortly after he filed an amended statement of claim, Mr McGuire filed an application for summary judgment on liability. The Society filed a notice of opposition to Mr McGuire’s summary judgment application and relied upon the affidavit evidence it had already filed.
Plaintiff’s summary judgment application - the principles
[33] The starting point for a plaintiff’s summary judgment application is r 12.2(1) High Court Rules, which requires that the plaintiff satisfy the Court that the defendant has no defence to any cause of action in the statement of claim or to a particular cause of action.
[34] I summarise the general principles which I adopt in relation to this application:
(a) Commonsense, flexibility and a sense of justice are required.7
7 Haines v Carter [2001] 2 NZLR 167 (CA) at [97].
(b) The onus is on the plaintiff seeking summary judgment to show that there is no arguable defence. The Court must be left without any real doubt or uncertainty on the matter.8
(c) The Court will not hesitate to decide questions of law where appropriate.9
(d) The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements and affidavits.10
(e) In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to examine and reject spurious defences or plainly contrived factual conflicts. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or other statements, or inherently improbable.11
(f) In assessing a defence the Court will look for appropriate particulars and a reasonable level of detailed substantiation – the defendant is under an obligation to lay a proper foundation for the defence in the affidavits filed in support of the Notice of Opposition.12
(g) In weighing these matters, the Court will take a robust approach and enter judgment even where there may be differences on certain factual matters if the lack of a tenable defence is plain on the material before the Court.13
(h) The need for judicial caution in summary judgment applications has to be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case. Where
8 Pemberton v Chappell [1986] NZCA 112; [1987] 1 NZLR 1 (CA).
9 European Asian Bank AG v Punjab & Sind Bank [1983] 2 All ER 508 (CA) at 516.
10 Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21 (SC).
11 Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC).
12 Middleditch v NZ Hotel Investments Ltd (1992) 5 PRNZ 392 (CA).
13 Jowada Holdings Ltd v Cullen Investments Ltd CA248/02, 5 June 2003 at [28].
a last-minute, unsubstantiated defence is raised and an adjournment would be required, a robust approach may be required for the protection of the integrity of the summary judgment process.14
(i) Once the Court is satisfied that there is no defence, the Court retains a discretion to refuse summary judgment but does so in the context of the general purpose of the High Court Rules which provide for the just, speedy and inexpensive determination of proceedings.15
Defendant’s summary judgment application - the principles
[35] The starting point for a defendant’s summary judgment application is r 12.2(2) High Court Rules, which requires the defendant satisfy the Court that none of the causes of action in the statement of claim can succeed.
[36] I summarise the general principles which I adopt in relation to the application:
(a) The onus is on the defendant seeking summary judgment to show that none of the plaintiff’s causes of action can succeed. The Court must be left without any real doubt or uncertainty on the matter.
(b) The Court will not hesitate to decide questions of law where appropriate.
(c) The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements and affidavits.
(d) In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to examine and reject spurious defences or plainly contrived factual conflicts. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or other statements, or inherently improbable.
14 Bilbie Dymock Corporation Ltd v Patel & Bajaj (1987) 1 PRNZ 84 (CA).
15 Pemberton v Chappell, above n 8.
(e) In weighing these matters, the Court will take a robust approach and enter judgment even where there may be differences on certain factual matters if the lack of a tenable defence is plain on the material before the Court.
(f) Once the Court is satisfied that there is no defence, the Court retains a discretion to refuse summary judgment but does so in the context of the general purpose of the High Court Rules which provide for the just, speedy and inexpensive determination of proceedings.
Ingredients of the plaintiff’s cause of action
[37] To succeed here, there needs to be on Mr McGuire’s part at least an arguable claim (to defeat the Society’s summary judgment application) or a claim which is beyond argument (to succeed on his own summary judgment application). The elements to be considered are:
(a) The existence of a duty owed by the Society to Mr McGuire;
(b) A breach of that duty;
(c) Damage caused to Mr McGuire through the breach.
A duty
Mr McGuire’s pleadings and submissions
[38] Mr McGuire’s statement of claim contains a single set of allegations as summarised at [14] – [21] above. The statement of claim does not identify separate causes of action.
[39] In his written submissions, Mr McGuire stated that “two causes of action are pleaded against the defendant”. He first referred to his description of the cause of action in his summary judgment application in which he referred to:
Such cause of action being a breach or breaches of Regulations 5 or 9C or both of the Legal Services (Quality Assurance) Regulations 2011.
In other words, Mr McGuire was identifying a cause of action for breach of statutory duty through providing him with “incorrect certificates”.
[40] In his written submissions (but not in his application of summary judgment or expressly in his statement of claim) Mr McGuire identifies as a second or alternative cause of action the Society’s failure to provide him with correct certificates in a situation where Mr McGuire had paid for the service – a breach he characterised in oral submissions as a breach of contract.
[41] As the pleadings in the statement of claim could be taken as invoking either cause of action, I will examine Mr McGuire’s underlying allegations which would be central to both.
A duty under Regulation 5 to exclude reference to open complaints?
[42] Mr McGuire’s pleadings and submissions focus on Regulations 5 and 9C (the provisions of which are set out at [4] above).
[43] It is Mr McGuire’s submission that a certificate of standing, if it is to comply with Regulation 5, is required to include information as to complaints upheld against the applicant but is required to exclude details of open complaints or incomplete disciplinary proceedings.
[44] Mr Collins submits, to the contrary, that the wording of Regulation 5 is not prescriptive or definitive of the content of a certificate of standing. He submits that the Regulation states only what must be provided and included.
[45] Neither Mr Collins nor Mr McGuire referred to any authority in relation to the use of the words “include or “including”.
[46] The primary meaning of the verb “include” is “to comprise as a part, contain”.16
16 The Chambers Dictionary, (11th ed 2008).
[47] The term “including” is frequently found in a statutory context in interpretation or definition provisions. In that context, Bryan Garner in his dictionary provides this introduction to the word “including”:17
... it should not be used to introduce an exhaustive list, for it implies that the list is only partial. In the words of one federal court, “It is hornbook law that the use of the word ‘including’ indicates that the specified list ... is illustrative not exclusive.18
[48] The very use of the word “including” in Regulation 5 is the strongest indication that the subject-matter which follows (information about upheld complaints) does not represent the exclusive information which may be provided.
[49] It is then necessary to consider the broader text of Regulation 5.19 Context may require an interpretation different to the natural meaning. Such was recognised by Sachs J in Commissioners of Customs and Excise v Savoy Hotel Ltd, when his Lordship observed:20
“Including” is a word to which parliamentary draftsmen seem considerably addicted: one reason for this may be that in law it can have, according to its context, not only one or other of simple but in essence quite differing effects (for instance, in relation to the words that follow it may be found to have been used simply to enlarge, to limit, to define exhaustively or for the avoidance of doubts to repeat the preceding word or phrase), but it may also be used to secure on one and the same occasion more than one of those effects, thus putting the draftsman, but not necessarily the court, in a happy position.
The subject-matter required to be included under Regulation 5
[50] Regulation 5 refers to a single matter (namely upheld complaints). Interpretation provisions sometimes provide that a word is to be interpreted to include a number of identified items or subject-matters. In relation to such provisions, the Courts may be required to recognise through common or other features of the listed items that there was a legislative intention to limit the overall subject-matter to some
17 Brian A Garner A Dictionary of Modern Legal Usage (2nd ed, 1995) 431 – 432.
18 Citing Puerto Rico Maritime Shipping Auth. v ICC (1981) 645 F.2v 1102(D.C.Cir),1112.
19 Interpretation Act 1999, s 5(1).
20 Commissioners of Customs and Excise v Savoy Hotel Ltd [1966] 1 WLR 948, QBD at 954.
common features. The subject-matter introduced by the word “including” may in such situations be taken to be either exclusive or limited.21
[51] Regulation 5 does not contain in its broader text any indication (such as through a list of related subject-matters) any suggestion that the details of upheld complaints required to be included in the certificate of standing represent the exclusive subject-matter.
[52] It would have been a simple matter for the drafter (instead of using the term “including” which has a settled and ordinary meaning) to specify, if Regulation 5 were intended to provide for a certificate of standing confined to specific matters, to state such requirement precisely.
[53] In construing Regulation 5, the Court must also have regard to the fact that the regulation provides that it is the New Zealand Law Society which is providing its certificate of standing. As regulator of the profession, the Society is in a unique position to comment on a lawyer’s standing. In the absence of clear wording, 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] Mr McGuire submits that the Court must continue the Society’s obligations in relation to a certificate of standing by reference to the Secretary’s obligation under Regulation 9C. The applicant must provide to the Secretary details of any convictions punishable by imprisonment and details of any upheld complaints.22
[55] Under Regulation 9C(3)(a) and (b) the Secretary must be satisfied that defined adverse effects will not result from any convictions or upheld complaints.
[56] Mr McGuire invites the Court to view the requirements under Regulation 9C as to what the Secretary must consider (in relation to convictions and upheld
21 The implied exclusion rule – traditionally stated in terms of the maxim expressio unius est exclusio alterius was employed in this context. R Carter (ed) Burrows & Carter Statute Law in New Zealand (5th ed, LexisNexis, 2015) at 135.
22 Legal Services (Quality Assurance) Regulations 2011, Regulation 9C(2).
complaints) as reinforcing a narrow interpretation of Regulation 5 which requires the Society’s certificate of standing to be limited to listed matters. Mr McGuire submits, not only is the Society precluded by Regulation 5 from including reference to open complaints in a certificate of standing, but also the Secretary is precluded from considering open complaints during the approval process.
[57] The Secretary is not a party to this proceeding. Accordingly, I have not heard submissions on behalf of the Secretary as to the Secretary’s powers and obligations. I will not be determining the correct construction of the Secretary’s powers and obligations under Regulation 9.
[58] I am satisfied that nothing which might be argued to expand or limit the Secretary’s considerations under Regulation 9 or otherwise should be taken to have limited the legitimate scope of the subject-matter of the Society’s certificate of standing under Regulation 5. In the absence of a requirement upon the Society to limit the scope of subject-matter, it does not affect the proper construction of Regulation 5 that there might be some argument as to the extent to which the Secretary may or may not have regard to certain matters which the Society considers appropriate to include in the certificate of standing.
[59] Accordingly, I am satisfied that the Society was not required by the Regulations to exclude from its certificate of standing in relation to Mr McGuire the details of any outstanding or unresolved complaints.
[60] In these circumstances, I do not address the additional question as to whether the regulatory duty, if it existed, was a duty which gave rise to a tortious remedy.
A contractual duty to include reference to open complaints?
[61] Mr McGuire alternatively submitted that the Society had a contractual duty to provide a certificate of standing which excluded reference to open complaints. Such alleged contractual duty is ill-defined in the statement of claim. A contract is said to arise from the fact that Mr McGuire paid the Society $30 on each occasion to provide certificates of standing.
[62] From Mr McGuire’s pleading, it appears that the asserted contractual duty would arise in this way:
(a) Up to 2016, the Society issued certificates which included details of open complaints;
(b) Mr McGuire, by his 2016 judicial review proceeding, sought a declaration that a certificate which contained reference to an open complaint was invalid;
(c) The judicial review proceeding was settled contractually by the settlement agreement dated 26 August 2016.
[63] Mr McGuire’s alternative claim against the Society in contract must be based on an implied (unpleaded) commitment by the Society to not include reference to open complaints in certificates of standing.
[64] Such an implied undertaking is not arguable. As pleaded by the Society, the parties attached to the settlement agreement a form of certificate of standing. The agreed form was an amended version of the impugned 28 July 2016 certificate. The agreed form included reference to open complaints. By the settlement agreement, the parties agreed that the Society’s prompt provision of the amended form (together with certain other steps which the Society took) would be in full and final settlement of the dispute, defined to include the judicial review proceeding. The Society, on 1 September 2016, issued a new certificate of standing which was in exactly the form agreed between the parties.
[65] It is not arguable upon the basis of the settlement agreement or surrounding dealings between the parties that the Society accepted a contractual obligation to provide after 26 August 2016 certificates of standing which included reference to open complaints.
Overall conclusion as to alleged duties
[66] Mr McGuire is unable to identify an arguable basis on which the Society had a duty (whether statutory or contractual) to provide to him certificates of standing which excluded reference to open complaints. The Society has established its entitlement to judgment on Mr McGuire’s claim. Mr McGuire’s cross-application for summary judgment as to liability must equally fail.
Other ingredients of the causes of action
[67] It follows that, in the absence of the duties asserted by Mr McGuire, the Society’s conduct has not amounted to a breach of duties of the nature alleged.
[68] It is unnecessary that I consider further the alternative defence of the Society by which the Society denied that any breach was the cause of any damage suffered by Mr McGuire.
[69] Costs must follow the event on both the Society’s application and Mr McGuire’s cross-application, and proceeding as a whole.
Orders
[70] I order:
(a) There is judgment for the defendant upon the plaintiff’s claim.
(b) The plaintiff’s application for summary judgment is dismissed.
(c) The plaintiff is to pay to the defendant costs on a 2B basis, together with disbursements to be fixed by the Registrar, in relation to the claim and the interlocutory applications.
Associate Judge Osborne
P N Collins, Barrister, Auckland Copy to: J J McGuire
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