The Attorney General v Institution of Professional Engineers New Zealand Inc.
| Jurisdiction | New Zealand |
| Judge | Williams J |
| Judgment Date | 08 February 2018 |
| Neutral Citation | [2018] NZHC 74 |
| Docket Number | CIV-2015-485-223 |
| Court | High Court |
| Date | 08 February 2018 |
CIV-2015-485-223
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
Civil Procedure — application by the second defendant for disclosure of legal advice provided to the Investigating Committee and/or Institution of Professional Engineers NZ (“IPENZ”) on the question of its jurisdiction to hear the chief engineer's complaint against him — design of CTV building destroyed in Canterbury earthquake — s54 Evidence Act 2006 (“EA”) (privilege for communications with legal advisers) — waiver of privilege by disclosure
K G Stephen and I M G Clarke for Plaintiff and First Respondent
H J P Wilson and M J Neill for First Defendant and Second Respondent
W J Palmer and O D Peers for Second Defendant and Applicant
JUDGMENT OF Williams J
Dr Reay is an engineer. The engineering company of which he was principal provided the structural design for the CTV building that collapsed in the 22 February 2011 Christchurch earthquake killing 115 people. A Royal Commission of Inquiry into the collapse found Dr Reay culpable. The chief engineer at the Ministry of Business Innovation & Enterprise (MBIE) filed a professional standards complaint with the Institution of Professional Engineers NZ (IPENZ) in relation to Dr Reay's work on the structural design of the building.
IPENZ is a voluntary association which operates as the professional body for engineers in this country. The chief engineer's complaint alleged that Dr Reay had breached the IPENZ code of ethics. An Investigating Committee was appointed in accordance with IPENZ's rules and began an investigation into the complaint. Before the investigation was complete (but after a draft decision had been prepared which recommended that the matter proceed to consideration by a disciplinary committee), Dr Reay resigned his membership of IPENZ. After receiving legal advice on the question, the investigative committee decided that Dr Reay's resignation meant it no longer had jurisdiction to deal with the complaint and dismissed it.
The Attorney General (on behalf of the chief engineer) brought proceedings challenging that dismissal. He argues that IPENZ still has disciplinary jurisdiction despite Dr Reay's resignation because Dr Reay was a member when he carried out work on the building.
In this application, Dr Reay seeks disclosure of any legal advice provided to the Investigating Committee and/or IPENZ on the question of its jurisdiction to hear the chief engineer's complaint. The Attorney General and IPENZ are opposed. The Attorney General says any such opinion(s) are irrelevant to the legality of the dismissal decision and so not discoverable. IPENZ (while it abides the substantive proceeding) claims legal professional privilege in relation to such advice and appears (in this application only) to protect that privilege.
In 1986, Dr Reay's company, Alan M Reay Consultant Engineer Ltd, undertook the structural design of the CTV building in Christchurch. Dr Reay supervised a relatively inexperienced member of his staff who did the design work. The building collapsed on 22 February 2011 killing 115 people.
On 10 December 2012, Michael Stannard, chief engineer at MBIE, laid a complaint with Dr Reay's professional body, IPENZ, in relation to the collapse of the building. He alleged that Dr Reay's poor supervision of the staff member in relation to the structural design of the CTV building had contributed to the collapse and that this had breached IPENZ's code of ethics. The chief engineer sought censure of Dr Reay and the imposition of any other disciplinary actions IPENZ considered appropriate.
Mr Stannard's complaint was dealt with in accordance with the IPENZ's March 2010 rules and January 2012 disciplinary regulations. The rules also include a code of ethical conduct. 1 The allegation is the code was breached.
The IPENZ disciplinary regulations provide for a three-stage complaint procedure.
There is an initial investigation in which a complaints research officer (CRO) considers the complaint and recommends to the Chairperson of Investigating Committees whether the complaint should proceed or be dismissed. 2 The grounds for dismissal are provided in cl 8. Those grounds are as follows:
Grounds for not referring complaint to Investigating Committee
The Institution may dismiss a complaint without referring it to an Investigating Committee if the Chairperson of Investigating Committees decides under clause 9 that–
(a) There is no applicable ground of discipline under Rule 11 of the Institution; or
(b) The subject matter of the complaint is trivial; or
(c) The alleged breach of Rule 4 is insufficiently grave to warrant further investigation; or
(d) The complaint is frivolous or vexatious or is not made in good faith; or
(e) The person alleged to be aggrieved does not wish action to be taken or continued; or
(f) The complainant does not have a sufficient personal interest in the subject matter of the complaint; or
(g) An investigation of the complaint is no longer practicable or desirable given the time elapsed since the matter giving rise to the complaint.
In this case, the CRO recommended to the Chair of Investigating Committees that the complaint be referred to an Investigating Committee. The chair of
At the second stage an Investigating Committee is then convened pursuant to cls 11 to 16. It investigates the matter further and decides whether it should be referred to a disciplinary committee or dismissed on one of the grounds provided in cl 8.
In this case, the Investigating Committee was appointed on 2 August 2013. It comprised three engineers of long experience and good standing in the profession. The committee interviewed Dr Reay among others, considered other relevant documentary information and then prepared a comprehensive draft determination dated 28 February 2014. It was intended that this be circulated to the relevant parties. But on the same day (it was common ground this was a coincidence) Dr Reay sent a lengthy letter to IPENZ resigning his membership.
On 11 March 2014, the president of IPENZ then wrote to Mr Stannard and the Investigating Committee members advising them of the resignation and that this triggered an issue of jurisdiction.
The Investigating Committee then sought legal advice on the question. This appears to have been provided between 11 and 17 March in an email exchange between the CRO at IPENZ and Mr Jagose, then of Chapman Tripp (but now Jagose J). It is common ground that the purpose of those exchanges was both to obtain and give legal professional advice.
On 9 April 2014, in a written decision, the Investigating Committee dismissed Mr Stannard's complaint pursuant to Reg 8(a). The grounds for dismissal were as follows:
9.3 With this resignation, the role that IPENZ and the IC have had in pursuing its inquiries with regard to Dr Reay's conduct in respect of his professional involvement with the CTV building is at an end.
9.4 The Investigating Committee must either “ refer the matter” to a Disciplinary Committee, or “ dismiss the matter” on a specified ground.
10. DETERMINATION
10.1 The Investigating Committee has considered the applicable grounds of discipline under the terms of the relevant IPENZ Disciplinary Regulations and the IPENZ Rules.
10.2 With Dr Reay having resigned his membership, no remaining applicable ground of discipline can be applied.
10.3 Consequently, the determination of the Investigating Committee is that both of the complaints be dismissed under the provisions of IPENZ Disciplinary Regulation 8(a), that there is no applicable ground of discipline under Rule 11 of the Institution.
On 17 April 2014, IPENZ wrote to the Minister of Business, Innovation & Employment, the Hon Maurice Williamson, informing him of “recent legal advice”. The letter indicated that the tenor of the advice was that “we do not have jurisdiction over people who are not members. This extends to people who were previously members but who have since resigned their membership.” The letter continued:
To our knowledge no other membership organisation has jurisdiction over people who were previously members but who are no longer members, even if they transgressed the rules or carried out activities which were contrary to a membership code of ethics whilst they were members. Only organisations that are either established under statute or have been granted regulatory powers under statute (e.g. the New Zealand Law Society) have the ability to discipline for misconduct outside of membership and even then, the misconduct must have occurred during their period of membership.”
IPENZ indicated that the option of refusing to accept Dr Reay's resignation pending completion of the investigation was considered but, the letter noted, “that is not an option open to us. Under our rules, the member's resignation is effective on its receipt.”
By disclosure dated 4 June 2014, IPENZ provided a copy of that letter to Dr Reay. A further copy was provided to Dr Reay by way of disclosure by MBIE in an email of 1 July 2014.
The proceedings against Dr Reay having been effectively brought to an end, the Attorney General then filed judicial review proceedings arguing essentially that the Investigating Committee had misconstrued IPENZ's rules. Declarations are sought that IPENZ had continuing jurisdiction to deal with the complaint despite Dr Reay's mid-process resignation. An order is sought setting aside the original dismissal accordingly.
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