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Reay v Attorney-General [2019] NZCA 475 (2 October 2019)

Last Updated: 9 October 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA17/2019
[2019] NZCA 475



BETWEEN

ALAN MICHAEL REAY
Appellant


AND

ATTORNEY-GENERAL
First Respondent


AND

INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED
Second Respondent

Hearing:

20 June 2019

Court:

Miller, Gilbert and Stevens JJ

Counsel:

N S Gedye QC and W J Palmer for Appellant
K G Stephen and IMG Clarke for First Respondent
HJP Wilson and M J Neill for Second Respondent

Judgment:

2 October 2019 at 3.00 pm


JUDGMENT OF THE COURT

  1. The appeal is dismissed.
  2. The appellant must pay the first respondent costs for a standard appeal on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] The question in this appeal is whether the Institution of Professional Engineers New Zealand (IPENZ), an incorporated society, may continue disciplinary proceedings against a member who resigned before a complaint against him was determined.[1]

Background

[2] In 1986 Dr Alan Reay’s engineering firm designed the Canterbury Television (CTV) building, which collapsed with loss of life during the Christchurch earthquake of 22 February 2011. He was the firm’s sole principal and a very experienced engineer. Much of the structural design work was done by an employee, David Harding, an engineer who is said to have been insufficiently experienced with multi-storey buildings and inadequately supervised. We note that Dr Reay denies these claims. The building’s collapse has been attributed to defective structural design.[2]
[3] Dr Reay was a member of IPENZ when the building was designed, as was Mr Harding. In December 2012 a complaint was brought against Dr Reay by a fellow IPENZ member, Michael Stannard.[3] IPENZ began an investigation under its rules. A complaints research officer recommended that the complaint go to an Investigating Committee. Dr Reay appeared before the committee, which duly prepared a draft recommendation that the complaint be referred to a Disciplinary Committee. On 28 February 2014, before the Committee’s draft recommendation was circulated, Dr Reay resigned from IPENZ. He denies that he did so from fear of the disciplinary process.
[4] IPENZ accepted Dr Reay’s resignation. It took advice, which was that there was now no available basis on which to discipline Dr Reay and for that reason a Disciplinary Committee would have to dismiss the complaint. The advice was accepted and the complaint was dismissed accordingly on 9 April 2014. Dr Reay discontinued proceedings he had brought seeking a declaration that IPENZ lacked jurisdiction to discipline him.
[5] In the meantime, disciplinary proceedings had been brought against Mr Harding, who also resigned and claimed that he could not now be disciplined. He sought judicial review when IPENZ rejected his claim. We have not been told why IPENZ took apparently incompatible positions in the disciplinary proceedings against Dr Reay and Mr Harding.
[6] On 17 September 2014 Mander J dismissed Mr Harding’s application for judicial review, concluding that the resignation did not compel IPENZ to discontinue its disciplinary proceedings.[4] It sufficed that Mr Harding was a member at the time of the relevant conduct and when the complaint was made. A Disciplinary Committee later declared that Mr Harding had breached IPENZ’s Code of Ethics, which was grounds for discipline, but imposed no penalties.[5]
[7] The Attorney-General invited IPENZ to consider its decision in Dr Reay’s case in light of Mander J’s decision. It declined, reasoning that it was functus officio. The Attorney-General then moved for judicial review, which was granted by Collins J in the judgment under appeal.[6] The Judge found that the Attorney had standing and that IPENZ had dismissed the complaint through an error of law.[7] Contrary to the advice on which IPENZ had relied, a “Member” under the rules includes a member who resigns before disciplinary proceedings against him are concluded.[8] He identified a public interest in allowing IPENZ to review Dr Reay’s conduct in relation to the CTV building but left it to IPENZ to decide whether it wished to prosecute the complaint.[9] He granted declarations accordingly. They were:[10]

(1) The Institution has jurisdiction to investigate, hear and determine Mr Stannard’s complaint.

(2) The Investigating Committee was wrong in law to dismiss Mr Stannard’s complaint.

The appeal

[8] The first question on appeal is whether the term “Member” only means a current member. The second question is whether relief ought to be declined on discretionary grounds.
[9] Dr Reay’s case is that this is a question of private contractual rights between an incorporated society and its former member. The definition of “Member” is clear; it means current members only. When considering this question Collins J erred by taking into account contextual material and by referring to extrinsic material which was not mentioned in argument. Mr Harding’s case was also wrongly decided by Mander J for the same reasons.
[10] Dr Reay says that Collins J was also wrong to grant relief to the Attorney‑General. The fact that the CTV building collapse is a matter of interest to the public was irrelevant to the narrow issue of rule interpretation before the Court. Relief also ought to have been declined because public accountability has already been exacted: a Royal Commission dealt with the reasons for the building collapse and MBIE and the Police also investigated it.[11] There was no public interest in the only remaining question: the extent of Dr Reay’s professional responsibility. The complaint is also stale — the conduct under review happened in 1986 — and there has been much delay since Mr Stannard lodged it in 2012. The consequences for Dr Reay will be disproportionate to his involvement; he spent three and a half hours on the project while Mr Harding spent 304.
[11] We turn to the rules and regulations of IPENZ that govern the disciplinary process in this case.

IPENZ

[12] IPENZ is an incorporated society which was registered as such in 1914. In 1986 its rules (the 1986 Rules) provided that it existed to advance the science and profession of engineering.[12] The rules in effect at the time of the complaint in 2012 (the Rules) elaborated somewhat upon this objective. They provided that the objective of IPENZ was to advance “the professions of engineering” by, among other things, contributing to the development of good engineering practice, recognising, regulating and supporting those demonstrating competence in the engineering professions, and contributing to the needs of the community.[13]
[13] In 1986 membership was open to engineers holding academic or practical qualifications, practical experience and positions of responsibility. The then current 1986 Rules set standards of professional conduct and provided for a Code of Ethics:

SECTION 18

PROFESSIONAL CONDUCT AND DISCIPLINE

...

18.2 Each member shall so conduct himself as to uphold the dignity, standing and reputation of the Institution and of the profession and with due regard to the public interest, especially in matters of health and safety. Each member, at his level of engineering activity, shall exercise his professional or technical skill and judgement at least according to the normally accepted standards of the profession and to the best of his ability, and shall discharge his professional and technical responsibilities with integrity.

18.3 The Council shall prescribe Regulations for the observance of the foregoing professional standards and shall prescribe a Code of Ethics and Code of Professional Practice for Consulting Engineers both of which Codes shall have the force of Regulations and shall be made known to members in the manner prescribed in Section 24 of the Rules of the Institution.

[14] It has never been necessary to register as an engineer, a fact which may reflect diverse forms of specialisation and fields of practice. Nor has it been necessary for practising engineers to join a professional organisation such as IPENZ. But legislation has long provided for registration. Under the Engineers Registration Act 1924 (the 1924 Act) a Registration Board of six persons was set up to administer a voluntary registration system. Three of the Board members were appointed on the recommendation of IPENZ,[14] but IPENZ itself did not enjoy any regulatory functions or powers under the legislation. Engineers might be removed from the register for improper conduct or for committing any offence punishable by imprisonment or dishonouring themselves in the public estimation.[15]
[15] IPENZ first published a Code of Ethics for its members in 1964.[16] It had previously regulated the behaviour of members through its rules. For example, rules in effect in 1963 provided that members must order their conduct so as to uphold the dignity, standing and reputation of the profession.[17]
[16] Dr Reay joined IPENZ in 1970. He later became an IPENZ Fellow.
[17] At the time the CTV building was being designed, the Code of Ethics referred to r 18.2, which we have quoted above, and went on to prescribe a number of obligations, including:[18]
  1. Each member shall exercise his professional and technical skill and judgement to the best of his ability and shall discharge his professional and technical responsibilities with integrity.

It is against this version of the Code of Ethics and the standard of behaviour prescribed by r 18.2 that Dr Reay’s conduct would be measured.

[18] The Chartered Professional Engineers of New Zealand Act 2002 (CPENZ Act) replaced the 1924 Act. It provides the current registration regime for engineers in New Zealand, it establishes the title of “chartered professional engineer” as a mark of quality, and administers a code of ethics and professional disciplinary regime.[19] Registration is necessary if an engineer is to perform some functions under the Building Act 2004.[20] IPENZ also serves as the Registration Authority under the CPENZ Act,[21] charged with administering the registration system, establishing a code of ethics and disciplinary processes, and deciding complaints about chartered professional engineers.[22]
[19] Dr Reay became a chartered professional engineer in 2011, but it is not in that capacity that he would be disciplined for what he did in 1986. He would be disciplined as a member of IPENZ, a status that he held both in 1986 and in 2012. The IPENZ disciplinary process parallels that for a chartered professional engineer because its regulations were established by IPENZ in 2010 in its capacity as the Registration Authority under the CPENZ Act.
[20] Members agree on admission to adhere to the rules, regulations and code of ethics. A definitions provision in the Rules as they stood in 2012, r 2.1(b), specified that:

RULE 2 INTERPRETATIONS

2.1 Definitions

...

(b) “Member” means a person who holds any current class of membership as defined in Rule 6, unless a contrary interpretation is specified.

It will be seen that a Member is “a person who holds” any current class of membership, “unless any contrary intention is specified”. Dr Reay was a Fellow, which is one of the classes of membership in r 6. And there is a proviso: “Member” means a person who holds a current class of membership unless a contrary intention is specified.

[21] Some Rules and regulations contemplate that certain obligations or liabilities attach to former members following resignation or expulsion. Notably:
[22] Rule 11 deals with discipline. It provides:
  1. RULE 11 COMPLAINTS ON CONDUCT OF MEMBERS AND DISCIPLINE

11.1 The Board must prescribe Regulations (the “Disciplinary Regulations”) that:

a. Set out the procedures for the investigation, hearing and determination of complaints against Members in respect of Rule 4.

b. Appoint and set out the powers of Complaints Research Officers, Investigating Committees, Disciplinary Committees, Appeal Committees and Chairs of these Committees of the Institution.

c. Allow that the Chair of the Disciplinary Committee may rule that a complaint be dealt with immediately by a Disciplinary Committee provided that in relation to the complaint one or more of the following grounds applies:

(i) The Member concerned has been convicted by a competent Court or Tribunal of an offence punishable by a sentence of imprisonment or a fine exceeding $2,000.

(ii) The Member concerned has been disciplined under Section 21 of the Chartered Professional Engineers of New Zealand Act 2002 or subsequent amendments thereof.

d. Set out the orders which may be made by any Disciplinary Committee or Appeal Committee.

11.2 In fulfilling his or her obligation as a Member for upholding professional standards of behaviour by engineers, should any Member make a complaint alleging that another Member has acted in breach of Rule 4, the Chief Executive must initiate action to deal with such complaint in accordance with the Regulations prescribed by the Board in pursuance of Rule 11.1.

11.3 Should the Chief Executive receive a complaint from any other source alleging that a Member has acted in breach of Rule 4, the Chief Executive must initiate action to deal with such complaint in accordance with the Regulations prescribed by the Board in pursuance of Rule 11.1.

11.4 Should the Chief Executive receive information from any source which, in his or her opinion, indicates that a Member may have acted in breach of Rule 4, then the Chief Executive may deem the matter to be a complaint and initiate action to investigate the Member’s behaviour in accordance with the Regulations prescribed by the Board in pursuance of Rule 11.1.

11.5 If a Disciplinary Committee appointed under Rule 11.1 decides that a Member whose conduct is the subject of the investigation has acted in breach of Rule 4, the Committee may make one or more of the following orders:

a. That such Member be expelled from Membership of the Institution.

b. That such Member be suspended from Membership for any period.

c. That such Member be suspended from the Membership until such time as the Member has fulfilled requirements for professional development as have been specified by the Committee.

d. That if by a prescribed date the Member fails to fulfil requirements for professional development as have been specified by the Committee such Member be suspended from Membership for a specified period of time.

e. That a fine not exceeding an amount determined from time to time by the Board and duly published in the official journal of the Institution be imposed on such Member.

f. That such Member be reprimanded or admonished.

g. That such Member pay a sum not exceeding an amount determined from time to time by the Board and duly published in the official journal of the Institution towards such costs incurred by the institution and/or the complainant as are directly attributable to the investigation, hearing and/or determination of the complaint.

h. That upon completion of consideration of the complaint according to the procedures under the Disciplinary Regulations, the Member be named, the order made against the Member be stated, the nature of the breach described in the official journal of the Institution, the matter publicised in any other manner as may be prescribed by the Committee, or any combination of these possibilities as the Committee might prescribe.

11.6 An Appeal Committee may affirm, vary or reverse any order of a Disciplinary Committee, or make any order that a Disciplinary Committee is able to do under Rule 11.5.

It will be seen that under r 11.5 a Disciplinary Committee may make orders where it decides that “a Member whose conduct is the subject of the investigation has acted in breach of Rule 4”. Those orders are not confined to expulsion or suspension; as we explain at [48] below, the committee may also fine the Member, order payment of costs, and publish its decision.

[23] Rule 4, which we examine below, sets behavioural standards, providing for example that Members must comply with a Code of Ethics reflecting fundamental values that include protection of life, commitment to community well-being, and professionalism, integrity and competence. Fellows must conduct themselves in a competent manner commensurate with their class of membership.
[24] Until 2015 Members had an unfettered right to resign under r 8.17.1, which provided:[23]

8.17. RESIGNATION, REMOVAL AND REINSTATEMENT

8.17.1 Each Member may by notice in writing to the Chief Executive resign from Membership after payment of all sums due in respect of subscriptions or otherwise.

[25] Regulations promulgated under r 11.1 provided that IPENZ “must”, as soon as practicable after receiving a complaint, refer the matter to a Disciplinary Committee or investigate it.[24] That is the process that was followed in this case.

Did resignation bring an end to the disciplinary process?

The High Court Judge’s reasons

[26] Collins J referred to leading authorities on contractual interpretation and found that as a matter of textual analysis the Rules could reasonably bear the interpretation that the defined term “Member” includes someone who was a Member at the time of a complaint but has since resigned.[25] He based that conclusion on three points. First, some rules plainly applied to former Members although they did not specifically say so; put another way, the Rules must be taken to include former Members where the context required it.[26] Second, r 11.5 refers to a particular Member.[27] Third, that person’s conduct is the subject of the investigation, which introduces a temporal element, indicating that what matters is that the person be a Member at the time of the complaint.[28]
[27] The Judge then examined contextual matters, stating that professional disciplinary proceedings serve to maintain public trust in the profession.[29] Earlier in his judgment, he had discussed the role of professional associations and the purpose of their disciplinary powers, noting the benefits that membership of a learned association brings; these include professional development, competitive advantage over non-members, collegiality, advocacy for the interests of the profession, and trustworthy status.[30] The corollary is a public expectation that an organisation such as IPENZ will tightly regulate admission and will maintain professional standards through disciplinary proceedings where necessary.[31] Those proceedings may maintain standards of competence, offer rehabilitation and provide a forum for inquiring into a tragic event.[32] He cited IPENZ publications emphasising that disciplinary processes maintain public confidence in the profession.
[28] The Judge reasoned that the objective of maintaining public trust would be frustrated were Members able to resign before their disciplinary processes conclude, so precluding proper inquiries into alleged failures to meet professional standards.[33] He accordingly concluded that “Member” in r 11 does include a person who was a Member when a complaint was made but resigns before disciplinary processes are concluded.[34] Collins J added that he found support for this conclusion in Mander J’s judgment in Mr Harding’s case.[35]

The argument

[29] Mr Gedye QC argued that the Rules are a private contract between IPENZ and its members and should be interpreted accordingly. The definition of Member in r 2.1(b) was clear and unambiguous, and nothing in r 11 specified any contrary interpretation. It was not necessary to have recourse to extrinsic material to interpret the Rules.
[30] Counsel submitted that r 4, which as mentioned above sets behavioural standards, is the subject matter of r 11, which relates exclusively to complaints against Members “in respect of Rule 4”. The terms of r 4 show that it relates only to current Members.
[31] Mr Gedye accepted that some rules apply to former Members, but those rules are mechanical or administrative in nature and do not address general obligations to abide the Rules and regulations. In such cases it may be said that a contrary intention is specified because the rule itself makes clear that it applies to former Members.
[32] By contrast, counsel submitted, there was no logical or textual reason to prefer the Judge’s interpretation of r 11. The phrase “Member whose conduct is the subject of the investigation” is no more than a necessary or natural reference to the relevant person, carrying no sense that proceedings could continue if that Member resigned. He added that the Judge’s interpretation is not logically limited to cases where a Member is current at the time of the complaint; it would equally apply to those who had retired or died long before.
[33] To the extent that context is admissible to interpret the Rules, Mr Gedye submitted, it is limited to the following: membership is voluntary, most engineers are not members, other bodies exist to represent engineers, IPENZ is not a statutory regulator, membership is contractual, and Members had at the time of the complaint an unfettered right to resign. He complained, as noted above, that the Judge referred to wider contextual material without inviting argument on it and criticised the conclusions that the Judge drew from extrinsic material.

Reliance on extrinsic materials

[34] We begin by rejecting the submission that Collins J was wrong to consider material not mentioned in argument without hearing from the parties about it. The purpose of disciplinary proceedings and the public interest in them were live issues on which he did hear what the parties wanted to say and he correctly understood their positions on those issues. The conclusions which he drew were, with respect, obvious and (as we explain below) could be drawn from the Rules themselves, and most of the materials to which he referred were academic articles to which, as Ms Clarke submitted for the Attorney-General, s 129 of the Evidence Act 2006 would apply.[36] In any event, as we remarked in argument, this would not in itself justify allowing the appeal since the hearing before us allowed Dr Reay to address the merits and so remedy any failings of natural justice that might have occurred.

Interpretation of the Rules

[35] The Rules are a contract and must be interpreted accordingly.[37] The principles applicable to contracts in general are sufficiently stated for our purposes in the Supreme Court decisions in Vector Gas Ltd v Bay of Plenty Energy Ltd and Firm PI 1 Ltd v Zurich Australian Insurance Ltd.[38] In short, a court seeks to ascertain the meaning that the contract would convey to a person having all background knowledge that would reasonably have been available to the parties in the situation they found themselves at the time of the contract.[39] Text is centrally important but context is a necessary element of the interpretive process,[40] and a court need not first identify an ambiguity in the text before having recourse to it.[41]
[36] Incorporated societies exhibit characteristics that may affect a court’s approach to the interpretation of their rules.[42] The rules are not usually negotiated between the society and each member. Rather, members join from time to time, adopting the rules as they stand at that time and agreeing to abide by them in future. The rules so adopted usually provide that they may be amended by the members collectively under a prescribed process, so a new member contemplates that the rules may be changed from time to time with or without the member’s specific consent.
[37] This leads us to make several points. First, a court may not be much assisted by evidence of the context when the rules were originally adopted or even when the member first joined the society.[43] Mr Gedye’s argument notwithstanding, both parties recognised this, focusing their argument on the rules as they stood not in 1914 or 1970 but in 1986 and 2012. A court may find it more helpful to consider the circumstances that led members to adopt or modify the rules in force at those dates. This is permissible from a contractual perspective because the rules that members adopt when they join include processes under which they may participate in future changes and be bound by the results.
[38] Second, an incorporated society’s rules differ from other contracts in that they customarily incorporate an express objective, which readily permits the court to adopt a purposive interpretation to give effect to the objective.[44]
[39] Third, the rules may require not that members deliver to the society something tangible or measurable, such as goods or services, but rather that they conduct themselves in certain ways in their own professional or business activities, seeking to enhance the public stature and authority of the society and benefit its members as a class. To those ends, the society’s objectives and standards may attempt to establish it as a guardian of the public interest. A public dimension to its activities may make it susceptible to judicial review, as has happened in this case.[45]

The relevant context in this case

[40] We accept Mr Gedye’s submission that the matters listed at [33] above form context that may be taken into account when interpreting the Rules. In particular, we accept that IPENZ has no regulatory powers in its own right and no overall responsibility for maintaining standards in the engineering professions. Its authority is confined to its members.
[41] However, we do not agree that those matters exhaust the relevant context. The public interest in the maintenance of professional standards, and IPENZ’s interest in its standing and reputation, are relevant considerations, both textually and as context, when interpreting the 1986 Rules. They are textual considerations because the rules incorporate them. We refer here to the rules as they stood in 1986, because as noted above they set the behavioural standard that would govern Dr Reay’s case. Rule 18.2, which we have quoted at [13] above, specifically invoked the public interest, and also the standing and reputation of IPENZ, and especially in matters of health and safety. To that end, the rule required that Members must discharge professional obligations with integrity and meet the profession’s normally accepted standards. They are also contextual considerations relevant to the standards of behaviour expected of Members at the time the subject of the complaint, and what those standards required of them in the particular setting.
[42] Accordingly, Collins J was right to hold that the public interest is a relevant consideration under the 1986 Rules, as is the standing and reputation of IPENZ. These matters are taken into account when determining the standards of professional conduct that the 1986 Rules require of Members in any specific setting. Self‑evidently, disciplinary processes exist to police and maintain those standards. That being so, the Judge was right to conclude that the public interest, and the standing and reputation of IPENZ, may require that those processes be seen to be effective in order to maintain public trust.[46] It is not necessary to have recourse to extrinsic materials to draw these conclusions.

The meaning of “Member” in r 11

[43] That brings us to the central question of interpretation.
[44] We have quoted the definition of Member at [20] above. In our view the phrase “unless a contrary interpretation is specified” must be taken to mean “unless the context otherwise requires”. Indeed, this was not seriously in dispute before us. As noted at [31] above, it is common ground that there are rules and regulations that affect Members who have resigned or been expelled, yet none of these Rules expressly specifies that “Member” means a former Member.
[45] The question accordingly may be framed as whether the context requires that “Member” in r 11 includes a former Member.
[46] We begin by rejecting Mr Gedye’s argument that r 11 is concerned with conduct that breaches r 4 and the latter rule is confined to current Members. Counsel noted correctly that r 4 uses the defined term “Member” throughout and speaks in the present tense, requiring for example that Members “must comply with” the Code of Ethics. But the rule also contains what is described as the “Membership obligation”:

4. RULE 4 OBLIGATIONS ON MEMBERS

4.1. Membership obligation

Each candidate for election to any class of Membership must undertake to abide by the Rules and Regulations of the Institution and future revisions thereof (the “Membership obligation”). This undertaking will be regarded as continuing until the person resigns or is removed from the roll of Members.

[47] This rule restates an obligation that applied to Dr Reay at all material times during his membership. It is pursuant to that obligation that, were he still a Member, he would be susceptible under the Rules to discipline for conduct that occurred during the currency of the 1986 Rules and Code of Ethics. We observe that “the Membership obligation” ceases on resignation, but only with respect to future conduct. The Rule says nothing about post-retirement liability for conduct while membership continued.
[48] We next note that the remedies available to a Disciplinary Committee are not limited to rehabilitation, suspension and expulsion. Some naturally affect a Member who has been expelled or who has chosen to resign; they are payment of fines and costs and publication of the Member’s identity in connection with the complaint.[47] The last of these, r 11.5(h), confirms, if it were necessary, that IPENZ has an interest in being seen to maintain its standards. The existence of these provisions points naturally to the rule applying to former Members. That being so, we would expect r 4.1 to specify, if Dr Reay were correct, that on resignation the Membership obligation ceases with respect to past as well as future conduct.
[49] We have held that a purposive interpretation is appropriate. We agree with Collins J that it points strongly toward IPENZ’s powers of investigation and sanction remaining available following the resignation of a Member who is the subject of a complaint. Otherwise the disciplinary powers would be, and be seen to be, ineffective against Members who have reason to believe their conduct will not survive the scrutiny of their peers. (For the avoidance of doubt, we do not suggest that Dr Reay falls into that category in fact; that question is not before us.)
[50] Mr Gedye submitted that if this interpretation is correct then there is no reason why a Member need hold a current membership at the time of a complaint; IPENZ might take proceedings against Members who resigned long before a complaint was made. We agree. It does not follow that a Member must be current when a complaint is determined. When a Member resigned before the complaint was made there may be a question about what purpose disciplinary proceedings would serve. The efficacy of the disciplinary process may not be in issue, as it is in this case. However, that question would fall to be answered in the circumstances of each case.
[51] We conclude that “Member” in r 11 may include a former Member such as Dr Reay who has resigned following a complaint but before disciplinary proceedings are concluded.
[52] We observe that Mander J reached the same conclusion for essentially the same reasons in Mr Harding’s case.[48]

Relief

[53] Collins J granted the Attorney-General relief, reasoning that relief normally follows where an error of law has been established and emphasising that the declarations he made left IPENZ free to reconsider whether it wishes to proceed with the complaint.[49] He noted the passage of time and its potential impact on the proceeding, the “practical challenges” of deciding whether to start afresh or continue the proceeding that was under way when Dr Reay resigned, and Dr Reay’s age (then 76), but concluded that there was an overwhelming public interest in favour of allowing IPENZ to continue if it thought fit.[50]
[54] On appeal, Mr Gedye emphasised that relief is discretionary and the overall justice of the case must be considered. As to that, he highlighted several considerations:
[55] There is some force in these submissions, which will have to be taken into account when IPENZ decides whether to continue with the proceeding commenced in 2012, before the various inquiries mentioned above. The Royal Commission did attribute fault to Dr Reay, concluding that Mr Harding lacked relevant experience and his work ought to have been supervised by Dr Reay, who failed in his responsibilities by taking a “hands-off” approach.[51] The Commission recommended regulatory reform and also amendments to the IPENZ Code of Ethics.[52] Some of those recommendations were taken up by MBIE in its report and reflected in 2016 amendments to the IPENZ Code of Ethics, which now provides, for example, that an engineer must report to a relevant regulatory body any engineering matter that could cause adverse health and safety or environmental damage.[53]
[56] However, we do not accept that the intervening inquiries preclude the relief sought, which will merely return the issue to IPENZ for further consideration. That is appropriate because its decision to terminate the disciplinary proceedings rested on an error of law. We are not in a position to say that Dr Reay’s professional accountability for the CTV Building collapse has been fully determined. Ultimately, it is for IPENZ to decide whether a Disciplinary Committee decision would serve a useful purpose having regard to intervening events.
[57] So far as other considerations are concerned, we generally accept the Attorney‑General’s submissions. Delay is not in itself a reason to deny relief and we are not persuaded on the information before us that Dr Reay will suffer material prejudice from it. He has been aware of the collapse since 2011 and the complaint since 2012. We are not in a position to determine the claim, mentioned in argument, that the discontinuance of his declaratory judgment proceeding brings the disciplinary proceeding to an end, as opposed to simply being a consideration that IPENZ may now take into account. Nor are we in a position to determine a claim, mentioned in connection with relief but not developed in argument, that IPENZ lacks jurisdiction to determine complaints relating to conduct occurring before 3 December 2002. We have approached the appeal, as did counsel, on the basis that what is before us is a question of interpretation of the Rules.
[58] We are not persuaded that Collins J was wrong to grant the Attorney-General the relief sought.

Costs

[59] Mr Gedye resisted costs in this Court, submitting that IPENZ had abandoned the disciplinary proceeding on advice and Dr Reay had responded by discontinuing his judicial review application, and the Attorney-General has intervened in the public interest.
[60] In our view the salient point is that Dr Reay is not acting in a wider public interest by bringing this appeal. He is acting, quite properly, in his own interests. Costs should follow the result in the usual way. They will be payable for a standard appeal on a band A basis, with provision for one counsel, and usual disbursements.






Solicitors:
Buddle Findlay, Christchurch for Appellant
Crown Law Office, Wellington for First Respondent
Kensington Swan, Wellington for Second Respondent

[1] IPENZ is now called Engineering New Zealand.

[2] Canterbury Earthquakes Royal Commission Final Report: Canterbury Television Building (Royal Commission Report, Vol 6, 7 December 2012) [Royal Commission Final Report Vol 6] at 7.4.

[3] Mr Stannard was at the time Chief Engineer at the Ministry of Business, Innovation and Employment. He complained because his role at MBIE gave him a leadership position within the engineering profession and he believed a complaint was necessary to ensure IPENZ would take action against Dr Reay.

[4] Harding v Institution of Professional Engineers NZ Inc [Harding v IPENZ] [2014] NZHC 2251, [2014] NZAR 1252.

[5] Elms v Harding (Institution of Professional Engineers New Zealand, Disciplinary Committee, Decision No 227-02 141003, 23 October 2014).

[6] Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 3211, [2019] 2 NZLR 731 [Judgment on appeal].

[7] At [122].

[8] At [104].

[9] At [121].

[10] At [122].

[11] Royal Commission Final Report Vol 6, above n 2; New Zealand Department of Building and Housing Structural Performance of Christchurch CBD Buildings in the 22 February 2011 Aftershock (Ministry of Business, Innovation and Employment, Expert Panel Report, February 2012); and New Zealand Police CTV Building 249 Madras Street, Christchurch: Criminal Investigation Report for the Crown Solicitor (Report for Crown Solicitor, 26 May 2017).

[12] Handbook No 1 Rules of the Institution of Professional Engineers New Zealand Incorporated (1986).

[13] IPENZ Engineers New Zealand Rules (March 2010), r 3.

[14] Engineers Registration Act 1924, s 3(1).

[15] Section 11.

[16] Peter Cooke An Evolving Order: The Institution of Professional Engineers New Zealand, 1914–2014 (Institution of Professional Engineers New Zealand, Wellington, 2014) at 88.

[17] At 88, citing New Zealand Institution of Engineers Annual Report (1963) at 10.

[18] Professional Information for Members of the Institution of Professional Engineers New Zealand Incorporated (Institution of Professional Engineers New Zealand, 1986) at ch 4.

[19] Chartered Professional Engineers of New Zealand Rules (No 2) 2002 (CPENZ Rules), rr 42A−42I.

[20] For example, sch 1, pt 3 of the Building Act 2004 provides that signs, plinths, retaining walls, and certain public playground equipment carried out or reviewed by a chartered professional engineer do not require building consents (pursuant to s 42A).

[21] Chartered Professional Engineers of New Zealand Act 2002, s 4.

[22] Sections 39 and 40.

[23] In 2015, IPENZ amended r 8.17.2 to confer a discretion to refuse to accept a Member’s resignation.

[24] Regulation 5.

[25] Judgment on appeal, above n 6, at [100].

[26] At [95].

[27] At [96]–[97].

[28] At [99]–[100].

[29] At [102].

[30] At [51]–[55].

[31] At [56].

[32] At [61].

[33] At [102]–[103].

[34] At [104].

[35] At [106]; Harding v IPENZ, above n 4.

[36] Chief Executive of the Department of Corrections v McDonnell HC Auckland CRI-2005-404-239, 19 May 2008.

[37] Hopper v North Shore Aero Club Inc [2006] NZCA 308; [2007] NZAR 354 (CA) at [11].

[38] Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444; and Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432.

[39] Firm PI 1 Ltd v Zurich Australian Insurance Ltd, above n 38, at [60]–[63], [77]–[79], and [88]–[93] per McGrath, Glazebrook, and Arnold JJ.

[40] At [63].

[41] Vector Gas Ltd v Bay of Plenty Energy Ltd, above n 38, at [22]–[23] per Tipping J.

[42] Law Commission A New Act for Incorporated Societies (NZLC R129, 2013) at [9.5].

[43] Strand v Bays Music Centre Inc [2013] NZHC 1870, [2013] NZAR 1068 at [35].

[44] Incorporated Societies Act 1908, s 6(1)(b). See for example Hopper v North Shore Aero Club Inc, above n 37.

[45] It is not in dispute that the decision to dismiss the complaint is susceptible to judicial review. This Court most recently discussed jurisdiction in Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 329 at [53]–[55]. We record that the application in this case was governed by the Judicature Amendment Act 1972, not the Judicial Review Procedure Act 2016.

[46] Judgement on appeal, above n 6, at [110]–[116]; and R v Wilson, ex parte Robinson [1982] Qd R 642 (SC) at 646–647, cited in Harding v IPENZ, above n 4, at [26].

[47] Rule 11.5.

[48] Harding v IPENZ, above n 4, at [36].

[49] Judgment on appeal, above n 6, at [118]–[119].

[50] At [120]–[121].

[51] Royal Commission Final Report Vol 6, above n 2, at 2.1.6.

[52] Canterbury Earthquakes Royal Commission Final Report: Canterbury Television Building (Royal Commission Report, Vol 7, 7 December 2012) at 4.5.

[53] Clause 3.

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