Attorney-General v Institution of Professional Engineers New Zealand Incorporated
[2015] NZHC 3136
•9 December 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-223 [2015] NZHC 3136
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of an application for judicial review
BETWEEN
THE ATTORNEY-GENERAL Plaintiff
AND
INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPROATED
First Defendant
AND
ALAN MICHAEL REAY Second Defendant
Hearing: 20 November 2015 Counsel:
K Stephen and I Clarke for Plaintiff
H Wilson and A James for First Defendant
W Palmer and O Peers for Second DefendantJudgment:
9 December 2015
JUDGMENT OF BROWN J
Introduction
[1] The matter before the Court is an application to strike out part only of a pleading. It is unusual in certain respects. First, the subject pleading is the statement of defence in a judicial review proceeding. Secondly, the applicant is the
Attorney-General who is the plaintiff in the proceeding.
THE ATTORNEY-GENERAL v INSTITUTION OF PROFESSIONAL ENGINEERS NZ INC [2015] NZHC
3136 [9 December 2015]
[2] The thrust of the Attorney-General’s contention is that the judicial review proceeding is narrow in scope, being directed to the issue of the jurisdiction of the first defendant (IPENZ) to hear and determine a complaint against the second defendant (Dr Reay). He argues that several of the affirmative statements in Dr Reay’s defence seek to introduce issues irrelevant to the issue in the claim, the inclusion of which will serve only to cause prejudice and delay.
[3] An example is para 30.3(c) of the statement of defence to the second amended statement of claim which states:
30.3 In the case of the Stannard Complaint:
…
(c) He refers to and relies on the chronology annexed to the Schedule hereto as attachment 2, which demonstrates that the initial investigation that Mr Willmot purported to undertake was flawed, non-compliant with the Regulations and in breach of his rights of natural justice.
[4] Dr Reay responds that all the paragraphs to which the Attorney-General takes objection properly contain matters that bear on the Court’s discretion to grant or refuse relief in judicial review proceedings. IPENZ abides the decision of the Court, apparently believing that it is now functus officio.
[5] Before turning to consider the several paragraphs which are the subject of challenge, it will be useful to explain the context of the application.
Context of the application
[6] IPENZ is a professional body representing professional engineers from all engineering disciplines in New Zealand. Membership is voluntary. Disciplinary regulations promulgated by IPENZ set out procedures for the investigation, hearing and determination of complaints made against members of IPENZ.
[7] Dr Reay was a member of IPENZ1 from 27 November 1970 until
28 February 2004 when he resigned.
[8] Two complaints were made to IPENZ against Dr Reay relating to the collapse of the CTV Building at 249 Madras Street in the 28 February 2011 Christchurch earthquake:
(a) Tim Elms laid a complaint on 17 October 2012 on behalf of himself and 54 others;
(b)Michael Stannard, Chief Engineer at the Ministry of Business, Innovation and Employment (MBIE), laid a complaint on
10 December 2012 (varied on 20 December 2012).
[9] The complaints were considered by an investigating committee established in accordance with the IPENZ disciplinary procedure. On 9 April 2014 the investigating committee issued a decision to the effect that once Dr Reay had resigned as a member of IPENZ the investigating committee could not refer the complaints to a disciplinary committee because no remaining applicable ground of discipline under cl 11 could be applied. Accordingly the investigating committee dismissed the complaints under cl 8(a).
[10] In a judgment delivered on 17 September 2014 in Harding v Institution of Professional Engineers NZ Inc the High Court clarified the legal position in relation to IPENZ’s jurisdiction to hear and determine complaints in circumstances where the person complained of had resigned membership of IPENZ subsequent to a complaint
being made but before the completion of the disciplinary process.2
[11] The plaintiff on behalf of Mr Stannard requested IPENZ to reconsider the investigating committee’s decision in light of Harding. However IPENZ considered the investigating committee and IPENZ to be functus officio in relation to the
complaints and therefore unable to reconsider the decision.
1 The first defendant’s name change from New Zealand Institution of Engineers Incorporated to
IPENZ on 2 March 1992.
2 Harding v Institution of Professional Engineers NZ Inc [2014] NZHC 2251, [2014] NZAR 1252.
The current proceeding and application
[12] Consequently the plaintiff commenced the present proceeding in which he contends that IPENZ has jurisdiction to investigate, hear and determine complaints made when Dr Reay was a member of IPENZ regarding his conduct whilst a member of IPENZ. He alleges that the investigating committee was wrong in law to dismiss Mr Stannard’s complaint.
[13] In the original statement of claim the following relief was sought:
(a) A declaration that IPENZ has jurisdiction to investigate, hear, and determine the complaints.
(b)An order setting aside the decision of the investigating committee to dismiss the complaints.
(c) An order directing the investigating committee to reconsider the complaints.
[14] However the relief sought in the second amended statement of claim is:
(a) A declaration that IPENZ has jurisdiction to investigate, hear, and determine the complaints.
(b)A declaration that the investigating committee was wrong in law to dismiss Mr Stannard’s complaint.
(c) An order setting aside the decision of the investigating committee to dismiss Mr Stannard’s complaint.
[15] In its interlocutory application dated 7 August 2015 the plaintiff sought the following orders:
Orders striking out paragraphs 29.2, 29.3, 30.1, 30.2, 30.3, 31.1, 31.2, 33.1,
33.2, 34.1, 34.2, 42, 56.1, 56.2, 56.4, 56.5, 59, and 60 and the chronology annexed to the Schedule as attachment 2 of the second defendant’s amended statement of defence dated 17 July 2015 (”the identified paragraphs”).
Mr Palmer pointed out and Mr Stephen accepted that the reference to para 42 should be a reference to para 43.
[16] Subsequently the second amended statement of claim dated 16 October 2015 and the statement of defence to that amended claim dated 6 November 2015 were filed. The latter document includes a number of new paragraphs to which the plaintiff also takes objection. Accordingly at the hearing Mr Stephen sought leave to amend the application to add references to paras 41(c), (d) and (e), 42(a), (b) and (c), and 47(a)-(g). Mr Palmer not opposing that application, leave was granted to include those paragraph references in the order sought above.
[17] In summary the grounds on which the order is sought are:
(a) the proceeding is a narrow judicial review proceeding about the jurisdiction of the first defendant;
(b)the plaintiff has not put in issue the substance of Mr Stannard’s complaint nor the way in which IPENZ carried out its investigation. There is no justiciable relationship between the matters raised in the identified paragraphs and the issue whether IPENZ erred in law in dismissing Mr Stannard’s complaint;
(c) the identified paragraphs amount to an improper attempt to expand the proceeding beyond the scope of the pleaded claim. The unnecessary expansion in scope and potentially the discovery sought by Dr Reay will cause delay.
[18] The second defendant opposes the application on several grounds including:
(a) the Court has a statutory and inherent discretion to decline to grant judicial review relief even if some error of law or process is made out;
(b)it would be contrary to the interests of justice for Dr Reay to be prevented from or unduly restricted in raising issues in the pleadings
which have actual or potential relevance to the exercise of the Court’s
discretion;
(c) the relief sought by the plaintiff includes orders which will have the practical consequences of both reopening the complaint by Mr Stannard to IPENZ against Dr Reay and putting the investigation committee in the position of reconsidering its decision in circumstances where Dr Reay has challenged the committee’s ability to do so justly and fairly.
[19] At a number of points in the notice of opposition there is reference to the plaintiff seeking a mandatory order against IPENZ directing the investigating committee to reconsider Mr Stannard’s complaint. It would appear that those assertions are no longer in point given that the second amended statement of claim does not include such an order in the relief now sought.3
[20] However Dr Reay mounted an argument to the effect that the deletion of the original prayer (c) would make little difference to the scope of the case because the imposition of an order in terms of the current prayer (c) (which was formerly prayer (b)) would have the same result, namely that the investigating committee would reconsider Mr Stannard’s complaint.
[21] Mr Palmer described as untenable the proposition of the plaintiff that an order simply setting aside the committee’s decision to dismiss Mr Stannard’s complaint would then leave the issue of whether IPENZ did reconvene the committee to reconsider Mr Stannard’s complaint as a discretion for IPENZ to exercise. It was argued that the effect of the provisions in the IPENZ disciplinary procedure meant that it was inevitable that any order setting aside the committee’s decision to dismiss
Mr Stannard’s complaint would result in the committee reconsidering that complaint.
3 See [13] –[14] above.
[22] From my reading of the provisions I do not accept that the course which would be followed were the plaintiff to succeed at trial, and if an order in terms of prayer (c) was granted, is inevitable. Clause 8 of the IPENZ Disciplinary Regulations which came into force on 1 January 2012 relevantly states:
8.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–
…
(g) An investigation of the complaint is no longer practicable or desirable given the time elapsed since the matter giving rise to the complaint.
[23] The investigating committee is also empowered by cl 11 to dismiss the matter on a ground in cl 8. In my view cls 8(g) and 11 expressly confer an element of discretion analogous to the prosecutor’s discretion concerning the bringing of a prosecution.
[24] Furthermore an order setting aside a decision based on an error of law is a normal consequence of a finding that the tribunal’s decision was affected by such an error. Section 4(2) of the Judicature Amendment Act 1972 provides that where on an application for review the applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the Court may, instead of making such a declaration, set aside the decision. As noted below in the context of the discussion of the Court’s discretion, where a sufficiently serious error is identified, a Court would not lightly decide to decline to set aside the decision tainted by the error.
The Court’s discretion to decline relief
[25] It was apparent from the submissions for Dr Reay that the rationale for the inclusion in the statement of defence of the challenged material relates solely to the exercise of the Court’s discretion in the event that the Court were to find that the investigating committee had erred in law in dismissing Mr Stannard’s complaint, effectively for lack of jurisdiction.
[26] This was made clear in the opening paragraphs of Dr Reay’s submissions:
6.In that regard it is submitted the Court should at this interlocutory stage, prior to any evidence being adduced, be very reluctant to exclude any matters from potential inclusion in the exercise of the Court’s broad inherent and statutory discretion at trial. It cannot be said with any certainty that the denials, further statements and particulars contained in the identified paragraphs can have no relevance to the exercise of the Court’s discretion on this judicial review application.
7.To curtail a defendant’s defence under rule 15.1 is rare, and particularly so in judicial review actions initiated by a third party litigant. The nature of this proceeding is uncommon; the unsuccessful claimant has not himself initiated the proceeding and the first defendant is not defending its committee’s decision.
8.These factors emphasise the importance of the second defendant not being restricted in his defence at this stage. It would be contrary to the interests of justice for the second defendant to be prevented from, or unduly restricted in, raising issues in his pleadings which have relevance or potential relevance to the exercise of the Court’s discretion on the substantive claim at trial relevant to the overall justice of the case.
[27] In view of that submission, it is useful, before turning to consider the particular paragraphs under challenge, to reflect on the scope of the discretion to decline to grant relief in respect of successful public law challenges.
[28] In support of the contention concerning the breadth of the Court’s discretion as to whether or not to grant relief on review, attention was drawn by Mr Palmer to the observations of Hammond J in Kung v Country Section NZ Indian Association in the context of the remedy of a declaration under the Declaratory Judgments
Act 1908:4
… A wide range of factors will then be relevant: whether a plaintiff has a sufficient interest in the proceedings; whether an issue is now moot; and the practical utility of issuing a declaration. And I can see no reason why the so-called traditional equitable defences, or at least the ideas which underlie them, are not also apposite to declarations. To take a simple example, if a plaintiff’s conduct has been itself questionable, why should (say) the clean hands doctrine not also apply to declaratory relief?
4 Kung v Country Section NZ Indian Association [1996] 1 NZLR 663 (HC).
[29] Reference was made to several other decisions including Diagnostic Medlab Ltd v Auckland District Health Board5 and Forsyth v District Court at Lower Hutt6 where Mander J noted that there was a range of considerations that bear on whether it is appropriate to grant relief. The following extract from the judgment of Henry J in the Court of Appeal in Hauraki Catchment Board v Andrews was also cited:7
… It must be remembered that in exercising a discretion in such a situation it is not just a matter of weighing the respective prejudicial factors, but a matter also of assessing the overall justice. If a respondent in an application for review is prejudiced to a significant degree, then it may well be that other factors, including delay, have themselves so much weight to make it inequitable to grant relief.
[30] I recognise that all the factors noted in those cases may bear on the exercise of the discretion: the sufficiency of interest of the applicant, the gravity of the error, mootness, delay, other conduct of the applicant. However there is also authority at a high level to the effect that where an error of law has been shown to have occurred, relief to enable that error to be rectified will not lightly be declined.
[31] In Air Nelson Ltd v Minister of Transport, the Court of Appeal observed:8
[59] Public law remedies are discretionary. In considering whether to exercise its discretion not to quash an unlawful decision or grant another remedy, the court can take into account the needs of good administration, any delay or other disentitling conduct of the claimant, the effect on third parties, the commercial community or industry, and the utility of granting a remedy.
[60] Nevertheless, there must be extremely strong reasons to decline to grant relief. For example, in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL), Lord Bingham described the discretion as being “very narrow” (at p 608), whereas Lord Hoffmann said cases in which relief would be declined were “exceptional” (at p 616).
5 Diagnostic Medlab Ltd v Auckland District Health Board [2007] 2 NZLR 832 (HC) at [375].
6 Forsyth v District Court at Lower Hutt [2015] NZHC 2567 at [139].
7 Hauraki Catchment Board v Andrews [1987] 1 NZLR 445 (CA) at 458.
8 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139.
[32] Subsequently in GXL Royalties Ltd v Minister of Energy, the Court of Appeal commented:9
[67] It would be rare for a court to refuse relief where an error of law was involved, including where relevant considerations had been missed or irrelevant considerations had been taken into account. The same applies in a case which involves an irrational decision. However, this case involves a process issue only and one which merely involved a failure to advise of a change of position. …
[33] In the present case the nature of the alleged error by the committee goes to the committee’s jurisdiction to proceed further with the complaint. While the committee may now perceive in the light of Harding that it misdirected itself on that issue, it appears to believe that it is powerless to reconvene the process because it is functus officio. Indeed that is asserted to be the position by Dr Reay in para 54.3 of his statement of defence. In those circumstances I consider that a Court would not lightly decline to set aside the decision so as to enable the committee to reconsider its position if that was what the committee considered that it ought to do.
Consideration of identified paragraphs
[34] The plaintiff groups the several identified paragraphs into five categories:
(a) process complaints: paras 29.2, 29.3, 30.1, 30.2, 30.3, 31.1, 31.2,
33.1, 33.2, 34.1, 34.2, 41, 42, 47 and 56.1; (b) Dr Reay’s reason for resigning: para 43;
(c) an alleged representation by IPENZ amounting to an estoppel:
para 56.2;
(d) the renewal of the complaint would put in issue the Royal
Commission’s findings: paras 56.4 and 56.5;
(e) the second affirmative defence: paras 59 and 60.
9 GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518.
Process complaints
[35] The plaintiff submits that the specified paragraphs allege deficiencies in the process which IPENZ followed when investigating the complaints against Dr Reay. The point is made that the chronology annexed as attachment 2 to the schedule to the statement of defence also lists a number of alleged events relating to process. He contends that none of that material is a defence to the plaintiff’s claim but that its focus is on matters entirely irrelevant to the issues in the proceeding. From his perspective the case is not about the way IPENZ carried out its investigation but whether IPENZ does or does not have jurisdiction in relation to Dr Reay after he resigned.
[36] Dr Reay argues that the issues raised in the statement of defence are relevant to the issue whether the Court should grant an order setting aside the investigating committee’s decision to dismiss Mr Stannard’s complaint. If (as is the case on a strike out) the allegations in the defence are accepted as true, then it is submitted that the IPENZ interactions with Dr Reay to date raise serious doubts about the investigating committee’s ability to fairly reconsider Mr Stannard’s complaint.
[37] The point was also made that if Dr Reay cannot avail himself of these defences in this proceeding and if the committee’s decision is set aside and the Stannard complaint inevitably reconsidered by the committee, then Dr Reay would need to pursue the process issues in a separate High Court proceeding, for example seeking an injunction to halt the committee’s reconsideration.
[38] The plaintiff would see such a separate proceeding as the appropriate course to follow. He responds that Dr Reay’s contention about advancing such matters as a defence in the current proceeding misses the point that the time for raising any process issues is in the course of reconsideration before the appropriate body. Until such reconsideration, any view on the lawfulness of the process is pre-emptive. IPENZ may well have to consider alleged issues of process as part of any future investigation of the Stannard complaint but those issues are not relevant to the issue in the current review proceeding, namely whether or not IPENZ had jurisdiction to continue to entertain Mr Stannard’s complaint.
[39] I agree with the tenor of the plaintiff’s argument. The Court does not have before it a proceeding brought by Dr Reay challenging process aspects of the investigation which was being pursued in relation to him prior to the committee’s decision to dismiss the complaint on jurisdictional grounds. I do not consider that it is appropriate for the Court in this proceeding in effect to engage with a de facto counterclaim directed to the process in an earlier investigation when it is the circumstances relating to the termination of that investigation which is in issue.
[40] I consider that several of the identified paragraphs in the statement of defence can fairly be objected to on this basis. Reference has already been made to para 30.3(c).10 A similar assertion was made with reference to the responses
provided by Dr Reay in the context of the investigation process11 and in relation to
the chairperson’s report dated 30 April 2013.12 Furthermore each of those paragraphs referred to and relied upon para 56.1 which reads as follows:
56.1The conduct of IPENZ in the context of the disciplinary processes against Dr Reay in relation to both and each of the Elms Complaint and the Stannard Complaint were unfair and unreasonable and breached his rights to natural justice including under the operative Regulations and section 27 of the New Zealand Bill of Rights Act
1990.
Particulars of IPENZ conduct
(a) Dr Reay repeats and relies on paragraphs 30 to 43 above and the chronology annexed to the Schedule hereto as attachment 2, which together demonstrate that the disciplinary process initiated and followed by IPENZ was flawed, non-compliant with the Regulations and in breach of his rights of natural justice, including in the following respects:
Elms Complaint
(i) The CRO was preparing his report by
23 November 2012, and had completed it by
11 January 2013, despite the fact that Dr Reay had only provided an interim response to the complaint
at this time and had agreed a timetable with IPENZ
which gave him until 24 January 2013 (subsequently extended to 8 February 2013) to provide his
substantive response.
10 At [3] above. Similarly para 30.2(b).
11 Paras 31.1(b) and 31.2(a).
12 Paras 34.1(c) and 34.2(b).
(ii) The CRO misrepresented to Dr Reay on
29 January 2013 that he would “proceed to consider” his recommendation as CRO after
8 February 2013 when he had actually already made
his decision.
(iii) The Chairperson’s report was completed, and a decision made to refer the complaint to an IC by at least 16 January 2013, all before Dr Reay submitted his substantive submissions in accordance with the agreed timetable.
(iv) The IC was also appointed in substance on or before
16 January 2013.
(v) Statements made by the CRO and others indicated that IPENZ decided at an early stage to adopt the Royal Commission findings as its own, evidencing an intention to ignore any attempt on his part to defend the actual allegations made against him.
(vi) Dr Reay was not provided with an email from Mr Elms dated 6 November 2012 in which he clarified aspects of the Elms Complaint until
31 May 2013.
Stannard Complaint
(vii) IPENZ failed to notify Dr Reay about the complaint lodged on 11 December 2012 and clarified on
20 December 2012 until 29 January 2013.
(viii) By the time Dr Reay was notified about the complaint, the Chairperson had already (on
22 January 2013) decided to refer it to an IC, the same day the complaint was brought to his attention.
Both
(ix) In preparing their Proposed Determination dated
28 February 2014, the IC referred to and relied upon the Royal Commission reports and communicated with and relied upon external parties in ways and to an extent that Dr Reay was not properly informed of and which are both unfair to him and contrary to natural justice.
(x) In preparing their Proposed Determination the IC did not take into account relevant factors favourable to Dr Reay.
(xi) In preparing their Proposed Determination the IC engaged in written or verbal communications with persons or parties unknown to Dr Reay to the exclusion of Dr Reay.
(xii) In preparing their decision dated 9 April 2014, the IC referred to and relied upon legal advice and directions from IPENZ to the exclusion of Dr Reay which is unfair to him and contrary to natural justice.
[41] In my view paras 30.3(c) and 56.1 are objectionable in the manner submitted by the plaintiff. I consider that it is appropriate that they, and other paragraphs of the same tenor, should be struck out as they represent a vehicle for ventilating at the hearing a variety of issues which are properly raised in the context of the investigation and process which the investigating committee’s decision abruptly brought to a halt.
[42] The plaintiff’s point about the burgeoning interlocutory consequences of the presence in the statement of defence of paragraphs containing such assertions is demonstrated by certain paragraphs which indicate that it is Dr Reay’s intention that still further particulars will be provided after discovery in this proceeding, such as para 42(c):
(c) The Proposed Determination of the IC included paragraph 15.14 which recorded the IC’s conclusions that Dr Reay’s involvement in the CTV building covered a series of key matters which were then listed in seven specific bullet points. None of those matters were conclusions of the Royal Commission in their report on the building and there are no documents referred to in the IC’s decision that support these conclusions. Further particulars of this pleading will be provided following discovery and/or interrogatories. He refers to paragraph 41(e) above.
[43] However not all the identified paragraphs are vulnerable to the criticism made by the plaintiff under this head. In particular I consider that the several paragraphs that refer to dates or matters potentially relevant to the issue of lapse of time or delay should not be excised. In that regard I note that the identified paragraphs do not include para 56.3 which asserts that there was unexplained and prejudicial delay in bringing the present proceeding.
[44] Objection is taken by the plaintiff to attachment 2 in the schedule to the defence. It is a document which runs to four pages and contains 36 entries. It is referred to in a number of the paragraphs noted above such as para 30.3(c). However that schedule is also referred to in para 49(b)(i) which is not within the list
of identified paragraphs in the plaintiff’s application. Consequently it should not be struck out despite some of its content. It will suffice that certain paragraphs that refer to it are struck out.
[45] In para 47, which in the main is a new addition in the defence to the second amended statement of claim, Dr Reay raises a different issue, namely the fact that a claim which he brought against IPENZ in 2013 was withdrawn by him as settled between him and IPENZ on terms which cannot be reviewed or otherwise set aside by the Crown as sought in the present proceeding. Although I have reservations about the relevance of that contention, I am not satisfied to the high standard
required13 that it is appropriate to strike out that allegation.
Reasons for Dr Reay’s resignation
[46] Paragraph 43 addresses the circumstances of and reasons for Dr Reay’s resignation. Indeed his letter of resignation is annexed as attachment 3 in the schedule to the statement of defence. The plaintiff submits that Dr Reay’s reasons for resigning do not assist with reference to the issue whether IPENZ maintained jurisdiction in relation to him.
[47] Dr Reay contends that his reasons for resigning are “potentially of direct relevance” to prayers (b) and (c) in the orders sought. It is not apparent to me how that could be so. Jurisdiction either existed or it did not at the date on which IPENZ commenced the disciplinary process. I do not consider that jurisdiction, if held at the date of commencement of the process, can be lost depending on the point in time at which a resignation is subsequently received or depending on the reasons proffered for a resignation.
[48] Consequently para 43 will be struck out.
13 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725; Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63.
Alleged IPENZ representation amounting to an estoppel
[49] Paragraph 56.2 states:
56.2Further conduct of IPENZ amounted to a representation that no further action would be taken against Dr Reay in respect of the complaints and that Dr Reay relied on that representation, to his detriment.
Particulars
(a) Dr Reay repeats and relies on his pleadings in paragraphs 43 to 47 and 54.3 above.
(b) After he received the IC decision dated 9 April 2014
Dr Reay discarded the majority of his personal paper records that he had accumulated in relation to the issues raised inter alia by the Stannard Complaint.
(c) Those personal records were created over the period November 2012 to April 2014, were time-consuming to create, extended to approximately 10 Eastlight folders and would be extremely time-consuming and impractical to recreate.
(d) After receiving the IC decision dated 9 April 2014 Dr Reay stopped pursuing lines of inquiry relevant to the complaint and he has lost the last 12 months of time that could otherwise have been used to pursue such lines of inquiry.
(e) A staff member Dr Reay relied upon to undertake this investigative work and other relevant work has left the employment of his firm due to this work stream ending and retraining another new staff member in relation to this matter would be time-consuming and costly.
[50] The plaintiff accepts that Dr Reay is entitled to run such an argument on any substantive reconsideration by IPENZ of Mr Stannard’s complaint but contends that it is not relevant to the issue of jurisdiction raised in the present proceeding. He makes the further point that if such an alleged representation amounted to an estoppel it would almost always have the effect of precluding judicial review.
[51] For Dr Reay it was submitted that again the plaintiff’s contention suffered as being an attempt to artificially limit the scope of what is in issue in this proceeding. Referring not only to para 56.2 but also to para 47 he argues that if the elements of estoppel are found to exist, then that is relevant to the Court’s discretion to grant relief.
[52] I view para 47 differently from para 56.2. If there is a genuine estoppel point, then that is a matter to be raised in the event that the halted disciplinary process were to be revived. Unlike the point which I took para 47 to make, I do not consider that the contention which underlies para 56.2 is relevant to the exercise of the Court’s discretion in this particular proceeding. It will be struck out.
Royal Commission’s findings
[53] The assertions in the defence concerning the implications of the Canterbury Earthquake Royal Commission’s finding and processes are contained in paras 56.4 and 56.5 of the statement of defence:
56.4Any renewal of the Stannard Complaint puts in issue the findings of the Royal Commission, which findings are statements of opinion, not fact and which would have to be the subject of evidence and substantial fresh investigation.
56.5Additionally, there were serious and extensive deficiencies in the Royal Commission processes which render the evidence heard by the Royal Commission and its subsequent report and findings unsafe to rely on as any factual authority. [Particulars]
[54] Dr Reay submits that the status of the Royal Commission’s findings is relevant to the issue whether the Court should grant relief in the form of order (c) and he again argues that the plaintiff cannot unilaterally define the issues in the current proceeding.
[55] The plaintiff maintains the stance that, while the Royal Commission’s findings and process may be relevant considerations for the IPENZ investigating committee in any reconsideration of the Stannard complaint, they have no relevance to the jurisdiction issue which is the focus of this proceeding.
[56] I am persuaded by the plaintiff’s submission. I do not consider that there is any realistic prospect that, if the plaintiff should succeed on the substance of the review claim, the Court would decline the relief which is sought on account of the matters referred to in paras 56.4 and 56.5 concerning the Royal Commission. Those paragraphs will be struck out.
Second affirmative defence: discretion
[57] Paragraph 59 (with para 60) comprises the second affirmative defence. It simply repeats and relies upon para 56(b) which states:
56. … He says further that if it be held that the IC was wrong in law to
dismiss the Stannard Complaint, the circumstances are such that:
…
(b) If such error of law is held to be amenable to judicial review as sought by the plaintiff, the Court should not exercise its discretion to grant any of the relief sought by the plaintiff for the following reasons:
The “reasons” which then follow are those detailed in paras 56.1 – 56.5 (inclusive).
[58] Paragraph 60 then states:
60.The several circumstances pleaded in paragraph 59 above (which repeats and relies upon paragraphs 56(b) and 56.1 to 56.5 above), if not sufficient to be a bar to the relief sought, are in the alternative such that the Court should exercise its discretion not to grant the relief sought in any event.
[59] The plaintiff submits that paras 59 and 60 are not defences but go solely to discretion and that they cannot “shield against a finding” that IPENZ has jurisdiction to investigate, hear and determine Mr Stannard’s complaint.
[60] However, as earlier noted, the plaintiff does not attack para 56.314 and I have ruled that paras 56.1, 56.2, 56.4 and 56.5 are to be struck out. Consequently in my view there is no basis for ordering that paras 59 and 60 should be struck out when they are confined to reliance upon an allegation (namely para 56.3) which is not the
subject of challenge on the application.
14 At [43] above.
Orders
[61] For the reasons explained above, I have concluded that the following identified paragraphs are to be struck out:
29.2, 30.2, 30.3(c) and (d), 31.1(a), (b) and (c), 31.2(a) and (b), 33.1(a), (c) and (d), 33.2(b) and (c), 34.1(a), (c) and (d), 34.2(b) and (c), 41(c), (d) and (e), 42(c), 43, 56.1, 56.2, 56.4 and 56.5.
[62] However the application is declined in respect of the following identified paragraphs and also attachment 2 in the schedule:
29.3, 30.1, 30.3(a) and (b), 33.1(b), 33.2(a), 34.1(b), 34.2(a), 42(a) and (b),
47, 59 and 60.
[63] The plaintiff has been largely successful on his application. If costs cannot be agreed then the plaintiff is to file a costs memorandum by 29 January 2016 and
Dr Reay is to file any memorandum in opposition by 15 February 2016.
Brown J
Solicitors:
Crown Law, Wellington
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