MCGUIRE v NEW ZEALAND LAW SOCIETY [2018] NZHC 983

MCGUIRE v NEW ZEALAND LAW SOCIETY [2018] NZHC 983 [8 May 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-000346[2018] NZHC 983BETWEEN JEREMY JAMES MCGUIREPlaintiffAND NEW ZEALAND LAW SOCIETYDefendantHearing: 22 March 2018Appearances: J J McGuire (plaintiff) in personP N Collins for defendantJudgment: 8 May 2018JUDGMENT OF ASSOCIATE JUDGE OSBORNEon summary judgment applicationIntroduction[1] Jeremy McGuire has been a practising lawyer. For some years, he hasunsuccessfully sought approval from the Secretary for Justice (the Secretary) toprovide 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 McGuireis required to provide to the Secretary a certificate of standing from the Society. TheSociety's practice is to include reference to open complaints in its certificates. MrMcGuire points to evidence suggesting that the Secretary (or the Secretary's SelectionCommittee), upon receipt of a certificate of standing which refers to open complaints,will not process the application while the complaint remains unresolved.[3] Mr McGuire's claim against the Society in this proceeding turns upon whetherthe Society was required (by the relevant regulatory regime) or agreed as a matter ofcontract to exclude from its certificates of standing any reference to open complaintsmade against Mr McGuire.The regulatory regime[4] In summary, the regulatory regime applying to an application to provide legalaid services provides:(a) A person must not provide specified legal aid services unless approvedby the Secretary to provide those services;1(b) An application for approval to provide legal aid services must be madeto the Secretary in the prescribed manner;2(c) The Secretary may approve a person to provide legal services if theSecretary is satisfied that the person meets the criteria prescribed in theregulations;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 afit and proper person to provide legal aid services or specifiedlegal services.(2) For the purposes of subclause (1), an applicant must provideto the Secretary—(a) details of any conviction of the applicant for anoffence punishable by imprisonment; and(b) details of any complaint upheld against the applicantunder the Act or the former Act.(3) In deciding whether an applicant meets the criterion insubclause (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 consideredindividually or together, would not adversely affect—(i) the applicant's relationship with a client whois an aided person; or(ii) the integrity of the legal services system; and(b) any complaints upheld against the applicant under theAct or the former Act, when considered individuallyor together, would not—(i) adversely affect the integrity of the legalservices system; or(ii) breach any practice standards; and(c) any complaints upheld against the applicant under theLawyers and Conveyancers Act 2006, whenconsidered individually or together, would not—(i) adversely affect the integrity of the legalservices 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 acertified copy of the applicant's certificate of standing issuedby the New Zealand Law Society. The certificate must—(a) provide evidence of the applicant's current practisingcertificate; and(b) include information about any complaints upheldagainst the applicant under the Lawyers andConveyancers Act 2006.The "loop" encountered by Mr McGuire[5] Mr McGuire says that he is caught in a loop which has prevented hisapplication from even being considered by the Secretary. He says that the loop comesabout on the facts of his case because:(a) Mr McGuire, at the time of making his various applications, has beenthe subject of open complaints (meaning complaints which have yet tobe heard by the appropriate disciplinary body); and(b) The Society's practice in such cases is to include in its certificate ofstanding a statement to the effect that "There are X open complaintscurrently before Standards Committees"; and(c) Mr McGuire has received information from the Ministry of Justice thatany application supported by a certificate of standing which containsan "open complaint" statement will not be processed by the Secretary'sSelection Committee until any open complaint has been determined.[6] Thus, the loop in which Mr McGuire asserts he finds himself operates in thismanner:(a) The Secretary's published policy in relation to the matters which he canconsider in determining if an applicant is a fit and proper person extendsonly to complaints which have been upheld and not to those which areopen;(b) The Society nonetheless provides to the Secretary, in its certificate ofstanding, information as to the existence of open complaints;(c) The Society in its certificate of Mr McGuire's standing issued on 8November 2017 stated that "there are three open complaints currentlybefore Standards Committees";(d) The practice of the Secretary's Selection Committee appears to be towithhold consideration of an application until an "open complaint" isdetermined;44 Mr McGuire relied on an email to him from an Adviser (Provider Services) of the Ministry dated15 November 2017 written in relation to the Society's 8 November 2011 certificate in which itwas stated: " I would have to advise it is unlikely we would approve an application. On the basisthere are still outstanding complaints which make it impossible for us to determine the fit andproper person criteria".(e) As the Society's certificates of standing are expressly stated to be validfor three months from the date of issue, there is a strong likelihood thatMr McGuire's applications to the Secretary for approval will not beprogressed during the life of the certificate of standing if the certificatecontains reference to an open complaint.[7] It is Mr McGuire's case that the loop should not exist because the Secretaryshould not on an application consider open complaints and the Society should notinclude in its certificates of standing reference to open complaints.[8] Mr McGuire relies upon the operational policy of the Ministry of Justice inrelation to provider approvals as identifying the information which the Secretary canconsider on an application. The policy provides:The Secretary can consider the following information to determine if anapplicant is a fit and proper person to provide legal aid or specified legalservices:– details of any conviction for an offence punishable by imprisonment;– details of any complaint upheld against the applicant under theLawyers and Conveyancers Act 2006; and– details of any complaint upheld against the applicant under the [LegalServices] Act 2011 or the former Legal Services Act [2000].[9] For the Society, Mr Collins characterised Mr McGuire's reliance on theMinistry's operational policy (as recorded at [6](d) above) as "perpetuating his rigidand unrealistic interpretation of the Regulations". Mr Collins perceives there to be aninconsistency between what the Ministry states in the operational policy the Secretarymay consider on an application and what the Regulations provide for.[10] Mr Collins submits that for consistency with Regulation 5(1)(b), the Ministry'soperational policy at that point should accurately state (with emphasis added):5The Secretary can consider the following information to determine if anapplicant is a fit and proper person to provide legal aid or specified LegalServices:– 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 ZealandLaw Society including information about complaints upheld againstthe applicant under the Lawyers and Conveyancers Act 2006; and– details of any complaint upheld against the applicant under the Act orthe 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 unresolvedcomplaints, 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 takeinto consideration whether the circumstances documented will affect theLawyers' Fitness to Practise as a legal aid provider.[13] Mr Collins submits that the recorded approach to consultation is consistentwith the Ministry (on behalf of the Secretary) being entitled to "go behind" anydisclosure in a certificate of standing and to seek further information. He submits thatthe clear implication is that a certificate of standing may disclose matters relevant to alawyer's fitness to practise as a legal aid provider which might put the Ministry onnotice of a need to enquire further.The statement of claimPleading of background[14] Mr McGuire's statement of claim is now in its second amended version. I referto that document as the "statement of claim". The statement of claim is structured soas to plead a single cause of action.[15] In the statement of claim, Mr McGuire sets out the legislative and regulatorybackground, and a summary of the Society's issuing of certificates of standing.[16] He pleads (which is admitted) that certificates of standing cost $30 (inclusiveof GST).[17] Mr McGuire then pleads what he asserts to be the material history, which Igroup under the following headings.2011 disciplinary proceeding (pleaded as "background")[18] Mr McGuire pleads:15. On 30 January 2012 the defendant issued a certificate to the plaintiff.The certificate stated, inter alia, that "the Lawyers and ConveyancersDisciplinary Tribunal [the "tribunal"] found proven one charge ofunsatisfactory conduct that is not so gross wilful, or reckless as toamount to misconduct pursuant to section 241(b) of the Lawyers andConveyancers Act 2006".16. The plaintiff has never had a charge of unsatisfactory conduct provenagainst him by the tribunal.17. The plaintiff objected to the use of the word "proven" by the defendantin this certificate.18. The defendant refused to change the wording in the certificate afterthese 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 identifieshis cause of action, Mr McGuire points specifically to one certificate dated 28 July2016 (and other "variously issued certificates") which included references to opencomplaints. The full pleading reads:19. The plaintiff has variously requested and paid for certificates from theNew Zealand Law Society since at least 30 January 2012.20. Those certificates include one dated 28 July 2016.21. That certificate was subject to judicial review proceedings that arementioned in the written apology from the New Zealand Law Societyto the plaintiff dated 31 August 2016 which apology is pleaded in full[annexed to the statement of claim as a Schedule].22. The judicial review proceedings involving that certificate were alsomentioned in a written settlement agreement between the parties.23. The judicial review proceedings sought three separate declaratoryorders:23. 1 That the 28 July 2016 certificate was invalid;23.2 That this certificate should be set aside;23.3 That the current certificate be re-issued without anyreferences to upheld complaints that have been set aside orpending complaints or that the current certificate fullycomplies with the guide in wording as ordered by the court.24. The "guide" was a reference to the defendant's web page that providedand provides information to practitioners on obtaining a certificate.25. The relevant guide in the judicial review proceedings had beenupdated on 20 January 2016.26. That guide provided that "the certificate of standing covers upheldcomplaints and disciplinary tribunal matters from 1 August 2008".27. The defendant has variously issued certificates to the plaintiff thathave included information and references to open complaints abouthim.28. All of the various certificates that refer to open complaints about theplaintiff resulted in the plaintiff paying the defendant for a service andproduct that he never received (a valid certificate).29. The plaintiff made two separate unsuccessful applications to theSecretary for approval to provide legal aid services each time using acertificate he paid the defendant to issue for those purposes thatincluded references to open complaints about the plaintiff.30. The plaintiff also sent two separate certificates to the Ministry ofJustice to check if they satisfied regulation 9C before an applicationto the Secretary for approval to provide legal aid services was madeby him.31. The Ministry of Justice advised the plaintiff that neither certificatesatisfied regulation 9C.32. The plaintiff did not apply to the Secretary for approval to providelegal aid services as a result.33. The plaintiff variously advised the defendant that the certificatesshould not mention open complaints.34. The plaintiff variously advised the defendant that he had sent thecertificates to the Ministry of Justice.35. The plaintiff will not and cannot apply to the Secretary for approvalto provide legal aid services because of the references to opencomplaints in the certificates.36. The certificates have caused and continue to cause damage and lossto the plaintiff as a consequence.[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 StandardsCommittee. One certificate refers to a complaint "currently on review with theLCRO".6Aggravating facts[21] In the remaining paragraphs of the statement of claim, Mr McGuire makesallegations under a heading "aggravating facts". There he pleads (and I summarise)that:(a) In 2016 and 2017, the Society issued a number of certificates ofstanding which referred to open complaints;(b) Mr McGuire issued judicial review proceedings concerning the 28 July2016 certificate because it referred to open complaints;(c) The judicial review proceeding (and other matters) were resolvedthrough a mediation. Following the mediation, the Society apologisedand paid compensation to Mr McGuire, partly because the society hadissued certificates that referred to open complaints;(d) Notwithstanding the mediation, apology and settlement, the Society hassubsequently issued three further certificates that incorrectly refer toopen complaints;(e) The three subsequent certificates evidence bad faith and contemptuousconduct on the part of the Society;(f) Mr McGuire has suffered severe stress and anxiety, loss of quality oflife, social stigma and embarrassment and loss of professionalreputation because of the Society contumelious conduct. (Mr McGuiregives particulars of the effects on his personal life and on hisprofessional reputation);6 "LCRO" refers to the Legal Complaints Review Officer.(g) Since the Society's apology, the Society has continued to treat MrMcGuire in "the same or similar manner" by:(i) failing to properly manage unmerited complaints concerninghim;(ii) initiating an own motion investigation about him and holding ahearing (while knowing that he had not received notice becausehe was overseas);(iii) determining Mr McGuire should be censured for unsatisfactoryconduct after the first adverse determination of the samecomplaint was set aside by the High Court and theredetermination involved a misunderstanding of the self-evidentscope of the retainer between Mr McGuire and a complainant;(h) The Society's prosecution of Mr McGuire for alleged misconduct andthe Society's certificate dated 30 January 2012 prevented him frombeing 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) statementof claim. The Society for the most part admits the statutory and regulatory regime aspleaded by Mr McGuire.[23] It admits that it is the issuer of certificates of standing. It pleads that theSecretary determines the requirements for all applications for approval from theSecretary to provide legal services that the Society has no control or responsibilityover the requirements.[24] In the way in which the Society pursued summary judgment and Mr Collinsdeveloped the Society's argument for summary judgment, the Society essentiallyasserts it has not acted unlawfully or in breach of any duty by including reference toopen complaints in its certificates of standing.[25] To the extent that Mr McGuire makes claims relating to or arising out ofcertificates of standing issued prior to and including the certificate dated 1 September2016, the Society pleads by way of affirmative defence that all such claims weresettled 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 2012certificate of standing incorrectly referred to a charge of unsatisfactory conduct as"proven", the Society denies that the charge in question was not proven, pleading thatthe proceeding in question resulted in a finding of unsatisfactory conduct, which MrMcGuire admitted.[26] The Society also by its defence denied Mr McGuire's allegation that theSociety caused him damage by its conduct towards him. In the way the subject-matterhas been developed in the Society's summary judgment application and Mr Collins'submissions, the Society asserts that Mr McGuire has not adduced evidence whichestablishes arguably that the Society caused him damage through one or more of itscertificates of standing. The Society says that Mr McGuire cannot establish causationbecause the Secretary has declined one or more applications for legal service providerstatus for reasons other than that the certificates refer to open complaints.[27] The Society also pleads an alternate defence should the Court find it arguablethat the Society's certificates of standing were objectionable because they containedreference to open complaints. The Society pleads that Mr McGuire is precluded fromasserting any general objection on that basis having accepted as a term of thesettlement agreement the form of the certificate of standing dated 1 September 2016which 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 applyfor summary judgment.[29] The Society, in filing its defence within time, also applied for defendant'ssummary judgment on the basis that the cause of action in Mr McGuire's statement ofclaim could not succeed.[30] Mr McGuire filed a notice of opposition to the Society's summary judgmentapplication. In the grounds of opposition, he identified two particular certificates(those dated 1 September 2016 and 22 December 2016 respectively) as beingcertificates which do not comply with Regulation 9C(2) of the Regulations becausethey include references to open complaints and/or a complaint where there was afinding of no further action by a Standards Committee.[31] In June 2017, the Society amended its application for summary judgment toinclude an application for orders ruling inadmissible and redacting certain paragraphsin Mr McGuire's affidavit in opposition.[32] In November 2017, shortly after he filed an amended statement of claim, MrMcGuire filed an application for summary judgment on liability. The Society filed anotice of opposition to Mr McGuire's summary judgment application and relied uponthe 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 defendanthas no defence to any cause of action in the statement of claim or to a particular causeof 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.77 Haines v Carter [2001] 2 NZLR 167 (CA) at [97].(b) The onus is on the plaintiff seeking summary judgment to show thatthere is no arguable defence. The Court must be left without any realdoubt or uncertainty on the matter.8(c) The Court will not hesitate to decide questions of law whereappropriate.9(d) The Court will not attempt to resolve genuine conflicts of evidence orto 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 plainlycontrived factual conflicts. It is not required to accept uncritically everystatement put before it, however equivocal, imprecise, inconsistent withundisputed contemporary documents or other statements, or inherentlyimprobable.11(f) In assessing a defence the Court will look for appropriate particularsand a reasonable level of detailed substantiation – the defendant isunder an obligation to lay a proper foundation for the defence in theaffidavits filed in support of the Notice of Opposition.12(g) In weighing these matters, the Court will take a robust approach andenter judgment even where there may be differences on certain factualmatters if the lack of a tenable defence is plain on the material beforethe Court.13(h) The need for judicial caution in summary judgment applications has tobe balanced with the appropriateness of a robust and realistic judicialattitude when that is called for by the particular facts of the case. Where8 Pemberton v Chappell [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 adjournmentwould be required, a robust approach may be required for the protectionof the integrity of the summary judgment process.14(i) Once the Court is satisfied that there is no defence, the Court retains adiscretion to refuse summary judgment but does so in the context of thegeneral purpose of the High Court Rules which provide for the just,speedy and inexpensive determination of proceedings.15Defendant'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 thecauses 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 thatnone of the plaintiff's causes of action can succeed. The Court must beleft without any real doubt or uncertainty on the matter.(b) The Court will not hesitate to decide questions of law whereappropriate.(c) The Court will not attempt to resolve genuine conflicts of evidence orto 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 plainlycontrived factual conflicts. It is not required to accept uncritically everystatement put before it, however equivocal, imprecise, inconsistent withundisputed contemporary documents or other statements, or inherentlyimprobable.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 andenter judgment even where there may be differences on certain factualmatters if the lack of a tenable defence is plain on the material beforethe Court.(f) Once the Court is satisfied that there is no defence, the Court retains adiscretion to refuse summary judgment but does so in the context of thegeneral 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 arguableclaim (to defeat the Society's summary judgment application) or a claim which isbeyond argument (to succeed on his own summary judgment application). Theelements 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 dutyMr McGuire's pleadings and submissions[38] Mr McGuire's statement of claim contains a single set of allegations assummarised at [14] – [21] above. The statement of claim does not identify separatecauses of action.[39] In his written submissions, Mr McGuire stated that "two causes of action arepleaded against the defendant". He first referred to his description of the cause ofaction in his summary judgment application in which he referred to:Such cause of action being a breach or breaches of Regulations 5 or 9C orboth of the Legal Services (Quality Assurance) Regulations 2011.In other words, Mr McGuire was identifying a cause of action for breach of statutoryduty through providing him with "incorrect certificates".[40] In his written submissions (but not in his application of summary judgment orexpressly in his statement of claim) Mr McGuire identifies as a second or alternativecause of action the Society's failure to provide him with correct certificates in asituation where Mr McGuire had paid for the service – a breach he characterised inoral submissions as a breach of contract.[41] As the pleadings in the statement of claim could be taken as invoking eithercause of action, I will examine Mr McGuire's underlying allegations which would becentral 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 (theprovisions of which are set out at [4] above).[43] It is Mr McGuire's submission that a certificate of standing, if it is to complywith Regulation 5, is required to include information as to complaints upheld againstthe applicant but is required to exclude details of open complaints or incompletedisciplinary proceedings.[44] Mr Collins submits, to the contrary, that the wording of Regulation 5 is notprescriptive or definitive of the content of a certificate of standing. He submits thatthe Regulation states only what must be provided and included.[45] Neither Mr Collins nor Mr McGuire referred to any authority in relation to theuse of the words "include or "including".[46] The primary meaning of the verb "include" is "to comprise as a part,contain".1616 The Chambers Dictionary, (11th ed 2008).[47] The term "including" is frequently found in a statutory context in interpretationor definition provisions. In that context, Bryan Garner in his dictionary provides thisintroduction to the word "including":17 it should not be used to introduce an exhaustive list, for it implies that thelist is only partial. In the words of one federal court, "It is hornbook law thatthe use of the word 'including' indicates that the specified list is illustrativenot exclusive.18[48] The very use of the word "including" in Regulation 5 is the strongest indicationthat the subject-matter which follows (information about upheld complaints) does notrepresent the exclusive information which may be provided.[49] It is then necessary to consider the broader text of Regulation 5.19 Context mayrequire an interpretation different to the natural meaning. Such was recognised bySachs J in Commissioners of Customs and Excise v Savoy Hotel Ltd, when hisLordship observed:20"Including" is a word to which parliamentary draftsmen seem considerablyaddicted: one reason for this may be that in law it can have, according to itscontext, 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 beenused simply to enlarge, to limit, to define exhaustively or for the avoidance ofdoubts to repeat the preceding word or phrase), but it may also be used tosecure on one and the same occasion more than one of those effects, thusputting 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 includea number of identified items or subject-matters. In relation to such provisions, theCourts may be required to recognise through common or other features of the listeditems that there was a legislative intention to limit the overall subject-matter to some17 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 suchsituations be taken to be either exclusive or limited.21[51] Regulation 5 does not contain in its broader text any indication (such asthrough a list of related subject-matters) any suggestion that the details of upheldcomplaints required to be included in the certificate of standing represent theexclusive 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 wereintended to provide for a certificate of standing confined to specific matters, to statesuch requirement precisely.[53] In construing Regulation 5, the Court must also have regard to the fact that theregulation provides that it is the New Zealand Law Society which is providing itscertificate of standing. As regulator of the profession, the Society is in a uniqueposition to comment on a lawyer's standing. In the absence of clear wording, it wouldbe an extraordinary statutory or regulatory provision which required the Society toprovide a certificate of standing but to exclude from it information which the Societyitself regarded as relevant to standing.[54] Mr McGuire submits that the Court must continue the Society's obligations inrelation to a certificate of standing by reference to the Secretary's obligation underRegulation 9C. The applicant must provide to the Secretary details of any convictionspunishable by imprisonment and details of any upheld complaints.22[55] Under Regulation 9C(3)(a) and (b) the Secretary must be satisfied that definedadverse effects will not result from any convictions or upheld complaints.[56] Mr McGuire invites the Court to view the requirements under Regulation 9Cas to what the Secretary must consider (in relation to convictions and upheld21 The implied exclusion rule – traditionally stated in terms of the maxim expressio unius est exclusioalterius was employed in this context. R Carter (ed) Burrows & Carter Statute Law in NewZealand (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 theSociety'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 opencomplaints in a certificate of standing, but also the Secretary is precluded fromconsidering open complaints during the approval process.[57] The Secretary is not a party to this proceeding. Accordingly, I have not heardsubmissions on behalf of the Secretary as to the Secretary's powers and obligations. Iwill not be determining the correct construction of the Secretary's powers andobligations under Regulation 9.[58] I am satisfied that nothing which might be argued to expand or limit theSecretary's considerations under Regulation 9 or otherwise should be taken to havelimited the legitimate scope of the subject-matter of the Society's certificate ofstanding under Regulation 5. In the absence of a requirement upon the Society to limitthe scope of subject-matter, it does not affect the proper construction of Regulation 5that there might be some argument as to the extent to which the Secretary may or maynot have regard to certain matters which the Society considers appropriate to includein the certificate of standing.[59] Accordingly, I am satisfied that the Society was not required by theRegulations to exclude from its certificate of standing in relation to Mr McGuire thedetails of any outstanding or unresolved complaints.[60] In these circumstances, I do not address the additional question as to whetherthe 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 toprovide a certificate of standing which excluded reference to open complaints. Suchalleged contractual duty is ill-defined in the statement of claim. A contract is said toarise from the fact that Mr McGuire paid the Society $30 on each occasion to providecertificates of standing.[62] From Mr McGuire's pleading, it appears that the asserted contractual dutywould arise in this way:(a) Up to 2016, the Society issued certificates which included details ofopen complaints;(b) Mr McGuire, by his 2016 judicial review proceeding, sought adeclaration that a certificate which contained reference to an opencomplaint was invalid;(c) The judicial review proceeding was settled contractually by thesettlement agreement dated 26 August 2016.[63] Mr McGuire's alternative claim against the Society in contract must be basedon an implied (unpleaded) commitment by the Society to not include reference to opencomplaints in certificates of standing.[64] Such an implied undertaking is not arguable. As pleaded by the Society, theparties attached to the settlement agreement a form of certificate of standing. Theagreed form was an amended version of the impugned 28 July 2016 certificate. Theagreed form included reference to open complaints. By the settlement agreement, theparties agreed that the Society's prompt provision of the amended form (together withcertain other steps which the Society took) would be in full and final settlement of thedispute, defined to include the judicial review proceeding. The Society, on 1September 2016, issued a new certificate of standing which was in exactly the formagreed between the parties.[65] It is not arguable upon the basis of the settlement agreement or surroundingdealings between the parties that the Society accepted a contractual obligation toprovide after 26 August 2016 certificates of standing which included reference to opencomplaints.Overall conclusion as to alleged duties[66] Mr McGuire is unable to identify an arguable basis on which the Society hada duty (whether statutory or contractual) to provide to him certificates of standingwhich excluded reference to open complaints. The Society has established itsentitlement to judgment on Mr McGuire's claim. Mr McGuire's cross-application forsummary 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, theSociety'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 Societyby which the Society denied that any breach was the cause of any damage suffered byMr McGuire.[69] Costs must follow the event on both the Society's application and MrMcGuire'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, togetherwith disbursements to be fixed by the Registrar, in relation to the claimand the interlocutory applications.Associate Judge OsborneSolicitors:P N Collins, Barrister, AucklandCopy to: J J McGuire