MCGUIRE v NEW ZEALAND LAW SOCIETY [2019] NZCA 433

MCGUIRE v NEW ZEALAND LAW SOCIETY [2019] NZCA 433 [16 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA308/2018[2019] NZCA 433BETWEEN JEREMY JAMES MCGUIREAppellantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 2 September 2019Court: Collins, Wylie and Ellis JJCounsel: Appellant in personP N Collins for RespondentJudgment: 16 September 2019 at 11.30 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is granted.B The appeal is dismissed.C The appellant is to pay to the respondent costs calculated for a standardappeal 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 JudgeOsborne (as he then was) in the High Court at Wellington on 8 May 2018.11 McGuire v New Zealand Law Society [2018] NZHC 983.[2] Mr McGuire had commenced proceedings against the New Zealand LawSociety (the Society). The proceedings challenged a number of certificates of standingthat had been issued by the Society to Mr McGuire, and which Mr McGuire wasrequired to provide to the Secretary for Justice (the Secretary), in order to obtainapproval to provide legal aid services. The certificates referred to "open complaints"made against Mr McGuire.2 Mr McGuire alleged that this precluded him fromapplying to the Secretary for Justice for approval as a legal aid provider, and he soughtdamages from the Society as a consequence.[3] The Society applied for summary judgment against Mr McGuire, on the basisthat 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 amendedstatement 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 contendedthe Society had a duty to provide Mr McGuire with certificates of standing whichexcluded open complaints.3 He dismissed Mr McGuire's application for summaryjudgment 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 relevantprovisions in the Legal Services (Quality Assurance) Regulations 2011(the Regulations) and that the various certificates issued were invalid. He says thatthe Associate Judge was wrong both to grant summary judgment against him, and todismiss his application for summary judgment as to liability.2 Open complaints are uncompleted complaints that had not been determined at the time eachcertificate was issued, or own motion investigations under s 130(c) of the Lawyers andConveyancers Act 2006.3 McGuire v New Zealand Law Society, above n 1, at [66].Further evidence[7] Mr McGuire belatedly sought leave to adduce further evidence — namely anaffidavit from him dated 13 August 2019 which annexed an open complaint madeagainst him in July 2017.[8] There is nothing fresh about this evidence. It could with reasonable diligencehave been produced at the hearing before Associate Judge Osborne. Nor are there anyexceptional or compelling circumstances favouring its admission. NeverthelessMr Collins, for the Society, accepted that there was no prejudice to his client inallowing Mr McGuire to adduce the additional evidence and on that basis, we grantleave.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 practisedinitially 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 toprovide legal aid services since about 2010. He wishes to regain status as a providerof legal aid services.[11] Mr McGuire has faced a number of professional complaints over the years, andsome of these have resulted in adverse findings by various Standards Committeesestablished by the Society as part of its complaints service. He has challengeda number of these findings and has achieved a reasonable measure of success inthis regard. He has also challenged a number of the Secretary's decisions declining toapprove him as a legal aid services provider.44 The litigation background was discussed by William Young J in a recent decision of the SupremeCourt, see McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [13]–[28].[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.5Any application for approval must be made to the Secretary,6 and an applicant lawyermust provide to the Secretary a certified copy of a certificate of standing issued bythe Society.7 The Regulations require that a certificate of standing must provideevidence of the applicant lawyer's current practising certificate and "includeinformation about any complaints upheld against the applicant" underthe Lawyers and Conveyancers Act 2006 (the LCA).8 They also require that anapplicant satisfy the Secretary of his or her fitness and propriety.9[13] The Society is the regulator of the legal profession in New Zealand pursuantto the LCA. In that capacity it has issued a number of certificates of standing toMr 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 dated30 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 includedinformation considered to be accurate by the Society at the time of issue, including:(a) confirmation that Mr McGuire held a current practising certificate asa barrister and solicitor;(b) brief detail of disciplinary rulings made against Mr McGuire by eitherthe New Zealand Lawyers and Conveyancers Disciplinary Tribunal orStandards Committees, including references to any reviews or appealscommenced but not determined;(c) references to any open complaints and own motion investigations underway at the time each certificate was issued, and to any complaints that5 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).had been dismissed by a Standards Committee but were under reviewby a Legal Complaints Review Officer; and(d) confirmation that Mr McGuire was considered to be "of goodstanding".[15] The certificates were not in identical terms.[16] The affidavits filed both by Mr McGuire and the Society focused on morerecent 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 solicitorissued by the Society and is entitled to practise as a barrister and solicitoron own account.On 3 December 2012, a Standards Committee determined that there had beenunsatisfactory conduct, and ordered that Mr McGuire be censured, refundfees, 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 Committeeand decision of the LCRO were set aside. The High Court decision is currentlysubject to an appeal in respect of costs by Mr McGuire and a substantiveappeal by the Standards Committee.On 20 October 2011 Mr McGuire pleaded guilty to a charge of unsatisfactoryconduct before the NZ Lawyers and Conveyancers Disciplinary Tribunal.On review the High Court quashed the censure imposed by the Tribunal butotherwise upheld the decision of the Tribunal.On 1 August 2014, a Standards Committee determined that there had beenunsatisfactory conduct on the part of Mr McGuire. He was censured andordered to rectify an advertising error. This matter is currently subject tojudicial review proceedings brought by Mr McGuire. The StandardsCommittee has admitted that the decision was inadvertently made withoutthe required quorum and agreed to a consent order being issued by the Courtthat the finding be set aside. At the date of providing this certificate ofstanding Mr McGuire has not agreed to that course of action and is continuingwith his judicial review application.There are two open complaints currently before Standard Committees and onecomplaint where there was a finding of no further action by a StandardsCommittee that is currently on review with the LCRO.The New Zealand Law Society considers that Mr McGuire is of goodstanding.[17] Mr McGuire commenced judicial review proceedings against the Society inrespect of this certificate. The dispute went to mediation and the Society andMr McGuire settled the proceedings (and other proceedings) in August 2016.Following settlement, the Society wrote to Mr McGuire on 31 August 2016apologising for " the stress, inconvenience and embarrassment caused to you bythe errors which resulted in three censure orders for unsatisfactory conduct in 2012and 2014". The letter also stated " [t]he Society also regrets the deep distressthe disciplinary prosecution in 2008 to 2011 caused you".[18] Pursuant to the settlement, on 1 September 2016, the Society issuedMr McGuire with a further and truncated certificate of standing. It followed a draftwhich was attached to the settlement agreement. The relevant parts read as follows:[Mr McGuire] holds a current practising certificate as a barrister and solicitorissued by the New Zealand Law Society and is entitled to practise as a barristerand solicitor on own account.On 20 October 2011 Mr McGuire pleaded guilty to a charge of unsatisfactoryconduct.There are two open complaints currently before Standards Committees andone complaint where there was a finding of no further action by a StandardsCommittee that is currently on review with the LCRO.The New Zealand Law Society considers that Mr McGuire is of goodstanding.[19] On 15 September 2016, Mr McGuire sent this new certificate of standing tothe Ministry of Justice. The Ministry responded, saying that, because the opencomplaints were ongoing, the Secretary of Justice would not be able to assess whetherMr McGuire met the criteria for approval as a legal aid provider. Mr McGuireinter alia responded as follows: "If I can't even apply with this certificate then seriousquestions 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 firstapplication was declined. As I have stated before, it is impossible forthe Secretary of Justice to assess whether or not anyone meets the fit andproper person requirements when the complaint determinations areoutstanding.[20] The later certificates — those issued on 22 December 2016, 1 June 2017 and8 November 2017 — are similar to the 1 September 2016 certificate.[21] Mr McGuire has not made fresh application to the Secretary. Rather, hebrought 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 criticismof 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 andregulatory background, and a summary of the Society's issuing of certificatesof 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:15. On 30 January 2012 the [Society] issued a certificate tothe plaintiff. The certificate stated, inter alia, that"the Lawyers and Conveyancers Disciplinary Tribunal[the "tribunal"] found proven one charge of unsatisfactoryconduct that is not so gross wilful, or reckless as to amountto misconduct pursuant to section 241(b) of the Lawyersand Conveyancers Act 2006".16. The plaintiff has never had a charge of unsatisfactoryconduct proven against him by the tribunal.17. The plaintiff objected to the use of the word "proven" bythe defendant in this certificate.18. The defendant refused to change the wording inthe certificate after these objections were made.Society's certificate of standing dated 28 July 201610 McGuire v New Zealand Law Society, above n 1.[19] In the central portion of his statement of claim in which Mr McGuireidentifies his cause of action, Mr McGuire points specifically to one certificatedated 28 July 2016 (and other "variously issued certificates") which includedreferences to open complaints. The full pleading reads:19. The plaintiff has variously requested and paid forcertificates from the New Zealand Law Society since atleast 30 January 2012.20. Those certificates include one dated 28 July 2016.21. That certificate was subject to judicial review proceedingsthat are mentioned in the written apology fromthe New Zealand Law Society to the plaintiff dated31 August 2016 which apology is pleaded in full [annexedto the statement of claim as a Schedule].[20] Mr McGuire has exhibited to his affidavit evidence four certificatesof standing (dated 1 September 2016, 22 December 2016, 1 June 2017 and22 November 2017). Three expressly refer to "open complaints" orcomplaints currently before a Standards Committee. One certificate refers toa complaint "currently on review with the [Legal Complaints ReviewOfficer]".Aggravating facts[21] In the remaining paragraphs of the statement of claim, Mr McGuiremakes 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 ofstanding which referred to open complaints;(b) Mr McGuire issued judicial review proceedings concerningthe 28 July 2016 certificate because it referred to opencomplaints;(c) The judicial review proceeding (and other matters) were resolvedthrough a mediation. Following the mediation, the Societyapologised and paid compensation to Mr McGuire, partlybecause the [S]ociety had issued certificates that referred to opencomplaints;(d) Notwithstanding the mediation, apology and settlement,the Society has subsequently issued three further certificates thatincorrectly refer to open complaints;(e) The three subsequent certificates evidence bad faith andcontemptuous conduct on the part of the Society;(f) Mr McGuire has suffered severe stress and anxiety, loss ofquality of life, social stigma and embarrassment and loss ofprofessional reputation because of the Society contumeliousconduct. (Mr McGuire gives particulars of the effects on hispersonal life and on his professional reputation);(g) Since the Society's apology, the Society has continued to treatMr McGuire in "the same or similar manner" by:(i) failing to properly manage unmeritedcomplaints concerning him;(ii) initiating an own motion investigation abouthim and holding a hearing (while knowing thathe had not received notice because he wasoverseas);(iii) determining Mr McGuire should be censuredfor unsatisfactory conduct after the firstadverse determination of the samecomplaint was set aside by the High Courtand the redetermination involved amisunderstanding of the self-evident scope ofthe retainer between Mr McGuire and acomplainant;(h) The Society's prosecution of Mr McGuire for alleged misconductand the Society's certificate dated 30 January 2012 preventedhim from being able to apply for a legal aid contract afterthe [LSA] came into force, causing the plaintiff to suffer loss ofincome.[23] The Associate Judge then summarised the Society's defence as follows:[22] The Society for the most part admits the statutory and regulatoryregime as pleaded by Mr McGuire.[23] It admits that it is the issuer of certificates of standing. It pleads thatthe Secretary determines the requirements for all applications forapproval from the Secretary to provide legal services [and] thatthe Society has no control or responsibility over the requirements.[24] the Society essentially asserts it has not acted unlawfully or inbreach of any duty by including reference to open complaints in itscertificates of standing.[25] To the extent that Mr McGuire makes claims relating to or arising outof certificates of standing issued prior to and including the certificatedated 1 September 2016, the Society pleads by way of affirmativedefence that all such claims were settled and discharged as a term ofthe settlement agreement dated 26 August 2016 [26] the Society asserts that Mr McGuire has not adduced evidencewhich establishes arguably that the Society caused him damagethrough one or more of its certificates of standing. The Society saysthat Mr McGuire cannot establish causation because the Secretary hasdeclined one or more applications for legal service provider status forreasons other than that the certificates refer to open complaints.[27] The Society also pleads an alternate defence should the Court find itarguable that the Society's certificates of standing were objectionablebecause they contained reference to open complaints. The Societypleads that Mr McGuire is precluded from asserting any generalobjection on that basis having accepted as a term of the settlementagreement the form of the certificate of standing dated1 September 2016 which expressly included reference to opencomplaints.The Associate Judge's decision[24] Associate Judge Osborne discussed the regulatory regime applying to thosewho seek to provide legal aid services. He noted Mr McGuire's argument that he wascaught in a "loop"11 — namely that, at the time he made his various applications, hewas the subject of open complaints, that the Society included in its certificatesstatements to this effect and that the Ministry of Justice had advised him that anyapplication supported by a certificate of standing which contains a reference to an opencomplaint will not be considered by the Secretary until the complaint has beendetermined.[25] The Associate Judge summarised relevant principles applicable to summaryjudgment applications, both by plaintiffs and by defendants.12 He held that, tosucceed, there needed to be, on Mr McGuire's part, at least an arguable claim (to defeatthe Society's summary judgment application), or a claim which was beyond argument(to succeed on his own summary judgment application).13 He noted that, whileMr McGuire's statement of claim did not specify separate causes of action, in hiswritten submissions, Mr McGuire had relied on two causes of action — breach ofthe relevant Regulations (which the Associate Judge treated as being an allegation ofbreach of statutory duty) and failure to provide him with correct certificates, which hehad paid for (breach of contract).1411 McGuire v New Zealand Law Society, above n 1, at [5]–[7].12 At [33]–[36].13 At [37].14 At [38]–[41].[26] Associate Judge Osborne referred to the relevant regulations. He noted thatreg 5(1) requires that a certificate "include" information about any complaint upheldagainst an applicant. The Judge analysed the meaning of the word "include", notingthat its primary meaning is "to comprise as a part, contain".15 He then went on toconsider the word "including", noting that it is frequently found in interpretation ordefinition provisions. The Judge then considered the broader text of reg 5, observingthat 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 toobserve that the regulation does not contain, in its broader text, any indication orsuggestion that details of upheld complaints in certificates of standing "representthe exclusive subject-matter".16 He commented that if reg 5 was intended to confinecertificates of standing to specific matters, it would have been a simple matter forthe drafter to state such limitation precisely.17[27] The Judge noted that, as the regulator of the legal profession, the Society is ina unique position to comment on a lawyer's standing, and observed that in the absenceof clear wording, it would be an extraordinary regulatory provision which requiredthe Society to provide a certificate of standing but to exclude from it informationwhich the Society regarded as relevant to standing.18[28] The Judge went on to consider reg 9C, which requires an applicant to provideto the Secretary details of any convictions punishable by imprisonment and details ofany upheld complaints under the legal services legislation. The Associate Judge wassatisfied that "nothing which might be argued to expand or limit the Secretary'sconsiderations under [r]egulation 9 or otherwise should be taken to have limitedthe 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 Societyto limit the scope of the subject matter of a certificate of standing, reg 9C did not affectthe proper construction of reg 5.2015 At [46].16 At [51].17 At [52].18 At [53].19 At [58].20 At [55]–[58][29] The Judge concluded that the Society was not required by the regulations toexclude from a certificate of standing details of outstanding or unresolvedcomplaints.21 He considered that Mr McGuire had been unable to identify an arguablebasis to suggest that the Society had a duty, whether statutory or contractual, to provideMr McGuire with certificates of standing which excluded reference to opencomplaints, and that accordingly the Society was entitled to judgment onMr McGuire's claim.22 As a consequence, Mr McGuire's cross-application forsummary judgment as to liability also failed. Judgment was entered accordingly.23SubmissionsMr 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 complaintsin certificates. He drew attention to reg 9C(2), which provides that an applicant mustprovide details of any conviction or of any upheld complaint under the legal serviceslegislation. He noted that both regs 5 and 9C refer only to upheld complaints. He putit 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 inthe regulations.[31] Mr McGuire argued that the policy reason for favouring a narrow reading ofregs 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 thatthe resolution of such complaints can take some considerable time.[32] Mr McGuire also argued that, even if the inclusion of open complaints ispermissible 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 bestendeavours to provide reasonable information to the Secretary to at least21 At [59].22 At [66].23 At [70].clarify and elaborate on the references to any open complaint included in anycertificate.The Society's submissions[33] Mr Collins submitted that referring to open complaints in a certificate ofstanding is not precluded by the relevant regulations and that in context any suchreference is appropriate. He argued that the wording of reg 5 is neither prescriptivenor definitive of the content of certificates of standing. He put it to us that, asthe regulator of the legal profession, the Society is in a unique position to comment ona lawyer's standing. He reiterated the observations made by Associate Judge Osbornethat, in the absence of clear wording, it would be an extraordinary regulatory provisionthat requires the Society to provide a certificate of standing but to exclude informationwhich the Society regards as relevant to standing.[34] Mr Collins also drew our attention to the overriding responsibilities ofthe Secretary noting that he/she has to be satisfied about the fitness and propriety ofa lawyer applying for approval as a legal aid service provider. He submitted thatinformation about open complaints is a legitimate aspect of any inquiry undertaken inthis context. He argued that the protective purposes of the LSA and the Regulationswould be frustrated if Mr McGuire's interpretation is to be adopted — first, the Societywould be prevented from notifying the Secretary about disciplinary proceedings onfoot against the lawyer; secondly, the Society would not be able to refer to an ownmotion investigation because it is not a "complaint upheld"; thirdly, it would becontrary to the statutory purposes of quality control and public protection if the Societycould not alert the Secretary to a pending decision on a complaint just because it hasnot 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 copyof the applicant's certificate of standing issued by the New ZealandLaw Society. The certificate must—(a) provide evidence of the applicant's current practisingcertificate; and(b) include information about any complaints upheld againstthe applicant under the Lawyers and Conveyancers Act 2006.[36] At issue is whether the requirement to include information about anycomplaints upheld, precludes reference to open complaints.[37] As Associate Judge Osborne noted, the word "include" is an ordinary Englishword, in common parlance. The Judge referred to the Chambers Dictionary, notingthat the primary meaning of the verb "include" is "to comprise as a part, contain".24He adopted this meaning and we agree that that was appropriate. We note thatthe Shorter Oxford English Dictionary gives a similar meaning to the word"include":25Shut 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 sharein a right, privilege or activity;[38] The word "include" is often used in interpretation clauses in statutes, to enlargethe meaning of words or phrases occurring in the body of the statute. When it is soused, the words or phrases fall to be construed as extending not only to such things asthey signify according to their natural import, but also those things whichthe interpretation clause declares shall be included. The word "include" can also besusceptible to another construction. It can be equivalent to "mean and include", andin such cases it can afford an exhaustive meaning of the words with which it isassociated.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 ofstanding issued by the Society must contain (or comprise as a part, or enclose)information about any complaints upheld against an applicant lawyer. There is nothing24 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 alsoReynolds v Commissioner of Income Tax [1967] 1 AC 1 (PC); and Commissioners of Customs andExcise v Savoy Hotel Ltd [1966] 1 WLR 948 (QB) at 953.in the regulation to limit a certificate of standing to upheld complaints, and the broaderstatutory context — which we come to shortly — strongly suggests that certificates ofstanding are not required to be limited to the bare minimum of information set out inreg 5(1)(a) and (b).[40] We do not consider that reg 9C affects the position. Relevantly, that regulationreads as follows:9C Applicant must be fit and proper person(1) Every applicant must satisfy the Secretary that he or she is a fit andproper person to provide legal aid services or specified legal services.(2) For the purposes of subclause (1), an applicant must provide tothe Secretary—(b) details of any complaint upheld against the applicant underthe 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 orthe former Act, when considered individually or together,would not—(i) adversely affect the integrity of the legal servicessystem; or(ii) breach any practice standards; and(c) any complaints upheld against the applicant underthe Lawyers and Conveyancers Act 2006, when consideredindividually or together, would not—(i) adversely affect the integrity of the legal servicessystem; or(ii) breach any practice standards.[41] Regulation 9C compliments reg 5(1)(b). A certificate of standing must includeinformation 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 anyconvictions for offences punishable by imprisonment and of any complaints upheldagainst the applicant not only under the LSA but also under the former Legal ServicesAct 2000. There is also a general duty of candour on any lawyer applicant.27 The onusof satisfying the Secretary that he or she is a fit and proper person to provide legal aidservices or specified legal services rests on the applicant. An applicant should provideto 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 asrequired by reg 9C.[42] The Secretary, in deciding whether or not an applicant is a fit and proper personto provide legal aid services, or specified legal services, must inter alia be satisfiedthat any complaints upheld under the LSA or the predecessor Act, whether consideredindividually or together, will not adversely affect the integrity of the legal servicessystem or breach any practise standards. There is no equivalent provision dealing withcomplaints upheld, or still open, under the LCA. The fact of such complaints and anyadditional detail provided by an applicant lawyer will nevertheless informthe Secretary in deciding whether or not he or she is satisfied as required bythe legislation. In our judgment, the obligations imposed on lawyer applicants underreg 9C(2) and the duty of candour, go beyond the more narrow requirements ofreg 5(1)(b).[43] This leads to the statutory purpose.[44] The Court is required to ascertain the meaning of any enactment from its textand in light of its purpose.28 Part 3 of the LSA deals with the administration ofthe legal services system and legal aid is of course appropriated by Parliament. Thereare two issues at play — the maintenance of high quality legal aid services,29 andthe responsible stewardship of the public purse.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]; appealdismissed in McGuire v Secretary for Justice, above n 4.[45] To these ends:(a) Subpart 1 of part 3 of the LSA imposes various functions onthe Secretary. Inter alia, the Secretary has to "establish, maintain andpurchase high quality legal services in accordance with this Act".30The Secretary may determine the method or methods for delivery oflegal services.31 One of the methods of delivery includes entering intoagreements with individual lawyers, groups of lawyers or law firms forthe provision of legal services.32(b) Subpart 2 is concerned with quality assurance systems for providers,and ss 74 to 83 address the providers of legal services. This subpartalso applies to every person who applies for approval to provide legalaid services or specified legal services.33 A person must not provide alegal aid service or specified legal service unless that person isapproved by the Secretary to provide that service, and the personcomplies with the conditions, if any, of his or her approval.34Application for approval must be made to the Secretary,35 andthe Secretary can approve a person to provide one or more categoriesof legal aid service if the Secretary is satisfied that the person meetsthe criteria prescribed in regulations.36[46] Regulations 5– 9 set out the criteria to be met by an applicant. Regulation 5 isconcerned with professional entry requirements. We have set out the relevant parts ofthat regulation already. As also noted, under reg 9C, every applicant must satisfythe Secretary that he or she is a fit and proper person to provide legal aid services orspecified legal services.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.[47] The Secretary must provide reasons for his or her decision to give or declineapproval.37 Any approval must be in writing, must state the conditions if any ofthe approval, state the duration of the approval and state the particular legal aidservices or specified legal services that the provider is approved to provide.38[48] A lawyer providing legal aid services or specified legal services must stillcomply with his or her rights, obligations, responsibilities or duties as a lawyer.39[49] Relevantly, the Secretary must establish a performance review committee.40The function of that committee is to assess and advise the Secretary of any matterreferred 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 onproviders of legal aid services to ensure that the services are delivered in an effectiveand efficient manner.41 Claims made by providers can be examined,42 andthe Secretary may at any time audit any provider of legal aid services or specified legalservices. An audit may, without limitation, include an assessment of the provider'scompliance with practise standards, any conditions imposed on the provider'sapproval, the terms and conditions of the service contract and guidelines and policiesissued or made by the Secretary. An audit may also consider any substantial orunresolved complaints concerning the delivery of legal aid services or specified legalservices.43 A person who is subject to an examination or audit must cooperate withthe auditor.44[51] All of these various provisions are designed to ensure that lawyers seeking toprovide 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 costefficient way. The provisions are intended for the protection of the public, to ensure37 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).high standards of legal representation for legally aided persons, and the responsiblestewardship of public money through the provision of legal aid.[52] The protective purposes of the LSA would be frustrated if the strictinterpretation advanced by Mr McGuire is to be accepted. If the only disciplinarymatters the Society was entitled to record in certificates of standing were "complaintsupheld" against an applicant, the Society would be constrained from notifyingthe Secretary about other potentially relevant issues, for example, disciplinaryproceedings on foot, including proceedings before the New Zealand Lawyers andConveyancers and Disciplinary Tribunal, possibly involving serious charges (unlessverification of any information provided with the application or by an applicant issought by a delegated selection committee under regulation 11(2)(b)). Further,the Society could not refer to an own motion investigation into an applicant unders 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 potentiallyrelevant — for example, serious mental or physical issues which have led the Societyto intervene in a practitioner's legal practice.45[53] In our judgment, the Society, as the regulator of legal services, should beentitled to bring open complaints to the attention of the Secretary, because suchcomplaints may well be relevant to the proper performance by the Secretary of his orher statutory duties. The statutory scheme supports the provision by the Society of allrelevant information to the Secretary so that he or she can determine whether or not alawyer 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 anextraordinary statutory or regulatory provision which required the Society to providea certificate of standing but to exclude from it information which the Society itselfregarded as relevant to standing.[54] There is one other provision which assists. Regulation 27 concerns the way inwhich the conduct of a review by the Review Authority of a decision made bythe Secretary can proceed. Relevantly, reg 27(1)(c) provides as follows:45 Lawyers and Conveyancers Act 2006, s 163.(1) In conducting a review, the Review Authority—(c) may consider any statement, document, information, ormatter that in the Review Authority's opinion may assistthe Authority to deal effectively with the subject ofthe review, whether or not it would be admissible in a court oflaw.[55] It would be a surprising result if the Review Authority was able to considerrelevant material which the initial decision-maker — the Secretary — could notconsider because he or she was unaware of it, because, in turn, the Society could nottell the Secretary about it.[56] For completeness, Mr McGuire's oral submissions focused in part on hisassertion that the Secretary is wrongly refusing to either accept or consider hisapplications for approval while there are complaints outstanding. That is not an issueraised by Mr McGuire in his pleadings and it was not before us. We simply note thatthere is force in Mr Collins' submission that the proper course for Mr McGuire is toapply for approval as a legal aid provider and, if his application is refused, then to seekreview by the independent Review Authority.46Result[57] In our view, Associate Judge Osborne was correct to find that Mr McGuirecould not establish an arguable basis for his assertion that the Society was liable fordamages because it owed him a duty to exclude open complaints from its certificatesof standing. The Judge was also correct to find that Mr McGuire's application forsummary judgment failed, because of his findings on the Society's summary judgmentapplication.[58] The application for leave to adduce further evidence is granted.[59] The appeal is dismissed.46 Legal Services Act, s 82.[60] The Society is entitled to costs on the appeal. Mr McGuire is to pay the Societycosts calculated for a standard appeal on a band A basis, together with usualdisbursements.Solicitors:New Zealand Law Society, Wellington for Respondent