Reay v Attorney-General was a landmark case that captured the attention of the engineering and legal community in New Zealand. The saga surrounding the Canterbury Television (“CTV”) building's tragic collapse in the 2011 Christchurch earthquake revealed complex layers of accountability, professional ethics, and regulatory oversight which had to be challenged and ultimately improved.
Designed in 1986 by Dr Alan Reay's engineering firm, the CTV building's failure in the 2011 Christchurch earthquake resulted in loss of life. Reay, the firm's sole principal and a seasoned engineer, faced scrutiny over the role his oversight played in the disaster. Allegations surfaced suggesting that much of the building's structural design was undertaken by an employee, David Harding, who was reportedly lacking in the necessary experience for critical work on multi-storey buildings.
In the aftermath, the spotlight turned not only to the building’s defective structural design but also to the professional standards governing the engineering sector. Both, Reay and Harding were members of the Institution of Professional Engineers New Zealand (“IPENZ”), currently Engineering New Zealand, at the time the building was designed. In December 2012 a complaint against Reay was lodged by fellow IPENZ member, prompting an investigation by the institution.
In a bid to stop the ongoing investigation, Reay resigned from IPENZ in February 2014, aiming to stop the finalisation of the Investigating Committee's recommendations. This resignation led to the eventual dismissal of the complaint against him due to a procedural interpretation that IPENZ lacked the jurisdiction to continue disciplinary actions against former members.
Harding sought judicial review of IPENZ's decision to proceed with disciplinary actions against him, a plea that was dismissed by Justice Mander in September 2014.
Following this decision, the case took another turn in 2018 when the Attorney-General intervened, questioning IPENZ's decision to not revisit Reay's case in light of the judicial stance on Harding's proceedings. IPENZ declined to proceed, reasoning that it had no right to investigate a former member. The Attorney-General then moved for judicial review, which was granted by the High Court in the judgment under appeal. The Judge found that the Attorney-General had standing and that IPENZ had dismissed the complaint through an error of law. Reay appealed against the High Court’s decision.
The question on the appeal was whether IPENZ, an incorporated society, may continue disciplinary proceedings against a member who resigned before a complaint against him was determined.
Reay argued that IPENZ Rules were a private contract between IPENZ and its members and should be interpreted accordingly. It was submitted that the rules only applied to former members if this was explicitly specified within the rules.
The court rejected this argument, clarifying that 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. It was stressed that the public interest in the maintenance of professional standards,and IPENZ's interest in its standing and reputation, were relevant considerations, both textually and as context, when interpreting the Rules.
It was concluded that the meaning of a “member” included a former member as IPENZ had an interest in being seen to maintain its standards.The membership obligations continued past cessation of the membership.
The appeal was dismissed, with Collins J finding in favour of the Attorney-General, stressing a significant error of law in IPENZ's dismissal of the complaint against Reay. The judgment clarified that a "Member included individuals who resigned before disciplinary proceedings were concluded (or started), thus allowing regulatory bodies to review members’ conduct at any time”.
This case highlighted the complexities involved in professional disciplinary proceedings, especially when they intersect with public safety and accountability issues. It underscored the importance of professional bodies in regulating and holding their members accountable, even after resignation, to uphold standards of practice and public trust in the profession.
To understand more about this issue, please contact Director Brigitte Morten
