Reay v Attorney-General
[2016] NZCA 519
•27 October 2016 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA32/2016 [2016] NZCA 519 |
| BETWEEN | ALAN MICHAEL REAY |
| AND | THE ATTORNEY-GENERAL INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED |
| Hearing: | 7 September 2016 |
Court: | Randerson, Wild and Winkelmann JJ |
Counsel: | H B Rennie QC and W J Palmer for Appellant |
Judgment: | 27 October 2016 at 2.30 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe parties are to file amended pleadings in accordance with the directions at [23] of this judgment.
CAny further issues as to the form of pleadings or discovery are to be dealt with in the High Court.
DThe first respondent must pay the appellant’s costs for a standard appeal on a band A basis plus usual disbursements.
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REASONS OF THE COURT
(Given by Wild J)
This is an unusual case because the Attorney-General has applied to review a decision made by the Institution of Professional Engineers New Zealand Inc (IPENZ) that it has no jurisdiction to continue a disciplinary proceeding against Dr Reay because he is no longer a member of IPENZ. A further unusual feature of the case is that the Attorney has moved to strike out parts of Dr Reay’s statement of defence to the Attorney’s statement of claim in his application for judicial review.
This appeal is against a decision given by Brown J in the High Court at Wellington on 9 December 2015 in which the Judge largely granted the Attorney’s application to strike out parts of Dr Reay’s statement of defence. [1] A good deal of agreement at the hearing of this appeal means this Court’s judgment can be brief.
Background
[1]Attorney-General v Institution of Professional Engineers New Zealand Inc [2015] NZHC 3136 [judgment under appeal].
Dr Reay is a structural engineer and was a member of IPENZ from 27 November 1970 until he resigned on 28 February 2014. In 1986 Mr Harding, an engineer at the firm of which Dr Reay was the sole principal, undertook the structural engineering design of the CTV building in Christchurch. That building collapsed during the 22 February 2011 earthquake, killing 115 people.
In 2012 two complaints were made to IPENZ about Dr Reay, following the report of a Commission of Inquiry. One was by Mr Stannard, the Chief Engineer at the Ministry of Business, Innovation and Employment, the other by Mr Elms on behalf of himself and 54 other relatives of people who had died in the building collapse. IPENZ began investigating the complaints in early 2013 but Dr Reay complained it was not following its Rules as to the process for investigating, hearing and determining complaints. He commenced a proceeding in the High Court seeking orders requiring IPENZ to act in accordance with natural justice and its Rules, but did not pursue it. He subsequently resigned his membership of IPENZ. IPENZ dismissed the complaints against Dr Reay on 9 April 2014 on the basis its disciplinary process could not continue against a person who was no longer a member.
On 17 September 2014 the High Court issued a decision concerning Mr Harding, holding IPENZ had jurisdiction to hear and determine a complaint against a person who resigned from membership of IPENZ after the complaint was made but before completion of the disciplinary process.[2] In the light of that decision the Attorney, on behalf of Mr Stannard, asked IPENZ to reconsider its decision in Dr Reay’s case. IPENZ decided it was functus officio in relation to the complaints against Dr Reay and could not revisit its decision. The Attorney applied for judicial review of this decision on 19 March 2015. Amended statements of claim were filed on 1 July and 16 October 2015. Dr Reay filed statements of defence to each of the statements of claim, on 6 May, 17 July and 6 November 2015.
[2]Harding v Institution of Professional Engineers New Zealand Inc [2014] NZHC 2251, [2014] NZAR 1252.
On 7 August 2015 the Attorney applied to strike out parts of the second statement of defence on the grounds those parts disclosed no arguable defence and were likely to cause unnecessary prejudice and delay. As the third (second amended) statement of claim (and corresponding statement of defence) had been filed by the time the application came on for hearing, Brown J dealt with the application as if it related to the 6 November 2015 statement of defence.[3]
[3]See judgment under appeal, above n 1, at [16].
The Judge largely granted the Attorney’s application, striking out paragraphs of the statement of defence detailing Dr Reay’s complaints about IPENZ’s processes, his reasons for resigning his membership of IPENZ and those pleading IPENZ was estopped from taking any further action against Dr Reay.
What will be relevant to the judicial review proceeding?
Essentially, the Attorney wants the High Court to determine whether IPENZ has jurisdiction to investigate, hear and determine complaints made when Dr Reay was a member of IPENZ, about his conduct while he was a member.
Before us Mr Rennie QC helpfully identified three sub-issues Dr Reay wants the High Court to answer:
(a)Standing: Has the Attorney standing to apply for judicial review? That encompasses two aspects: whether the Attorney can properly represent Mr Stannard; and whether the Attorney can intervene in what is essentially a private contract issue.
(b)Disciplinary jurisdiction: If IPENZ decided it had no jurisdiction to continue its disciplinary proceeding against Dr Reay after he resigned his membership of IPENZ, is that correct as a matter of law? The “if” is included because this issue entails first deciding what exactly IPENZ did decide: did it in fact decide that it had no jurisdiction or, for example, did it decide that to proceed would be pointless because it had no available disciplinary sanctions against Dr Reay once he was no longer a member of IPENZ?
(c)Relief: Depending on the answer to issue (b), what, if any, relief should the Court grant the Attorney? In particular, should it set aside IPENZ’s decision?
Most of the material Brown J struck out relates to the third issue (discretion). Mr Rennie highlighted four matters he will want to raise in the High Court going to the grant of relief:
(a)the delay between IPENZ’s decision and the Attorney’s application for judicial review;
(b)the fact that, during that period of delay, Dr Reay and IPENZ filed a joint memorandum agreeing to end the proceeding Dr Reay had brought against IPENZ, by a joint memorandum; and
(c)Air Nelson Ltd v Minister of Transport and GXL Royalties Ltd v Minister of Energy — which hold, notwithstanding that relief is at the court’s discretion, that a claimant is entitled to relief when a decision‑maker is found to have erred in law except in very rare cases[4] — are distinguishable because they were both commercial cases where the applicant was directly affected and here the Attorney has no legitimate interest to justify his intervening; and
(d)there were a number of breaches of natural justice and of IPENZ’s rules during its investigation of the complaints. These are closely linked to Dr Reay’s reasons for resigning his membership.
[4]Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]–[61]; GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [67].
Mr Stephen accepted that the High Court’s exercise of discretion to grant relief is a live issue.
Our decision on this appeal
Before us, counsel eventually accepted the statements of claim and defence filed are not satisfactory. We agree with Brown J that the statement of defence is prolix and it is not easy to see how many of the matters pleaded are relevant to any of the three sub-issues set out at [9]. Most of the matters summarised at [10] are matters for evidence and submission, not for inclusion in the statement of defence. To some extent this results from the statements of claim also being prolix and pleading a number of irrelevant matters.
However, we consider the Judge erred in entertaining the Attorney’s strike‑out application. The Judge’s ruling effectively precludes Dr Reay from advancing a number of matters relevant to the three sub-issues set out at [9] — especially those relating to the Court’s discretion to grant relief. Rather than striking out parts of the pleadings, we consider the Judge should have required Dr Reay to re‑plead his defence.[5] For that reason we intend allowing the appeal.
[5]See Andrew Beck Principles of Civil Procedure (3rd ed, Thomson Reuters, Wellington, 2012) at [5.4.3]: “In most cases, however, the court will order an amendment of the pleading rather than striking it out and leaving the party to try again if it is able to”, citing Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) and Pearce v Accident Compensation Corporation (1991) 5 PRNZ 297 (HC).
Before us the parties[6] agreed the material to be filed in the High Court can be narrowed to an agreed chronology and bundle of agreed documents. Mr Stephen indicated he wanted this Court to issue a decision to guide the parties in compiling a new set of pleadings and documents, by assisting them to know what is relevant.
[6]When we say “the parties” we are generally referring to Dr Reay and the Attorney-General, as IPENZ was represented at the hearing but did not take an active role and it abides the decision of the Court. At the hearing before us Mr Wilson indicated IPENZ is content for the matter to proceed on the basis of an agreed chronology and bundle of documents.
The next part of our judgment provides some broad guidance as to how the pleadings should be redrafted, with a view to a third amended statement of claim and corresponding statement of defence being filed in the High Court as soon as practicably possible. All parties need to make a concerted effort to progress this proceeding.[7]
What should be included in the amended pleadings?
[7]We were informed there are still discovery issues outstanding in the High Court and the full record of documents relevant to IPENZ’s decision has not been filed.
The statement of claim in an application for judicial review must state the facts on which the applicant bases its claim to relief; state the grounds on which the applicant seeks relief; and state the relief sought.[8] As correctly summarised in the New Zealand Judicial Review Handbook, a statement of claim in an application for judicial review should state “simply and in a focused manner” what has gone wrong of a nature and degree requiring supervisory intervention.[9] The purpose of a statement of claim (and defence) is to inform the opposing party and the court of the essential basis of a claim (or defence) and the necessary ingredients of it.[10] Only the material facts should be stated. Evidence and law should not be included. Ideally, each paragraph should be confined to a single topic. The pleading should be divided into separate causes of action or separate defences.[11] Care should be taken to avoid pleading matters of submission, which can be made purely by reference to the documents that form part of the record. Parties should give particulars succinctly and only where necessary. Prolixity should be avoided.[12]
[8]Judicature Amendment Act 1972, s 9(2).
[9]Matthew Smith New Zealand Judicial Review Handbook (Thomson Reuters, Wellington, 2011) at 415.
[10]Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 18.
[11]For a helpful overview, see Beck, above n 5, at [5.3].
[12]See also New Zealand Fishing Industry Association (Inc) v Minister of Fisheries CA82/97, 22 July 1997 at 26.
The following summary by Fisher J in Russell v Taxation Review Authority remains an excellent guide to what should be — and what should not be — included in a pleading:[13]
It should not be necessary to state that there are only three possible reasons for including an allegation in a pleading. The primary reason is that the allegation forms one of the essential factual planks upon which judgment depends. Whether an allegation is justified under this heading is easily tested. The question is whether, in the absence of proof of the pleaded fact, the plaintiff would be entitled to judgment. The second is that the pleaded fact is critical to the quantum or nature of the remedy sought. The third is that contextual facts may be pleaded if without them it would not be possible to understand the more critical factual allegations. In addition it will be helpful to set out the statement of claim in a way which concisely shows the legal nature or classification of each cause of action.
[13]Russell v Taxation Review Authority (2000) 19 NZTC 15,924 (HC) at [40].
The third point made by Fisher J is important — contextual facts can be included if it would not be possible to understand the critical allegations without them; otherwise contextual facts should be avoided. This means, for example, that the details of the complaint by Mr Elms, which is no longer pursued, should not be included in the statement of claim.
We consider the Attorney’s statement of claim needs to do no more than:
(a)allege that Dr Reay was a member of IPENZ;
(b)plead Mr Stannard’s complaint about Dr Reay made on 11 December 2012;
(c)allege Mr Stannard’s complaint was referred by IPENZ to its investigating committee;
(d)plead that Dr Reay then resigned on 28 February 2014;
(e)plead the committee’s decision: that, given Dr Reay’s resignation, it no longer had disciplinary jurisdiction. It would be helpful to set out, verbatim, the critical part of the decision;
(f)allege the committee’s decision was wrong in law and identify the particular error(s) alleged (note there is no need to give reasons as these are matters for submission); and
(g)set out the relief claimed (essentially a declaration of unlawfulness and a setting aside of the decision).
The statement of defence can then plead succinctly by either admitting or denying those allegations. It can then add as an affirmative defence the allegation that the Attorney has no standing to intervene. In terms of relief, it should set out the reasons why Dr Reay asserts the committee’s decision should not be set aside. Dr Reay must bear firmly in mind the need for brevity and focus emphasised in [16] above.
Once the parties have filed and served fresh pleadings as we have directed, we consider ready agreement should be possible upon a chronology and bundle of agreed documents to be filed in the High Court. As this Court has several times emphasised, judicial review is intended to be a simple and straightforward procedure enabling the court to give a decision with the requisite speed. In judicial review the court does not look favourably on extensive interlocutory applications. In the present case, where the essential facts are not in dispute, discovery may be unnecessary, indeed inappropriate, and there may also not be a need for evidence beyond the bundle of documents. That would only be appropriate if the documents do not speak for themselves.
Result
The appeal is allowed.
The parties are to file amended pleadings as follows:
(a)The Attorney is to file an amended statement of claim in the High Court by no later than Friday 11 November 2016.
(b)Dr Reay is to file a statement of defence to the amended statement of claim no later than Friday 25 November 2016.
Any further issues as to the form of pleadings or discovery are to be dealt with in the High Court.
The first respondent must pay the appellant costs for a standard appeal on a band A basis plus usual disbursements.
Solicitors:
Buddle Findlay, Christchurch for Appellant
Crown Law Office, Wellington for First Respondent
Kensington Swan, Wellington for Second Respondent
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