ALAN MICHAEL REAY v ATTORNEY-GENERAL & ANOR [2019] NZCA 475

ALAN MICHAEL REAY v ATTORNEY-GENERAL & ANOR [2019] NZCA 475 [2 October 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA17/2019[2019] NZCA 475BETWEEN ALAN MICHAEL REAYAppellantAND ATTORNEY-GENERALFirst RespondentAND INSTITUTION OF PROFESSIONALENGINEERS NEW ZEALANDINCORPORATEDSecond RespondentHearing: 20 June 2019Court: Miller, Gilbert and Stevens JJCounsel: N S Gedye QC and W J Palmer for AppellantK G Stephen and IMG Clarke for First RespondentHJP Wilson and M J Neill for Second RespondentJudgment: 2 October 2019 at 3.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the first respondent costs for a standard appealon a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The question in this appeal is whether the Institution of Professional EngineersNew Zealand (IPENZ), an incorporated society, may continue disciplinaryproceedings against a member who resigned before a complaint against him wasdetermined.1Background[2] In 1986 Dr Alan Reay's engineering firm designed the Canterbury Television(CTV) building, which collapsed with loss of life during the Christchurch earthquakeof 22 February 2011. He was the firm's sole principal and a very experienced engineer.Much of the structural design work was done by an employee, David Harding,an engineer who is said to have been insufficiently experienced with multi-storeybuildings and inadequately supervised. We note that Dr Reay denies these claims.The building's collapse has been attributed to defective structural design.2[3] Dr Reay was a member of IPENZ when the building was designed, as wasMr Harding. In December 2012 a complaint was brought against Dr Reay by a fellowIPENZ member, Michael Stannard.3 IPENZ began an investigation under its rules.A complaints research officer recommended that the complaint go to an InvestigatingCommittee. Dr Reay appeared before the committee, which duly prepared a draftrecommendation that the complaint be referred to a Disciplinary Committee.On 28 February 2014, before the Committee's draft recommendation was circulated,Dr Reay resigned from IPENZ. He denies that he did so from fear of the disciplinaryprocess.[4] IPENZ accepted Dr Reay's resignation. It took advice, which was that therewas now no available basis on which to discipline Dr Reay and for that reasona Disciplinary Committee would have to dismiss the complaint. The advice wasaccepted and the complaint was dismissed accordingly on 9 April 2014. Dr Reay1 IPENZ is now called Engineering New Zealand.2 Canterbury Earthquakes Royal Commission Final Report: Canterbury Television Building (RoyalCommission Report, Vol 6, 7 December 2012) [Royal Commission Final Report Vol 6] at 7.4.3 Mr Stannard was at the time Chief Engineer at the Ministry of Business, Innovation andEmployment. He complained because his role at MBIE gave him a leadership position withinthe engineering profession and he believed a complaint was necessary to ensure IPENZ wouldtake action against Dr Reay.discontinued proceedings he had brought seeking a declaration that IPENZ lackedjurisdiction to discipline him.[5] In the meantime, disciplinary proceedings had been brought againstMr Harding, who also resigned and claimed that he could not now be disciplined.He sought judicial review when IPENZ rejected his claim. We have not been told whyIPENZ took apparently incompatible positions in the disciplinary proceedings againstDr Reay and Mr Harding.[6] On 17 September 2014 Mander J dismissed Mr Harding's application forjudicial review, concluding that the resignation did not compel IPENZ to discontinueits disciplinary proceedings.4 It sufficed that Mr Harding was a member at the time ofthe relevant conduct and when the complaint was made. A Disciplinary Committeelater declared that Mr Harding had breached IPENZ's Code of Ethics, which wasgrounds for discipline, but imposed no penalties.5[7] The Attorney-General invited IPENZ to consider its decision in Dr Reay's casein light of Mander J's decision. It declined, reasoning that it was functus officio.The Attorney-General then moved for judicial review, which was granted by Collins Jin the judgment under appeal.6 The Judge found that the Attorney had standing andthat IPENZ had dismissed the complaint through an error of law.7 Contrary tothe advice on which IPENZ had relied, a "Member" under the rules includes a memberwho resigns before disciplinary proceedings against him are concluded.8 He identifieda public interest in allowing IPENZ to review Dr Reay's conduct in relation tothe CTV building but left it to IPENZ to decide whether it wished to prosecute thecomplaint.9 He granted declarations accordingly. They were:10(1) The Institution has jurisdiction to investigate, hear anddetermine Mr Stannard's complaint.4 Harding v Institution of Professional Engineers NZ Inc [Harding v IPENZ] [2014] NZHC 2251,[2014] NZAR 1252.5 Elms v Harding (Institution of Professional Engineers New Zealand, Disciplinary Committee,Decision No 227-02 141003, 23 October 2014).6 Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 3211,[2019] 2 NZLR 731 [Judgment on appeal].7 At [122].8 At [104].9 At [121].10 At [122].(2) The Investigating Committee was wrong in law to dismissMr Stannard's complaint.The appeal[8] The first question on appeal is whether the term "Member" only meansa current member. The second question is whether relief ought to be declined ondiscretionary grounds.[9] Dr Reay's case is that this is a question of private contractual rights betweenan incorporated society and its former member. The definition of "Member" is clear;it means current members only. When considering this question Collins J erred bytaking into account contextual material and by referring to extrinsic material whichwas not mentioned in argument. Mr Harding's case was also wrongly decided byMander J for the same reasons.[10] Dr Reay says that Collins J was also wrong to grant relief tothe Attorney-General. The fact that the CTV building collapse is a matter of interestto the public was irrelevant to the narrow issue of rule interpretation before the Court.Relief also ought to have been declined because public accountability has already beenexacted: a Royal Commission dealt with the reasons for the building collapse andMBIE and the Police also investigated it.11 There was no public interest in the onlyremaining question: the extent of Dr Reay's professional responsibility. Thecomplaint is also stale — the conduct under review happened in 1986 — and there hasbeen much delay since Mr Stannard lodged it in 2012. The consequences for Dr Reaywill be disproportionate to his involvement; he spent three and a half hours on theproject while Mr Harding spent 304.[11] We turn to the rules and regulations of IPENZ that govern the disciplinaryprocess in this case.11 Royal Commission Final Report Vol 6, above n 2; New Zealand Department of Building andHousing Structural Performance of Christchurch CBD Buildings in the 22 February 2011Aftershock (Ministry of Business, Innovation and Employment, Expert Panel Report, February2012); and New Zealand Police CTV Building 249 Madras Street, Christchurch: CriminalInvestigation Report for the Crown Solicitor (Report for Crown Solicitor, 26 May 2017).IPENZ[12] IPENZ is an incorporated society which was registered as such in 1914.In 1986 its rules (the 1986 Rules) provided that it existed to advance the science andprofession of engineering.12 The rules in effect at the time of the complaint in 2012(the Rules) elaborated somewhat upon this objective. They provided that the objectiveof IPENZ was to advance "the professions of engineering" by, among other things,contributing to the development of good engineering practice, recognising, regulatingand supporting those demonstrating competence in the engineering professions, andcontributing to the needs of the community.13[13] In 1986 membership was open to engineers holding academic or practicalqualifications, practical experience and positions of responsibility. The then current1986 Rules set standards of professional conduct and provided for a Code of Ethics:SECTION 18PROFESSIONAL CONDUCT AND DISCIPLINE18.2 Each member shall so conduct himself as to uphold the dignity,standing and reputation of the Institution and of the profession andwith due regard to the public interest, especially in matters of healthand safety. Each member, at his level of engineering activity, shallexercise his professional or technical skill and judgement at leastaccording to the normally accepted standards of the profession and tothe best of his ability, and shall discharge his professional andtechnical responsibilities with integrity.18.3 The Council shall prescribe Regulations for the observance ofthe foregoing professional standards and shall prescribe a Code ofEthics and Code of Professional Practice for Consulting Engineersboth of which Codes shall have the force of Regulations and shall bemade known to members in the manner prescribed in Section 24 ofthe Rules of the Institution.[14] It has never been necessary to register as an engineer, a fact which may reflectdiverse forms of specialisation and fields of practice. Nor has it been necessary forpractising engineers to join a professional organisation such as IPENZ. But legislation12 Handbook No 1 Rules of the Institution of Professional Engineers New Zealand Incorporated(1986).13 IPENZ Engineers New Zealand Rules (March 2010), r 3.has long provided for registration. Under the Engineers Registration Act 1924(the 1924 Act) a Registration Board of six persons was set up to administer a voluntaryregistration system. Three of the Board members were appointed onthe recommendation of IPENZ,14 but IPENZ itself did not enjoy any regulatoryfunctions or powers under the legislation. Engineers might be removed fromthe register for improper conduct or for committing any offence punishable byimprisonment or dishonouring themselves in the public estimation.15[15] IPENZ first published a Code of Ethics for its members in 1964.16 It hadpreviously regulated the behaviour of members through its rules. For example, rulesin effect in 1963 provided that members must order their conduct so as to upholdthe dignity, standing and reputation of the profession.17[16] Dr Reay joined IPENZ in 1970. He later became an IPENZ Fellow.[17] At the time the CTV building was being designed, the Code of Ethics referredto r 18.2, which we have quoted above, and went on to prescribe a number ofobligations, including:181. Each member shall exercise his professional and technical skill andjudgement to the best of his ability and shall discharge his professionaland technical responsibilities with integrity.It is against this version of the Code of Ethics and the standard of behaviour prescribedby r 18.2 that Dr Reay's conduct would be measured.[18] The Chartered Professional Engineers of New Zealand Act 2002 (CPENZ Act)replaced the 1924 Act. It provides the current registration regime for engineers inNew Zealand, it establishes the title of "chartered professional engineer" as a mark ofquality, and administers a code of ethics and professional disciplinary regime.1914 Engineers Registration Act 1924, s 3(1).15 Section 11.16 Peter Cooke An Evolving Order: The Institution of Professional Engineers New Zealand, 1914–2014 (Institution of Professional Engineers New Zealand, Wellington, 2014) at 88.17 At 88, citing New Zealand Institution of Engineers Annual Report (1963) at 10.18 Professional Information for Members of the Institution of Professional Engineers New ZealandIncorporated (Institution of Professional Engineers New Zealand, 1986) at ch 4.19 Chartered Professional Engineers of New Zealand Rules (No 2) 2002 (CPENZ Rules),rr 42A−42I.Registration is necessary if an engineer is to perform some functions underthe Building Act 2004.20 IPENZ also serves as the Registration Authority underthe CPENZ Act,21 charged with administering the registration system, establishinga code of ethics and disciplinary processes, and deciding complaints about charteredprofessional engineers.22[19] Dr Reay became a chartered professional engineer in 2011, but it is not in thatcapacity that he would be disciplined for what he did in 1986. He would be disciplinedas a member of IPENZ, a status that he held both in 1986 and in 2012. The IPENZdisciplinary process parallels that for a chartered professional engineer becauseits regulations were established by IPENZ in 2010 in its capacity as the RegistrationAuthority under the CPENZ Act.[20] Members agree on admission to adhere to the rules, regulations and code ofethics. A definitions provision in the Rules as they stood in 2012, r 2.1(b), specifiedthat:RULE 2 INTERPRETATIONS2.1 Definitions(b) "Member" means a person who holds any current class ofmembership as defined in Rule 6, unless a contrary interpretation isspecified.It will be seen that a Member is "a person who holds" any current class of membership,"unless any contrary intention is specified". Dr Reay was a Fellow, which is one ofthe classes of membership in r 6. And there is a proviso: "Member" means a personwho holds a current class of membership unless a contrary intention is specified.[21] Some Rules and regulations contemplate that certain obligations or liabilitiesattach to former members following resignation or expulsion. Notably:20 For example, sch 1, pt 3 of the Building Act 2004 provides that signs, plinths, retaining walls, andcertain public playground equipment carried out or reviewed by a chartered professional engineerdo not require building consents (pursuant to s 42A).21 Chartered Professional Engineers of New Zealand Act 2002, s 4.22 Sections 39 and 40.(a) Rule 9.3.2 provides that a Member remains liable for subscriptionsunpaid at the time of resignation;(b) Clause 32(1) of regulations promulgated under the Rules envisages thatany fine or costs imposed as part of a disciplinary process remainpayable after the Member resigns or has been expelled;(c) Clause 34(3) of the regulations provides that following a Member'sexpulsion the Chief Executive may publish that person's name andthe action taken;(d) Rule 8.17.2 provides that IPENZ may sue a Member who has resignedfor the return of a certificate of membership.[22] Rule 11 deals with discipline. It provides:11. RULE 11 COMPLAINTS ON CONDUCT OF MEMBERSAND DISCIPLINE11.1 The Board must prescribe Regulations (the "DisciplinaryRegulations") that:a. Set out the procedures for the investigation, hearing anddetermination of complaints against Members in respect ofRule 4.b. Appoint and set out the powers of Complaints ResearchOfficers, Investigating Committees, DisciplinaryCommittees, Appeal Committees and Chairs of theseCommittees of the Institution.c. Allow that the Chair of the Disciplinary Committee may rulethat a complaint be dealt with immediately by a DisciplinaryCommittee provided that in relation to the complaint one ormore of the following grounds applies:(i) The Member concerned has been convicted bya competent Court or Tribunal of an offencepunishable by a sentence of imprisonment or a fineexceeding $2,000.(ii) The Member concerned has been disciplined underSection 21 of the Chartered Professional Engineers ofNew Zealand Act 2002 or subsequent amendmentsthereof.d. Set out the orders which may be made by any DisciplinaryCommittee or Appeal Committee.11.2 In fulfilling his or her obligation as a Member for upholdingprofessional standards of behaviour by engineers, should any Membermake a complaint alleging that another Member has acted in breachof Rule 4, the Chief Executive must initiate action to deal with suchcomplaint in accordance with the Regulations prescribed by the Boardin pursuance of Rule 11.1.11.3 Should the Chief Executive receive a complaint from any other sourcealleging that a Member has acted in breach of Rule 4, the ChiefExecutive must initiate action to deal with such complaint inaccordance with the Regulations prescribed by the Board in pursuanceof Rule 11.1.11.4 Should the Chief Executive receive information from any sourcewhich, in his or her opinion, indicates that a Member may have actedin breach of Rule 4, then the Chief Executive may deem the matter tobe a complaint and initiate action to investigate the Member'sbehaviour in accordance with the Regulations prescribed by the Boardin pursuance of Rule 11.1.11.5 If a Disciplinary Committee appointed under Rule 11.1 decides thata Member whose conduct is the subject of the investigation has actedin breach of Rule 4, the Committee may make one or more ofthe following orders:a. That such Member be expelled from Membership ofthe Institution.b. That such Member be suspended from Membership for anyperiod.c. That such Member be suspended from the Membership untilsuch time as the Member has fulfilled requirements forprofessional development as have been specified bythe Committee.d. That if by a prescribed date the Member fails to fulfilrequirements for professional development as have beenspecified by the Committee such Member be suspended fromMembership for a specified period of time.e. That a fine not exceeding an amount determined from time totime by the Board and duly published in the official journal ofthe Institution be imposed on such Member.f. That such Member be reprimanded or admonished.g. That such Member pay a sum not exceeding an amountdetermined from time to time by the Board and duly publishedin the official journal of the Institution towards such costsincurred by the institution and/or the complainant as aredirectly attributable to the investigation, hearing and/ordetermination of the complaint.h. That upon completion of consideration of the complaintaccording to the procedures under the DisciplinaryRegulations, the Member be named, the order made againstthe Member be stated, the nature of the breach described inthe official journal of the Institution, the matter publicised inany other manner as may be prescribed by the Committee, orany combination of these possibilities as the Committee mightprescribe.11.6 An Appeal Committee may affirm, vary or reverse any order ofa Disciplinary Committee, or make any order that a DisciplinaryCommittee is able to do under Rule 11.5.It will be seen that under r 11.5 a Disciplinary Committee may make orders where itdecides that "a Member whose conduct is the subject of the investigation has acted inbreach of Rule 4". Those orders are not confined to expulsion or suspension; as weexplain at [48] below, the committee may also fine the Member, order payment ofcosts, and publish its decision.[23] Rule 4, which we examine below, sets behavioural standards, providing forexample that Members must comply with a Code of Ethics reflecting fundamentalvalues that include protection of life, commitment to community well-being, andprofessionalism, integrity and competence. Fellows must conduct themselves ina competent manner commensurate with their class of membership.[24] Until 2015 Members had an unfettered right to resign under r 8.17.1, whichprovided:238.17. RESIGNATION, REMOVAL AND REINSTATEMENT8.17.1 Each Member may by notice in writing to the Chief Executive resignfrom Membership after payment of all sums due in respect ofsubscriptions or otherwise.[25] Regulations promulgated under r 11.1 provided that IPENZ "must", as soon aspracticable after receiving a complaint, refer the matter to a Disciplinary Committeeor investigate it.24 That is the process that was followed in this case.23 In 2015, IPENZ amended r 8.17.2 to confer a discretion to refuse to accept a Member'sresignation.24 Regulation 5.Did resignation bring an end to the disciplinary process?The High Court Judge's reasons[26] Collins J referred to leading authorities on contractual interpretation and foundthat as a matter of textual analysis the Rules could reasonably bear the interpretationthat the defined term "Member" includes someone who was a Member at the time ofa complaint but has since resigned.25 He based that conclusion on three points.First, some rules plainly applied to former Members although they did not specificallysay so; put another way, the Rules must be taken to include former Members wherethe context required it.26 Second, r 11.5 refers to a particular Member.27 Third, thatperson's conduct is the subject of the investigation, which introduces a temporalelement, indicating that what matters is that the person be a Member at the time ofthe complaint.28[27] The Judge then examined contextual matters, stating that professionaldisciplinary proceedings serve to maintain public trust in the profession.29 Earlier inhis judgment, he had discussed the role of professional associations and the purposeof their disciplinary powers, noting the benefits that membership of a learnedassociation brings; these include professional development, competitive advantageover non-members, collegiality, advocacy for the interests of the profession, andtrustworthy status.30 The corollary is a public expectation that an organisation such asIPENZ will tightly regulate admission and will maintain professional standardsthrough disciplinary proceedings where necessary.31 Those proceedings may maintainstandards of competence, offer rehabilitation and provide a forum for inquiring intoa tragic event.32 He cited IPENZ publications emphasising that disciplinary processesmaintain public confidence in the profession.25 Judgment on appeal, above n 6, at [100].26 At [95].27 At [96]–[97].28 At [99]–[100].29 At [102].30 At [51]–[55].31 At [56].32 At [61].[28] The Judge reasoned that the objective of maintaining public trust would befrustrated were Members able to resign before their disciplinary processes conclude,so precluding proper inquiries into alleged failures to meet professional standards.33He accordingly concluded that "Member" in r 11 does include a person who wasa Member when a complaint was made but resigns before disciplinary processes areconcluded.34 Collins J added that he found support for this conclusion in Mander J'sjudgment in Mr Harding's case.35The argument[29] Mr Gedye QC argued that the Rules are a private contract between IPENZ andits members and should be interpreted accordingly. The definition of Member inr 2.1(b) was clear and unambiguous, and nothing in r 11 specified any contraryinterpretation. It was not necessary to have recourse to extrinsic material to interpretthe Rules.[30] Counsel submitted that r 4, which as mentioned above sets behaviouralstandards, is the subject matter of r 11, which relates exclusively to complaints againstMembers "in respect of Rule 4". The terms of r 4 show that it relates only to currentMembers.[31] Mr Gedye accepted that some rules apply to former Members, but those rulesare mechanical or administrative in nature and do not address general obligations toabide the Rules and regulations. In such cases it may be said that a contrary intentionis specified because the rule itself makes clear that it applies to former Members.[32] By contrast, counsel submitted, there was no logical or textual reason to preferthe Judge's interpretation of r 11. The phrase "Member whose conduct is the subjectof the investigation" is no more than a necessary or natural reference to the relevantperson, carrying no sense that proceedings could continue if that Member resigned.He added that the Judge's interpretation is not logically limited to cases where33 At [102]–[103].34 At [104].35 At [106]; Harding v IPENZ, above n 4.a Member is current at the time of the complaint; it would equally apply to those whohad retired or died long before.[33] To the extent that context is admissible to interpret the Rules, Mr Gedyesubmitted, it is limited to the following: membership is voluntary, most engineers arenot members, other bodies exist to represent engineers, IPENZ is not a statutoryregulator, membership is contractual, and Members had at the time of the complaintan unfettered right to resign. He complained, as noted above, that the Judge referredto wider contextual material without inviting argument on it and criticisedthe conclusions that the Judge drew from extrinsic material.Reliance on extrinsic materials[34] We begin by rejecting the submission that Collins J was wrong to considermaterial not mentioned in argument without hearing from the parties about it.The purpose of disciplinary proceedings and the public interest in them were liveissues on which he did hear what the parties wanted to say and he correctly understoodtheir positions on those issues. The conclusions which he drew were, with respect,obvious and (as we explain below) could be drawn from the Rules themselves, andmost of the materials to which he referred were academic articles to which, asMs Clarke submitted for the Attorney-General, s 129 of the Evidence Act 2006 wouldapply.36 In any event, as we remarked in argument, this would not in itself justifyallowing the appeal since the hearing before us allowed Dr Reay to address the meritsand so remedy any failings of natural justice that might have occurred.Interpretation of the Rules[35] The Rules are a contract and must be interpreted accordingly.37 The principlesapplicable to contracts in general are sufficiently stated for our purposes inthe Supreme Court decisions in Vector Gas Ltd v Bay of Plenty Energy Ltd and FirmPI 1 Ltd v Zurich Australian Insurance Ltd.38 In short, a court seeks to ascertain36 Chief Executive of the Department of Corrections v McDonnell HC Auckland CRI-2005-404-239,19 May 2008.37 Hopper v North Shore Aero Club Inc [2007] NZAR 354 (CA) at [11].38 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444; and Firm PI 1Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432.the meaning that the contract would convey to a person having all backgroundknowledge that would reasonably have been available to the parties in the situationthey found themselves at the time of the contract.39 Text is centrally important butcontext is a necessary element of the interpretive process,40 and a court need not firstidentify an ambiguity in the text before having recourse to it.41[36] Incorporated societies exhibit characteristics that may affect a court's approachto the interpretation of their rules.42 The rules are not usually negotiated betweenthe society and each member. Rather, members join from time to time, adoptingthe rules as they stand at that time and agreeing to abide by them in future. The rulesso adopted usually provide that they may be amended by the members collectivelyunder a prescribed process, so a new member contemplates that the rules may bechanged from time to time with or without the member's specific consent.[37] This leads us to make several points. First, a court may not be much assistedby evidence of the context when the rules were originally adopted or even whenthe member first joined the society.43 Mr Gedye's argument notwithstanding, bothparties recognised this, focusing their argument on the rules as they stood not in 1914or 1970 but in 1986 and 2012. A court may find it more helpful to considerthe circumstances that led members to adopt or modify the rules in force at those dates.This is permissible from a contractual perspective because the rules that membersadopt when they join include processes under which they may participate in futurechanges and be bound by the results.[38] Second, an incorporated society's rules differ from other contracts in that theycustomarily incorporate an express objective, which readily permits the court to adopta purposive interpretation to give effect to the objective.4439 Firm PI 1 Ltd v Zurich Australian Insurance Ltd, above n 38, at [60]–[63], [77]–[79], and [88]–[93] per McGrath, Glazebrook, and Arnold JJ.40 At [63].41 Vector Gas Ltd v Bay of Plenty Energy Ltd, above n 38, at [22]–[23] per Tipping J.42 Law Commission A New Act for Incorporated Societies (NZLC R129, 2013) at [9.5].43 Strand v Bays Music Centre Inc [2013] NZHC 1870, [2013] NZAR 1068 at [35].44 Incorporated Societies Act 1908, s 6(1)(b). See for example Hopper v North Shore Aero Club Inc,above n 37.[39] Third, the rules may require not that members deliver to the society somethingtangible or measurable, such as goods or services, but rather that they conductthemselves in certain ways in their own professional or business activities, seeking toenhance the public stature and authority of the society and benefit its members asa class. To those ends, the society's objectives and standards may attempt to establishit as a guardian of the public interest. A public dimension to its activities may make itsusceptible to judicial review, as has happened in this case.45The relevant context in this case[40] We accept Mr Gedye's submission that the matters listed at [33] above formcontext that may be taken into account when interpreting the Rules. In particular, weaccept that IPENZ has no regulatory powers in its own right and no overallresponsibility for maintaining standards in the engineering professions. Its authorityis confined to its members.[41] However, we do not agree that those matters exhaust the relevant context.The public interest in the maintenance of professional standards, and IPENZ's interestin its standing and reputation, are relevant considerations, both textually and ascontext, when interpreting the 1986 Rules. They are textual considerations becausethe rules incorporate them. We refer here to the rules as they stood in 1986, becauseas noted above they set the behavioural standard that would govern Dr Reay's case.Rule 18.2, which we have quoted at [13] above, specifically invoked the publicinterest, and also the standing and reputation of IPENZ, and especially in matters ofhealth and safety. To that end, the rule required that Members must dischargeprofessional obligations with integrity and meet the profession's normally acceptedstandards. They are also contextual considerations relevant to the standards ofbehaviour expected of Members at the time the subject of the complaint, and whatthose standards required of them in the particular setting.45 It is not in dispute that the decision to dismiss the complaint is susceptible to judicial review.This Court most recently discussed jurisdiction in Stratford Racing Club Inc v Adlam [2008]NZCA 92, [2008] NZAR 329 at [53]–[55]. We record that the application in this case wasgoverned by the Judicature Amendment Act 1972, not the Judicial Review Procedure Act 2016.[42] Accordingly, Collins J was right to hold that the public interest is a relevantconsideration under the 1986 Rules, as is the standing and reputation of IPENZ.These matters are taken into account when determining the standards of professionalconduct that the 1986 Rules require of Members in any specific setting.Self-evidently, disciplinary processes exist to police and maintain those standards.That being so, the Judge was right to conclude that the public interest, and the standingand reputation of IPENZ, may require that those processes be seen to be effective inorder to maintain public trust.46 It is not necessary to have recourse to extrinsicmaterials to draw these conclusions.The meaning of "Member" in r 11[43] That brings us to the central question of interpretation.[44] We have quoted the definition of Member at [20] above. In our view the phrase"unless a contrary interpretation is specified" must be taken to mean "unlessthe context otherwise requires". Indeed, this was not seriously in dispute before us.As noted at [31] above, it is common ground that there are rules and regulations thataffect Members who have resigned or been expelled, yet none of these Rules expresslyspecifies that "Member" means a former Member.[45] The question accordingly may be framed as whether the context requires that"Member" in r 11 includes a former Member.[46] We begin by rejecting Mr Gedye's argument that r 11 is concerned withconduct that breaches r 4 and the latter rule is confined to current Members.Counsel noted correctly that r 4 uses the defined term "Member" throughout andspeaks in the present tense, requiring for example that Members "must comply with"the Code of Ethics. But the rule also contains what is described as the "Membershipobligation":46 Judgement on appeal, above n 6, at [110]–[116]; and R v Wilson, ex parte Robinson [1982] Qd R642 (SC) at 646–647, cited in Harding v IPENZ, above n 4, at [26].4. RULE 4 OBLIGATIONS ON MEMBERS4.1. Membership obligationEach candidate for election to any class of Membership must undertake toabide by the Rules and Regulations of the Institution and future revisionsthereof (the "Membership obligation"). This undertaking will be regardedas continuing until the person resigns or is removed from the roll of Members.[47] This rule restates an obligation that applied to Dr Reay at all material timesduring his membership. It is pursuant to that obligation that, were he still a Member,he would be susceptible under the Rules to discipline for conduct that occurred duringthe currency of the 1986 Rules and Code of Ethics. We observe that "the Membershipobligation" ceases on resignation, but only with respect to future conduct. The Rulesays nothing about post-retirement liability for conduct while membership continued.[48] We next note that the remedies available to a Disciplinary Committee are notlimited to rehabilitation, suspension and expulsion. Some naturally affect a Memberwho has been expelled or who has chosen to resign; they are payment of fines andcosts and publication of the Member's identity in connection with the complaint.47The last of these, r 11.5(h), confirms, if it were necessary, that IPENZ has an interestin being seen to maintain its standards. The existence of these provisions pointsnaturally to the rule applying to former Members. That being so, we would expectr 4.1 to specify, if Dr Reay were correct, that on resignation the Membership obligationceases with respect to past as well as future conduct.[49] We have held that a purposive interpretation is appropriate. We agree withCollins J that it points strongly toward IPENZ's powers of investigation and sanctionremaining available following the resignation of a Member who is the subject of acomplaint. Otherwise the disciplinary powers would be, and be seen to be, ineffectiveagainst Members who have reason to believe their conduct will not survive the scrutinyof their peers. (For the avoidance of doubt, we do not suggest that Dr Reay falls intothat category in fact; that question is not before us.)[50] Mr Gedye submitted that if this interpretation is correct then there is no reasonwhy a Member need hold a current membership at the time of a complaint; IPENZ47 Rule 11.5.might take proceedings against Members who resigned long before a complaint wasmade. We agree. It does not follow that a Member must be current when a complaintis determined. When a Member resigned before the complaint was made there maybe a question about what purpose disciplinary proceedings would serve. The efficacyof the disciplinary process may not be in issue, as it is in this case. However, thatquestion would fall to be answered in the circumstances of each case.[51] We conclude that "Member" in r 11 may include a former Member such asDr Reay who has resigned following a complaint but before disciplinary proceedingsare concluded.[52] We observe that Mander J reached the same conclusion for essentially the samereasons in Mr Harding's case.48Relief[53] Collins J granted the Attorney-General relief, reasoning that relief normallyfollows where an error of law has been established and emphasising thatthe declarations he made left IPENZ free to reconsider whether it wishes to proceedwith the complaint.49 He noted the passage of time and its potential impact onthe proceeding, the "practical challenges" of deciding whether to start afresh orcontinue the proceeding that was under way when Dr Reay resigned, and Dr Reay'sage (then 76), but concluded that there was an overwhelming public interest in favourof allowing IPENZ to continue if it thought fit.50[54] On appeal, Mr Gedye emphasised that relief is discretionary and the overalljustice of the case must be considered. As to that, he highlighted severalconsiderations:(a) A Royal Commission inquired into the CTV Building collapse andidentified design errors. It examined the responsibility of thoseinvolved, including Dr Reay. The Department of Building and Housing48 Harding v IPENZ, above n 4, at [36].49 Judgment on appeal, above n 6, at [118]–[119].50 At [120]–[121].(now part of MBIE) also commissioned an in-depth report. And thePolice conducted a lengthy investigation before concluding that noprosecution should be brought. That being so, any need for publicaccountability has been met.(b) The complaint is stale, since the events happened in 1986, and itsprogress has been long delayed since 2012. The Attorney-General andIPENZ are responsible for some of that delay. Dr Reay has deposed tothe loss of evidence and unavailability of witnesses.(c) On 15 April 2014 Dr Reay discontinued his judicial review applicationagainst IPENZ on implicit terms that the complaint was "permanentlyfinished"; the Attorney was a stranger to that arrangement but shouldnot be allowed to undo it.(d) The consequences for Dr Reay of the complaint being resurrected willbe severe and disproportionate to his actual involvement in the designwork.(e) The remedy of publication in r 11 was not a feature of IPENZ's 1986Rules and it would be unjust to open up a pathway that would permit itnow.[55] There is some force in these submissions, which will have to be taken intoaccount when IPENZ decides whether to continue with the proceeding commenced in2012, before the various inquiries mentioned above. The Royal Commission didattribute fault to Dr Reay, concluding that Mr Harding lacked relevant experience andhis work ought to have been supervised by Dr Reay, who failed in his responsibilitiesby taking a "hands-off" approach.51 The Commission recommended regulatoryreform and also amendments to the IPENZ Code of Ethics.52 Some of thoserecommendations were taken up by MBIE in its report and reflected in 2016amendments to the IPENZ Code of Ethics, which now provides, for example, that51 Royal Commission Final Report Vol 6, above n 2, at 2.1.6.52 Canterbury Earthquakes Royal Commission Final Report: Canterbury Television Building (RoyalCommission Report, Vol 7, 7 December 2012) at 4.5.an engineer must report to a relevant regulatory body any engineering matter thatcould cause adverse health and safety or environmental damage.53[56] However, we do not accept that the intervening inquiries preclude the reliefsought, which will merely return the issue to IPENZ for further consideration. That isappropriate because its decision to terminate the disciplinary proceedings rested onan error of law. We are not in a position to say that Dr Reay's professionalaccountability for the CTV Building collapse has been fully determined. Ultimately, itis for IPENZ to decide whether a Disciplinary Committee decision would servea useful purpose having regard to intervening events.[57] So far as other considerations are concerned, we generally acceptthe Attorney-General's submissions. Delay is not in itself a reason to deny relief andwe are not persuaded on the information before us that Dr Reay will suffer materialprejudice from it. He has been aware of the collapse since 2011 and the complaintsince 2012. We are not in a position to determine the claim, mentioned in argument,that the discontinuance of his declaratory judgment proceeding brings the disciplinaryproceeding to an end, as opposed to simply being a consideration that IPENZ maynow take into account. Nor are we in a position to determine a claim, mentioned inconnection with relief but not developed in argument, that IPENZ lacks jurisdiction todetermine complaints relating to conduct occurring before 3 December 2002. We haveapproached the appeal, as did counsel, on the basis that what is before us is a questionof interpretation of the Rules.[58] We are not persuaded that Collins J was wrong to grant the Attorney-Generalthe relief sought.Costs[59] Mr Gedye resisted costs in this Court, submitting that IPENZ had abandonedthe disciplinary proceeding on advice and Dr Reay had responded by discontinuinghis judicial review application, and the Attorney-General has intervened in the publicinterest.53 Clause 3.[60] In our view the salient point is that Dr Reay is not acting in a wider publicinterest by bringing this appeal. He is acting, quite properly, in his own interests.Costs should follow the result in the usual way. They will be payable for a standardappeal on a band A basis, with provision for one counsel, and usual disbursements.Solicitors:Buddle Findlay, Christchurch for AppellantCrown Law Office, Wellington for First RespondentKensington Swan, Wellington for Second Respondent