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Reay v Attorney-General

Reay v Attorney-General

Case [2016] NZCA 519 27 October 2016

Standing

Judicial Review

Natural Justice & Procedural Fairness

Relief

Administrative Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA32/2016
[2016] NZCA 519

BETWEEN

ALAN MICHAEL REAY
Appellant

AND

THE ATTORNEY-GENERAL
First Respondent

INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED
Second Respondent

Hearing:	7 September 2016
Court:	Randerson, Wild and Winkelmann JJ
Counsel:	H B Rennie QC and W J Palmer for Appellant K G Stephen and RDLF Garden for First Respondent HJP Wilson for Second Respondent
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.

____________________________________________________________________

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reay v Attorney-General

Details

AGLC: Reay v Attorney-General [2016] NZCA 519
Case: [2016] NZCA 519
Decision Date: 27 October 2016 at 2.30 pm

CaseChat Overview and Summary

This case involves an appeal by Dr Alan Michael Reay against a decision made by the Institution of Professional Engineers New Zealand Inc (IPENZ) that it lacked jurisdiction to continue a disciplinary proceeding against him after his resignation. The Attorney-General applied for judicial review of this decision. The Court of Appeal allowed the appeal and required the parties to file amended pleadings in the High Court. The central legal issues in the case were the standing of the Attorney-General to apply for judicial review, the disciplinary jurisdiction of IPENZ, and the relief that should be granted. The Court of Appeal held that the High Court Judge should not have struck out parts of Dr Reay's statement of defence, but rather should have required him to re-plead his defence. The Court provided guidance on the content of the amended pleadings, emphasising brevity and focus. The Attorney-General was required to file an amended statement of claim by a specified date, and Dr Reay was required to file a statement of defence to the amended statement of claim by another specified date. Any further issues as to the form of pleadings or discovery were to be dealt with in the High Court. The first respondent was ordered to pay the appellant's costs for a standard appeal on a band A basis plus usual disbursements.

Orders