Reay v Institution of Professional Engineers New Zealand Incorporated's Disciplinary Committee
[2025] NZHC 2002
•18 July 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-834
[2025] NZHC 2002
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 IN THE MATTER
of an application for review of powers exercised by the Institution of Professional Engineers New Zealand Incorporated
BETWEEN
ALAN MICHAEL REAY
Applicant
AND
INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED’S DISCIPLINARY COMMITTEE
First Respondent
INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED
Second Respondent
Hearing: 5 June 2025 Appearances:
K McDonald KC and L C Elliott for Applicant
L Clark, K S Rouch and C J S Robinson for Respondents
Judgment:
18 July 2025
JUDGMENT OF McHERRON J
(Discovery)
[1] Dr Alan Reay, the applicant, seeks tailored discovery against the first and second respondents in the context of his judicial review application. The substantive hearing of that application is scheduled for 8 and 9 September 2025.
REAY v INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED’S DISCIPLINARY COMMITTEE [2025] NZHC 2002 [18 July 2025]
[2] The applicant seeks documents prepared by the first respondent’s witness, and the witness’s communications with the first respondent, ahead of a disciplinary hearing concerning the applicant in December 2023. The four confined categories of document sought are set out in the schedule to this judgment.
[3]For the reasons set out below, I allow the discovery application.
Key background events
[4] In 1986, the applicant was the principal engineer in his firm, Alan M Reay Consulting Engineer (ARCE). Apart from the applicant, ARCE employed only one other engineer, David Harding. ARCE was the structural engineer of the Canterbury Television (CTV) building, which collapsed during the 22 February 2011 Christchurch earthquake, resulting in 115 deaths. The structural design for the building was largely done by Mr Harding.
[5] Separate to the disciplinary process for Mr Harding, a complaint was made in 2012 against the applicant, alleging he failed to adequately supervise Mr Harding (the supervision complaint). There was a long hiatus during which jurisdictional questions were resolved. The second respondent then appointed a further investigating committee, which investigated the complaint and referred it to be heard by a disciplinary committee. On 22 June 2022, the second respondent appointed the first respondent to hear the complaint.
[6] The following paragraphs of the Committee’s decision describe the different regulatory frameworks it applied:1
134.To determine the complaint, we must determine if a ground of discipline applies to Dr Reay’s conduct, in accordance with the IPENZ Rules 2010 and Disciplinary Regulations 2012. These rules and regulations apply because the complaint was raised in 2012.
1 Institution Of Professional Engineers New Zealand Incorporated’s Disciplinary Committee, “Disciplinary Committee Decision – A Complaint about Alan Reay”, 25 September 2024 [Disciplinary Committee decision], at [134]–[136] (footnotes omitted). A detailed summary of the legal framework for complaints is contained in Reay v Institution of Professional Engineers New Zealand Inc [2023] NZHC 2750.
135.We must measure Dr Reay’s conduct against the IPENZ Rules 1986 and Code of Ethics 1986 which were in force at the time the CTV building was designed in 1986.
136.The current rules and regulations govern the way in which the disciplinary process to determine the complaint against Dr Reay must proceed.
[7] The Disciplinary Committee had five members: three engineers; a lawyer; and a consumer representative. The Committee held a public hearing on 4–6 December 2023 and issued its decision on 25 September 2024.2
[8] The Committee engaged Dr Buchanan, a structural engineer, as a witness. Dr Buchanan provided two written statements and was questioned at the hearing by the applicant’s counsel and members of the Committee.
[9] The Committee found that the applicant knew Mr Harding lacked the necessary experience to design the CTV building and that he failed to adequately supervise Mr Harding. The Committee determined that the applicant’s professional conduct was a breach of the Code of Ethics 1986. It ordered that he be admonished, fined him $750 and ordered him to pay costs of $1,000, the maximum available orders under the applicable rules and regulations.
[10] The applicant seeks judicial review of the decision of the Disciplinary Committee to uphold the supervision complaint. His statement of claim contains five causes of action: apparent bias; procedural unfairness; breach of the New Zealand Bill of Rights Act 1990; error of law; and unreasonableness. The applicant seeks declarations that the Committee’s decision was unlawful and that it be quashed. He seeks that the supervision complaint be dismissed and that an award of costs be made in his favour.
[11] For the purposes of the present discovery application, it is relevant that the applicant alleges several significant irregularities in terms of the way Dr Buchanan’s evidence came before the Disciplinary Committee. The applicant alleges his ability
2 Disciplinary Committee decision above n 1.
to respond to and contradict the supervision complaint was prejudiced by the following irregularities:
(a)On the last working day before the Disciplinary Committee hearing commenced, and after the applicant had filed all his evidence and written submissions, the Committee advised that it intended to provide supplementary written evidence by Dr Buchanan. This was a departure from the Committee’s “Disciplinary Hearing Procedure” which contained no provision for reply evidence and which stated that all written briefs of evidence of witnesses to be called by the Committee would be provided by 28 May 2023.
(b)On 7 November 2023, the applicant’s counsel had asked the respondents to confirm that Dr Buchanan would not provide evidence beyond the scope of his written statement provided on 5 May 2023 and indicated that any departure from this would result in significant prejudice to the applicant’s ability to respond to and contradict the complaint against him. Despite this warning, the Committee provided the applicant with a copy of Dr Buchanan’s supplementary evidence at 5 pm on 1 December 2023. Dr Reay alleges he had no opportunity to respond to and contradict it. This supplementary statement was broader in scope, and purported to change Dr Buchanan’s status from a witness of fact to that of an expert. But it did not say whether Dr Buchanan had complied with the code of conduct for expert witnesses in sch 4 of the High Court Rules 2016, as was required by the Disciplinary Committee’s hearing procedure.
(c)The respondents described Dr Buchanan as an expert witness. However, counsel for the applicant Ms McDonald KC submitted that, according to Dr Buchanan’s first statement, he was only called as a witness of fact, to give evidence of his own experience working in an engineering consultancy in Christchurch in the mid-1980s and what he recalled about the accepted practice of engineers engaged in “such work” at the time. The first reference to Dr Buchanan as an expert
witness was not until a hearing agenda provided on 27 November 2023, a few days before the hearing, described Dr Buchanan as “Disciplinary Committee expert witness”.
(d)The Disciplinary Committee refused the applicant’s requests to disclose communications between the Committee (or its representatives) and Dr Buchanan relating to the content of Dr Buchanan’s evidence, claiming (the applicant says wrongly) that such material is privileged and/or subject to an obligation of confidence.
(e)The Chair of the Disciplinary Committee prevented counsel for the applicant putting questions to Dr Buchanan at the hearing, including relating to the manner in which Dr Buchanan was briefed, the information provided to Dr Buchanan by the Disciplinary Committee, the information Dr Buchanan relied on in preparing his evidence, Dr Buchanan’s expertise and whether he had complied with the code of conduct for expert witnesses. This was despite the “Disciplinary Hearing Procedure” specifying that “Any witnesses called to give expert evidence will be required to comply with the High Court Code of Conduct for Expert Witnesses.” The Committee answered this last question for Dr Buchanan in its decision,3 but its refusal to allow Ms McDonald to confirm this point with the witness himself, and the absence of any reference to the code of conduct in his statements of evidence, have led to doubts in the applicant’s mind.
Should the respondents be abiding the decision of the Court?
[12] I pause to reflect that one of the unusual features of this litigation is the active role the first respondent is taking in respect of an application for judicial review of its decision. It is a well-established principle that decision-makers should not become protagonists in appeals from their own decisions.4 The same principle applies in respect of applications for judicial review of decisions by judicial and quasi-judicial
3 Disciplinary Committee decision, above n 1, at [203].
4 Secretary for Internal Affairs v Pub Charity [2013] NZCA 627, [2014] NZAR 177 at [27].
bodies. Rather, it is usual for such bodies, when challenged, to abide the Court’s decision.5 Doing so avoids them setting out to defend themselves or entering the fray.6
[13] Yet, in the present case, the first respondent is actively defending its own decision. This is noteworthy given the concerns raised by Ms McDonald (including at the Committee hearing itself) about the Committee entering the fray.7 As well, the fact that the application for discovery relates to procedural concerns about the relationship between the Committee and its witness might give the respondents further cause consider whether it is appropriate for the Committee to continue to actively defend itself in the present proceeding.
[14] I will say no more about this aspect for now. Ms McDonald did not take the point. Nor did I call for further submissions, as it does not affect my decision on the discovery application before me. But I mention it because it may have implications for the way in which the parties argue the substantive judicial review application, including whether there is a need for another contradictor, or counsel assisting the Court, to be appointed.
Discovery in judicial review proceedings
[15] A judge can require a party to a judicial review proceeding to discover and/or produce documents.8 However, in judicial review proceedings it is recognised that:
(a)discovery is discretionary, in marked contrast from the position that applies in an ordinary proceeding;9
5 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at [22.14]; Graham Taylor Judicial Review A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [8.23]; Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [JR9.02].
6 Joseph on Constitutional and Administrative Law, above n 5, at [22.14], citing New Zealand Engineering, Coachbuilding, Aircraft, Motor and Related Trades Industrial Union of Workers v Court of Arbitration [1976] 2 NZLR 283 (CA) at 284–285; Moir v IHC New Zealand Inc [2019] NZCA 92 at [33]; Shaw v Attorney-General [2002] NZAR 987 at [28].
7 Transcript of Disciplinary Committee hearing at 00:23:50.
8 Judicial Review Procedure Act 2016, s 14(2)(h).
9 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [20]. See also Gama Foundation v Chief Executive of the Ministry of Social Development [2021] NZHC 3146 at [7]– [8], citing Te Runanga O Ngāti Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007 at [6] and New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs [2017] NZHC 3232, (2017) 24 PRNZ 409 at [28].
(b)judges are responsible for narrowing issues and supervising the proceeding to ensure that the material placed before the Court is reduced to the necessary minimum;10
(c)the touchstones for discovery are relevance of the material to the proceeding, necessity of disclosure of the material in the circumstances, and proportionality;11
(d)discovery is not usually granted in judicial review proceedings, for the most part because it is unnecessary;12
(e)public authority decision-makers usually disclose relevant documentation in affidavit evidence without the need for specific orders;13
(f)public authorities owe a “duty of candour” in relation to the provision of relevant background documents to the decision under review;14
(g)the Court must assess what discovery is required to enable an applicant to fairly argue their case, consistent with the objective of judicial review being a simple, untechnical and prompt procedure;15
(h)while a decision-maker should undertake due diligence to locate documents relevant to the pleaded case, whether they support or undermine the lawfulness of the decision, there is no obligation to locate every document that could possibly be relevant to the subject matter of the decision and where the line should be drawn is context specific;16
10 BNZ Investments Ltd v Commissioner of Inland Revenue HC Wellington CIV-2006-485-697, 7 December 2006.
11 Te Runanga O Ngāti Awa v Attorney-General, above n 9; Aokautere Land Holdings Ltd v Commissioner of Inland Revenue [2023] NZHC 1839, (2023) 31 NZTC 26-005 at [53].
12 Ririnui v Landcorp Farming Ltd (No 1) [2014] NZHC 732.
13 At [5].
14 Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 74, [2018] NZAR 275.
15 Gama Foundation v Chief Executive of the Ministry of Social Development, above n 9, at [10].
16 Kim v Minister of Justice [2024] NZHC 2183 at [14].
(i)relevance is determined by the issues as pleaded and discovery orders of a “fishing” nature are not part of tailored discovery. Orders will not be granted where the categories do not relate to a pleaded relevant issue, but rather a non-pleaded issue which might be pleaded should discovery reveal documents that support such a pleading.17
[16] The applicant submits that discovery is necessary to ensure the issues raised on the pleadings can be fairly and effectively adjudicated by the Court. He says the documents sought are relevant and relate to pleaded allegations and that discovery of them is necessary and proportionate. The respondents, on the other hand, say that the discovery sought here is in the nature of a “fishing expedition”.
Categories of documents the applicant seeks
Category one: documents (including any draft statement of evidence) prepared for or by Dr Buchanan in relation to Dr Buchanan’s proposed evidence
[17] The first category of documents the applicant seeks includes documents prepared by or for Dr Buchanan in relation to the contents of his proposed evidence to the Committee. The applicant says this category is important because he is alleging bias and procedural unfairness by the Committee. It follows, he says, that this category of disclosure is necessary to show what input the Committee or its representatives (including legal counsel) had into the contents of Dr Buchanan’s proposed evidence.
[18] The applicant also submits that this category of documents is relevant to his error of law cause of action, in which he alleges the Disciplinary Committee unlawfully claimed privilege in respect of such documents. Some communications with Dr Buchanan, including some drafts of his first statement, have been disclosed to the applicant. However, he submits that at least two key versions of the statement were not disclosed, namely the first version prepared by Dr Buchanan and the draft containing changes made by the Disciplinary Committee’s representative prior to signing. The applicant submits it is also unclear whether he was provided with the final draft of the statement before it was signed.
17 Commerce Commission v Cathay Pacific Ltd [2012] NZHC 726 at [13].
[19] Further, the applicant submits he has not been provided with any material concerning the content or genesis of Dr Buchanan’s second statement.
Category two: Documents prepared by or on behalf of Dr Buchanan referring to the contents of the applicant’s evidence
[20] The second category of documents sought are documents prepared for or by Dr Buchanan referring to the contents of any evidence filed on behalf of the applicant.
[21] The applicant refers to comments made by Dr Buchanan in his second statement that, before preparing that statement, he had been communicating with the Chair of the Disciplinary Committee about the content of the evidence filed on behalf of the applicant. The applicant submits this shows Dr Buchanan had been commenting on his evidence and that this had been communicated to the Chair. The applicant submits any such documents will be highly relevant to his bias, procedural fairness and unreasonableness causes of action. He submits the principles of natural justice required the Disciplinary Committee to disclose to him any information it received that was adverse to his position, to give him a fair opportunity to respond to and contradict it. The applicant submits he was entitled to see what was said by Dr Buchanan to the Disciplinary Committee on all topics so that he had the opportunity to respond to it. The applicant submits these documents are also relevant to his error of law cause of action, in particular what he describes as the unlawful claim to privilege.
[22] The applicant asked for this material before the Disciplinary Committee hearing. He submits that the Disciplinary Committee was put on notice on 5 December 2023 that he would be challenging its decision to refuse to disclose such documents to him and it was asked not to destroy any such documents. As such, he submits it is his expectation that the Disciplinary Committee would retain control of any such documents.
[23] Further, the applicant submits that, to the extent any such documents are within Dr Buchanan’s possession, they are still within the Disciplinary Committee’s control, given that Dr Buchanan was engaged as the Disciplinary Committee’s witness.
Category three: all communications between or on behalf of the Disciplinary Committee and/or IPENZ and Dr Buchanan
[24] The third category of documents sought includes all communications between or on behalf of the respondents and Dr Buchanan. The applicant refers to Dr Buchanan’s evidence that he had been communicating directly with the Chair of the Disciplinary Committee. The applicant also submits for this purpose that any information obtained by the Disciplinary Committee’s legal counsel for Dr Buchanan must be treated as being held by the Disciplinary Committee itself. Similarly, any input into Dr Buchanan’s statements by legal counsel was made on behalf of the Committee and presumably at its direction. The applicant submits there is no evidence before the Court that any confidentiality agreements were in place. Nor, he submits, is there any other reason the Disciplinary Committee’s legal counsel did not discuss with the Committee or refer to it the communications they had with Dr Buchanan regarding his evidence or that of the applicant.
[25] The applicant submits that communications between or on behalf of the respondents and Dr Buchanan will be relevant to the degree of input and/or prior knowledge the Disciplinary Committee had into or of Dr Buchanan’s evidence. This, the applicant submits, is relevant to both:
(a)the extent to which the Disciplinary Committee had adverse information that it did not pass on to him; and
(b)when it received such information, which may be relevant to an argument that he was not provided with a fair opportunity to contradict it.
[26] The applicant submits he needs the third category documents to establish the factual circumstances from which he will argue a finding of apparent bias can be made.
[27] The applicant also submits that these third category documents will be relevant to his allegations of unreasonableness. In particular, he alleges that Dr Buchanan was not provided with the 1986 IPENZ handbook, which in addition to containing the
IPENZ Rules 1986 and the Code of Ethics, included detailed requirements relating to the supervision of engineers at the time the CTV building was designed and built.
Category four: documents referring to Dr Buchanan’s evidence or communications between the respondents and Dr Buchanan
[28] The fourth category of documents sought includes documents prepared by or on behalf of the respondents considering or referring to Dr Buchanan’s evidence or any communications between or on behalf of the respondents and Dr Buchanan.
[29] This category is only intended to capture documents prepared before the commencement of the hearing. The applicant accepts that genuine deliberations by the Disciplinary Committee are not discoverable.
[30] As will be apparent from the above descriptions, the categories overlap to some degree.
Why the respondents say discovery should be resisted
[31] The respondents submit that discovery of the documents sought by the applicant is not warranted. The nature of the respondents’ inquisitorial processes means that the Disciplinary Committee’s decision stands on its own and discovery is not required. A challenge of the decision-making process is not, in itself a reason to justify discovery of documents to establish factual circumstances from which a finding of apparent bias can be made. The fact that the applicant seeks documents for this purpose suggests he is undertaking a fishing expedition, which the Court should resist.
[32] The respondents submit they have met their duty of candour to the Court by filing an affidavit and that the applicant has previously been provided with substantial volumes of correspondence, documents and reports. As this information has been filed with the Court by the applicant, the Court is as fully informed as reasonably possible of the facts and issues as they presented themselves at the time to the Committee.18
18 Citing Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 346.
[33] Even if the Court were to exercise its discretion in favour of discovery, the respondents submit that the categories of documents sought by the applicant are privileged. The respondents have filed a closed bundle of documents with the Court and seek confirmation that they are not required to disclose those documents as they are privileged.
[34] In relation to the apparent bias ground of review, the respondents submit that given the test for apparent bias does not depend on actual bias, the documents sought by the applicant are not relevant to that question. Rather, the respondents submit that an objective observer would not have concerns about communications between the Disciplinary Committee and Dr Buchanan before the hearing. Rather, the Committee has acted consistently with its inquisitorial role. To do otherwise than to limit the scope of the challenge to the record of decision-making provided, would be for the Court to condone a “fishing expedition”.
Procedural unfairness
[35] The respondents argue that the applicant’s discovery application is “thin” when measured against the procedural unfairness ground of review. They submit Dr Buchanan’s second statement was a response to queries raised by the applicant, who had the benefit of representation by experienced counsel at the hearing.
[36] Moreover, the respondents refute the applicant’s allegation that there was adverse commentary about him between Dr Buchanan and the Disciplinary Committee Chair.
My assessment
The Disciplinary Committee’s decision does not stand on its own
[37] The applicant’s challenge to the Disciplinary Committee’s decision is advanced on procedural grounds, as is appropriate in an application for judicial review. I do not accept the respondents’ submission that this discovery application can be resisted on the basis that “the Decision stands on its own”. Rather, the applicant’s judicial review concerns the relationship between the Committee and its expert
witness Dr Buchanan. This means that documents evidencing interactions between the Committee and Dr Buchanan are relevant on the applicant’s pleaded case.
[38] For example, in respect of the applicant’s allegations of bias, these allegations require scrutiny of the relationship between the Disciplinary Committee and Dr Buchanan. Dr Buchanan appeared as the Committee’s own expert witness rather than as a witness put forward by a party. The Committee Chair acknowledged in a letter to Ms McDonald dated 5 December 2023 that this was an unusual situation, arising because the original complainant took no part in the process. It is in this “unusual situation” that the applicant calls into question Dr Buchanan’s independence from the Committee.
[39] At the hearing, Ms McDonald referred to extensive portions of the transcript of the Disciplinary Committee hearing, in which the Chair of the Committee restricted her from asking questions relating to the briefing process undertaken by the Disciplinary Committee in preparing Dr Buchanan’s written evidence, in particular relating to when he was instructed, how and when he was briefed, what information he based his evidence on and why. The Chair said:19
Ms McDonald, we’re not going to allow you to pursue a line of questioning that doesn’t doesn’t, that doesn’t help the committee to understand the issues that are in front of it, the engineering issues, the supervision issues that relate to the complaint. So, anything procedural, will just have to wait till later. That’s not a question, those aren’t questions for this committee. So what I would like you to do please is to is to, move on to the substantive questions that you do have for Doctor Buchanan.
[40]Ms McDonald responded:
Mr Chairman, the High Court, when it delivered its decision on the judicial review, made it very clear that this committee would deal with procedural matters and it highlighted in particular the question of delay. Your counsel at the time, Miss Clark, stood up and addressed the High Court judge and said that this committee would deal with matters of procedure and the High Court didn't need to bother itself with that. She provided that assurance to the High Court and it was on that basis that Justice Radich, at least in part, said, and it’s recorded in his decision that this tribunal will deal with matters of process. I I have been practising for 40 years. I have appeared in every court in this country and many, many tribunals. I have never, ever, experienced process like this. My question was to the witness, when were you instructed? There is
19 Transcript of Disciplinary Committee hearing at 00:45:24. The Disciplinary Committee referred to this exchange in its decision, above n 1, at [199].
nothing offensive about that question. There is nothing unusual about that question. It is entirely proper and regular question. It is an absolute outrage that this committee would stop me asking a question like that of this witness.
[41]However, the Chair was not persuaded to alter his approach:
Nevertheless, we are going to stop you from asking those questions.
[42] Ms McDonald continued to ask questions relating to the applicant’s procedural concerns, because it was important they be in the record. Ms McDonald’s questions, and the Chair’s refusal to allow the witness to answer them, occupy the next four pages of the transcript. Ms McDonald submitted to this Court that she had never experienced anything like this before when questioning an expert witness. She submits that the documents the applicant seeks in the present discovery application relate to the questions she was attempting to ask Dr Buchanan, but was prevented from doing so.
[43] I accept Ms McDonald’s submission that these excerpts from the transcript, recording the Chair’s refusal to allow Ms McDonald to ask Dr Buchanan questions, are concerning. These interactions have understandably caused the applicant to question the appropriateness of the relationship between Dr Buchanan and the Committee. In my view, the applicant should be entitled to explore his concerns through the discovery process in the relatively confined manner he proposes in his discovery application. As part of its duty of candour, the Disciplinary Committee is obliged to assist the respondent, and the Court, by disclosing the full record of its interactions with Dr Buchanan. Discovery will allow further assessment of the respondents’ briefing process, the capacity in which Dr Buchanan was giving evidence, whether he had complied with the High Court code of conduct for expert witnesses, the extent of his expertise and the basis for his evidence. I also accept discovery is necessary for the applicant to assess what input the Committee or its representatives (including legal counsel) had into the contents of Dr Buchanan’s proposed evidence.
[44] The applicant alleges that information provided to the Disciplinary Committee by Dr Buchanan was relied upon in making its decision without him having had notice of these communications or an adequate opportunity to respond. Based on comments made in his second statement, the applicant alleges that Dr Buchanan communicated
his comments on the applicant’s evidence directly to the Committee Chair. The respondents say that, as its expert witness, the Committee was entitled to have a private channel of communication with Dr Buchanan. I do not accept that proposition. If he was the Committee’s expert witness, he had a duty to be impartial. Giving disclosure in respect of all communications to the applicant will allow scrutiny over whether that duty of impartiality was upheld. Moreover, there are legitimate questions about whether the Committee can have adequately complied with its natural justice obligations to the applicant, at the same time as having a private channel of communications with its witness.
[45] The fact that some of the communications between the Committee and Dr Buchanan have been disclosed to him, but others withheld, has fuelled the applicant’s suspicions. I am unsure why the Committee distinguished between what it provided the applicant and what it chose to withhold. That distinction has led to further questions by the applicant about what was left out from these communications and why. In my view, these questions can only be answered by disclosing to him all such communications (subject to legitimate withholding on deliberative privacy grounds, which I address further below). Nor do I accept that the Committee’s inquisitorial approach means less discovery is warranted. As Ms McDonald submits, judicial review is “a process which falls to be conducted with all the cards face upwards on the table…”.20 Given the Committee’s (apparent) dual role as both prosecutor and decision-maker, maintaining trust in the integrity of the Committee’s process and ensuring compliance with its duty of candour means it cannot keep some of the cards close to its chest.
[46] The respondents may be correct that nothing within the categories of information requested supports the applicant’s allegation of procedural unfairness. But I do not consider the Committee can reasonably expect him to trust its assessment without disclosure of that information in the usual way.
[47] I have considered whether the Court could fairly and effectively adjudicate the issues raised in the applicant’s judicial review without discovery. But because the
20 R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941 at 945g.
material sought by the applicant is relevant on his pleadings, I am persuaded that he should be entitled to discovery of this material within the confined and proportionate range of material contained in the four categories sought in his application.
[48] However, I have reservations about whether it is appropriate to order disclosure of material that is held by Dr Buchanan, but not by the Committee. Documents he has produced in the course of preparing his statements, but has retained as his own property, such as drafts or working papers that have not been supplied to the respondents, will not be discoverable.21 Apart from that exception, I reject the respondents’ ground of opposition that discovery of the documents sought is not necessary to allow the applicant to fairly argue his application for judicial review. I consider that the respondents’ duty of candour obliges them to make discovery of the categories of discovery sought by him.
[49] I turn now to the respondents’ submission that, even if I am persuaded to order discovery, the documents the applicant seeks are privileged, being subject to:
(a)“deliberative privilege”;
(b)legal advice privilege; and
(c)litigation privilege.
“Deliberative privilege”
[50] The respondents submit that deliberative privilege is a form of confidentiality which exists in relation to the deliberations of a tribunal under review and the confidentiality of deliberative processes.22 Deliberative materials can include documents preceding the judgment or decision delivered and so it includes documents covered by the application, namely any documents prepared by the Committee in advance of the hearing.
21 Guttenbeil v Tower Insurance Ltd [2012] NZHC 2106 at [29]; and NZX Ltd v Ralec Commodities Pty Ltd [2015] NZHC 3041 at [185].
22 Citing Comalco NZ Ltd v Broadcasting Standards Authority [1995] 3 NZLR 469 (HC); Comalco NZ Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA) and ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA).
[51] It has long been recognised that deliberative materials are not normally disclosed, to protect the integrity of the judicial processes of judicial and quasi-judicial bodies.23 Rather than a privilege in the strict sense, it was described by the Court of Appeal as “deliberative privacy” in ENZA Ltd v Apple and Pear Export Permits Committee,24 in which the Court said:
[23] … Upholding the privacy interest [of such materials] protects the independence of such bodies against unwarranted intrusions on members’ thought processes, including their exchanges of ideas, as they move towards their collective decisions. It also enhances the public’s perception of their independence and the integrity of their decisions.
[24] There may be occasions in which special circumstances indicate there is a greater public interest, outweighing that of deliberative privacy, which warrants intrusion into members’ thought processes beyond what is revealed by the reasons given by the body for its decision … [such as] bias or similar wrongdoing. …
[52] In that case the Court of Appeal upheld the High Court’s decision to dismiss an application for orders requiring the Apple and Pear Export Permits Committee to produce for inspection notes and minutes of meetings during which the Committee deliberated on or discussed applications made to it for export permits. The Court referred to McGechan J’s explanation of the reason for upholding the privacy interest in deliberative materials in Comalco New Zealand Ltd v Broadcasting Standards Authority:25
McGechan J accepted that evidence of deliberations was not admissible evidence in the proceeding but held that it was nevertheless discoverable material because it was relevant. It might for instance lead to a train of inquiry advancing the case of the party seeking the material. Because however the tribunal could not be required to give evidence of its thinking processes nothing produced could be used in evidence. Furthermore there was a public interest in preserving the privacy of what was done in the deliberative stage by Courts and tribunals such as the authority. That public interest went to the need to preserve public confidence in such bodies and there was a real danger of damaging misconceptions if it were not respected.
[53] I do not accept that the documents the applicant seeks in the first three categories are subject to deliberative privacy. In my view, deliberative privacy cannot
23 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2024] NZCA 695, (2024) 26 PRNZ 672 at [52].
24 ENZA Ltd v Apple and Pear Export Permits Committee, above n 22, at [24].
25 At [21], citing Comalco NZ Ltd v Broadcasting Standards Authority, above n 22. McGechan J’s decision was upheld by the Court of Appeal, Comalco NZ Ltd v Broadcasting Standards Authority, above n 22, (Court of Appeal, CA 148/95, 14 December 1995).
apply to the evidence of, and communications, with Dr Buchanan. He was not a member of the decision-making body. Rather, he was engaged by the Committee as an expert witness to give evidence in the proceeding. Indeed, Dr Buchanan was the only person to give evidence at the hearing on the issue of supervision.26 I accept Ms McDonald’s submission that deliberative privacy does not extend to an expert witness appearing before a decision-maker to give evidence in the proceeding.
[54] There are strong policy grounds not to extend the application of deliberative privacy to include communications with a witness such as Dr Buchanan. Natural justice requirements mean that evidence of this nature ought not to be obtained by a decision-maker behind closed doors, especially in disciplinary proceedings where the need for natural justice is particularly acute.
[55] The applicant needed to have the opportunity to respond to and contradict any information communicated between Dr Buchanan in his role as expert witness and the Committee. I accept that the primary purpose of the present discovery application is to ensure that the applicant can effectively assess whether there was a need to do so. In the context of this judicial review, that means all communications between the Committee and him should be disclosed.
[56] However, as the applicant acknowledges in the way he has framed his fourth category to exclude post-hearing documents, disclosure of truly deliberative material is not required.
Legal advice privilege
[57] The respondents’ claim to legal advice privilege in relation to communications between the Chair of the Disciplinary Committee and its legal counsel is valid in principle. However, such privilege cannot apply to communications with Dr Buchanan, because he was not the legal advisor’s client. Therefore, I accept that communications between legal counsel and Dr Buchanan cannot be subject to legal advice privilege. This means that:
26 See Disciplinary Committee decision, above n 1, at [151].
(a)the Disciplinary Committee Chair was wrong to refuse to provide communications between the Committee and Dr Buchanan when he wrote to the applicant’s lawyer to that effect on 30 November 2023; and
(b)the respondents were wrong to invoke legal advice privilege as the basis for withholding these communications in the context of the present application.
Litigation privilege for preparatory materials
[58] The respondents claim that all communications between Dr Buchanan and the Disciplinary Committee’s legal counsel are protected by litigation privilege as preparatory materials for proceedings.
[59] I accept Ms McDonald’s submission that the respondents cannot claim litigation privilege in respect of communications with Dr Buchanan.
[60] The purpose of litigation privilege is to ensure the effective conduct of litigation in an adversarial system by safeguarding a party to court proceedings from having to disclose material gathered in preparation for litigation from their opponent.27 Litigation privilege applies to parties to a “proceeding”.28 The Disciplinary Committee hearing is not a “proceeding” for the purposes of the Evidence Act, as this term is limited to a proceeding conducted by a court and therefore does not apply to a tribunal such as the Disciplinary Committee.29 As the Committee itself recognised, it was not a court, but was carrying out an inquisitorial disciplinary process.30
[61] Even if the Disciplinary Committee could be regarded as a court for the purposes of litigation privilege, the Committee was not a party to a proceeding. Rather, it is the decision-maker and, as decision-maker, it cannot claim litigation privilege.31
27 Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145 (CA) at [31].
28 Evidence Act 2006, s 56.
29 Section 4, definition of “proceeding”.
30 Disciplinary Committee decision, above n 1, at [188].
31 Guardian Royal Exchange Assurance of NZ Ltd v Stuart [1985] 1 NZLR 596 at 602 line 13, 605 lines 38 and 50–53.
[62] Counsel for the respondents described the Disciplinary Committee’s function in the following way in their submissions on the present application:
The disciplinary process, while being inquisitorial in nature, remains a proceeding in the sense that parties provide submissions and examine witnesses with the Disciplinary Committee providing a written decision with reasons and reliance on legal principles. However, this process, unlike many other professional disciplinary processes, is internally run within a professional body, being IPENZ.
This means that while there is no “prosecutor” in hearings before the Disciplinary Committee, the Disciplinary Committee may obtain additional evidence in the same manner as the investigating committee. In this way, the Disciplinary Committee acts as both an investigator and decision-maker, and so making it a de facto party to the proceeding.
[63] In my view, this analysis conflates the Committee’s inquisitorial role with the role of a litigant in adversarial litigation. The policy behind the privilege contained in s 56 is the interests of justice in proper preparation for litigation.32 As such, it operates as a limitation on the general policy of openness and disclosure in adversarial litigation.33 Outside the context of deliberative privacy, which I have already found does not apply in this context, there is no basis for extending litigation privilege to apply to an inquisitorial decision-maker such as the Disciplinary Committee. Doing so, in my view, would cut across the application of natural justice principles which must be observed by the Committee in exercising its power to make a determination in respect of the applicant’s rights, obligations, or interests protected or recognised by law.34
Conclusion
[64] I consider that an order for tailored discovery would be proportionate, limited as it is to four confined categories of documents which are easily identifiable and relate to a short period. It is unlikely to require discovery of a large number of documents, will not be particularly onerous and can occur relatively quickly before the hearing.
32 Jeffries v Privacy Commissioner [2010] NZSC 99, [2011] 1 NZLR 45 at [16].
33 At [19].
34 New Zealand Bill of Rights Act 1990, s 27(1).
The respondents’ closed bundle of documents
[65] I have not reviewed the closed bundle of documents provided by the respondents. The applicant submitted I should not do so. Ms McDonald submitted that the list of documents was incomplete and the format of the list did not follow that required under the High Court Rules 2016. I accept Ms McDonald’s submission that a proper affidavit of documents in accordance with the Rules is required to achieve the purpose of a list of documents, as described by Tompkins J in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart:35
An affidavit of documents serves two objects. For documents discovered in the first part of the first schedule, it enables disclosure of their nature and significance so that the party seeking discovery can decide whether to seek production. It also enables the Court to order their production and to ensure that such order is enforced.
For documents discovered in the second part it enables the party seeking discovery to become aware of the documents for which privilege is claimed and to judge whether that claim should be challenged. This object will only be achieved if the documents are described with sufficient particularity.
Result
[66] For these reasons, the respondents are required to provide the applicant with an affidavit of documents complying with the High Court Rules and including the documents in the four categories set out in the schedule to this judgment, subject to the exception I have discussed above at [48].
[67] In the first instance, I direct the parties to provide the Court with a joint memorandum no later than 25 July 2025 setting out timetable directions to ensure the discovery and inspection process is completed in time for the substantive hearing of the judicial review application (scheduled for 8 and 9 September 2025). This memorandum is to be considered by the Duty Judge, who can make the timetable directions sought on the papers.
35 Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart, above n 31, at 607.
Costs
[68] As successful party, the applicant is entitled to 2B costs on this application. If possible these are to be agreed, but counsel may file memoranda of two pages or less if there are any points of disagreement.
McHerron J
Solicitors:
Buddle Findlay, Christchurch for Applicant Dentons, Wellington for Respondents
Schedule – Categories of documents sought
1.Any documents, including any draft statements of evidence, prepared for or by Dr Buchanan in relation to the contents of Dr Buchanan's proposed evidence for the Disciplinary Committee Hearing;
2.Any documents prepared by or on behalf of Dr Buchanan referring to the contents of any evidence filed on behalf of Dr Reay for the Disciplinary Hearing;
3.All communications between or on behalf of the Disciplinary Committee and/or IPENZ and Dr Buchanan; and
4.Any documents prepared in advance of the Disciplinary Committee Hearing prepared by or on behalf of the Disciplinary Committee and/or IPENZ considering or referring to:
(a) The contents of Dr Buchanan's proposed evidence; and/or
(b) Any communications between or on behalf of the Disciplinary Committee and/or IPENZ and Dr Buchanan.
0
14
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