REAY v INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED [2023] NZHC 2750

REAY v INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED [2023]NZHC 2750 [2 October 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-199[2023] NZHC 2750UNDER the Judicial Review Procedure Act 2010 andPart 30 of the High Court RulesIN THE MATTER of an application for review of powersexercised by the Institution of ProfessionalEngineers New Zealand Incorporated underits membership contract with Alan MichaelReay dated 27 November 1970BETWEEN ALAN MICHAEL REAYApplicantAND INSTITUTION OF PROFESSIONALENGINEERS NEW ZEALANDINCORPORATEDRespondentHearing: 4 September 2023Counsel: K P McDonald KC and A-M Kraack for ApplicantL Clark and L W D Kibblewhite for RespondentJudgment: 2 October 2023JUDGMENT OF RADICH JTable of ContentsParagraphIntroduction [1]Factual background [10]The design and the collapse of the CTV Building [10]Inquiries and proceedings resulting from the CTV Building's collapse [12]The ongoing disciplinary process [13]The Institution and its rules, codes and regulations [23]The positions of the parties [40]Legal principles [43]Amenability of the Institution's decisions to judicial review [43]Grounds for review [46]The provision of particulars of the complaint [56]Discussion [63]The complaint, the ethical standards and the legal tests [64]Information that has been provided to Dr Reay [73]Information that has been provided by Dr Reay [78]Has there been undue delay in the disciplinary process? [85]Discussion [92]Result [104]_________________________Introduction[1] The Institution of Professional Engineers New Zealand Incorporated (theInstitution)1 is part way through a disciplinary process relating to Dr Reay'sinvolvement in the design of the Canterbury Television Building (the CTV Building)in Christchurch.[2] One hundred and fifteen people lost their lives when the CTV Buildingcollapsed following the devastating earthquake that struck Canterbury on 22 February2011.2[3] The CTV Building was designed by Dr Reay's firm, Alan M Reay ConsultingEngineer, in 1986. Its principal designer was an employee of Dr Reay's,David Harding. The complaint to which the disciplinary process relates is concernedwith Dr Reay's supervision of Mr Harding.1 The Institution has been operating under the trading name "Engineering New Zealand Te AoRangahau" since 2017.2 The 22 February 2011 earthquake was one of a number of significant aftershocks that followedthe magnitude 7.1 earthquake which struck Canterbury on 4 September 2010.[4] The complaint was received in 2012 but the investigation process was stoppedin 2014 with Dr Reay's resignation as a member of the Institution. In proceedingscommenced by the Attorney-General in 2015 (and in a subsequent appeal) it was foundthat the Institution did in fact have jurisdiction to investigate, hear and determine thecomplaint, despite Dr Reay's resignation. It is doing that now and its DisciplinaryCommittee is due to hold a hearing to determine the complaint in December this year.[5] In this judicial review proceeding, Dr Reay says, in broad terms for thepurposes of this introduction, that the proceeding before the Disciplinary Committeeshould be stayed or dismissed on the grounds that:(a) he has not been provided with adequate particulars of the complaint;and(b) there has been undue delay in the disciplinary process.[6] It is said that these flaws are such that there has been a breach of natural justice,a breach of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA),3 an error oflaw4 and procedural unfairness.[7] For the reasons I come on to give I have declined the application for judicialreview because, in essence:(a) Dr Reay has sufficient information about the complaint to enable himto respond fairly and meaningfully. The details that have been providedof the complaint enable a process before the Disciplinary Committeethat is fair, not in breach of the principles of natural justice, theNZBORA or the Institution's disciplinary regulations.(b) The passage of time since the complaint was first made is not such asto mean that the proceeding cannot continue fairly. Dr Reay is not3 Which, amongst other things, relates to a person's right to the observance of the principles ofnatural justice by a tribunal or public authority.4 By reference to the provisions in the relevant disciplinary regulations that provide for particularsof a claim, for natural justice and for steps in the disciplinary process to be taken "as soon aspracticable".prejudiced in his ability to respond to such an extent as to make it unfairfor the process to continue. The effect of the passage of time on theassessment the Disciplinary Committee must make of Dr Reay'sconduct – measured against professional standards as they were in 1986– is a matter for the Committee. It is not such as to warrant interventionby the Court under the principles of natural justice, the NZBORA orunder the Institution's disciplinary regulations.[8] Dr Reay holds the view that, in circumstances in which the Royal Commissionof Inquiry has examined the responsibility of those involved, in which Mr Hardingwas found guilty of breaching professional standards some years ago, in which37 years have elapsed since the building was designed and in which 11 years haveelapsed since the complaint against him was made, there could be no ongoing need forpublic accountability. It is said that the disciplinary proceeding is stale, that it is futile,that it is no longer relevant and, moreover, that it is simply punitive.[9] In my view – as with those of the High Court and the Court of Appeal whenthe continuation of the proceeding was raised before them in 2018 and 2019 – there isa genuine public interest element in having the Disciplinary Committee determine theunderlying issues. The disciplinary process is able to proceed fairly.Factual backgroundThe design and the collapse of the CTV Building[10] The CTV Building was designed by Dr Reay's firm in 1986. Dr Reay was thefirm's sole principal. He is a particularly experienced engineer. He began practice asa structural engineer in 1970, establishing his own firm in the early 1970s. He was amember of the Institution from 1970 until the time of his resignation in 2014. He wasappointed as a fellow of the Institution, recognising his considerable contribution tothe engineering profession. His firm employed Mr Harding in 1985.[11] Most of the structural design work for the CTV Building was done byMr Harding. Dr Reay did not himself undertake any significant work in the building'sdesign. The essential question for the Disciplinary Committee relates to whether ornot there was a failure on Dr Reay's part in adequately supervising Mr Harding, havingregard to Mr Harding's experience, that would warrant a disciplinary response.Inquiries and proceedings resulting from the CTV Building's collapse[12] A number of inquiries have taken place since the collapse of the CTV Building.They have included consideration of the design of the CTV Building and Dr Reay'sinvolvement in the process. They have included:(a) A Department of Building and Housing investigation.5(b) The Canterbury Earthquakes Royal Commission of Inquiry.6(c) A police investigation.7 and(d) Two investigations and/or disciplinary proceedings by the Institution(excluding this one) since 2012.The ongoing disciplinary process[13] The Institution's disciplinary process began on 10 December 2012 whenMr Mike Stannard, who was then Chief Engineer with the Ministry of Business,Innovation and Employment (MBIE),8 made two complaints about Dr Reay. Thecomplaint that remains active is in the following terms:Dr Alan Reay's company provided the structural design for the CTV Building,which collapsed in the February 2011 Canterbury earthquake, killing 115people. The Canterbury Earthquakes Royal Commission found that thestructural design of the building was seriously deficient in multiple ways. Theemployee engaged by Dr Reay to perform the design work (Mr DavidHarding) lacked the necessary experience to design buildings of this type.Dr Reay knew this, but failed to adequately supervise Mr Harding.5 From April 2011 to February 2012.6 From April 2011 to November 2012.7 From February 2012 to November 2017.8 Then called the Department of Building and Housing.[14] Mr Stannard's second complaint – that Dr Reay placed inappropriate pressureon the Christchurch City Council to approve the CTV Building – has since beendismissed by the Institution.[15] From April 2013 to April 2014, the Institution investigated the complaintthrough an Investigating Committee under its rules. The investigation came to an endin April 2014 after the Investigating Committee and the Institution decided that theyno longer had jurisdiction to investigate, hear or determine the complaint after Dr Reayhad resigned as a member of the Institution in February 2014.[16] In March 2015, the Attorney-General began a judicial review proceeding inrelation to the Institution's decision that it did not have jurisdiction to proceed.Collins J, in a judgment of 7 December 2018, decided that the Institution hadjurisdiction over a person who was a member at the time the disciplinary proceedingswere instituted and that the considerable public interest in the proceeding was such asto warrant the Attorney-General bringing the proceeding (the High Court decision).9The Institution's decision – that it lacked jurisdiction to continue – was set aside.[17] In January 2019, Dr Reay brought an appeal from the High Court decision. Ina decision of 2 October 2019, the Court of Appeal dismissed the appeal, agreeing thatCollins J was right to hold that public interest in the maintenance of professionalstandards was a relevant consideration in interpreting whether or not the Institution'srules should extend to former members, that it was right to find that the Institution hadjurisdiction to continue to consider the complaint and that delay was not in itself areason to deny relief. It was found that Dr Reay would not suffer material prejudicefrom the delay (the Court of Appeal decision).10[18] In October 2019, the Institution appointed a new Investigating Committee (theInvestigating Committee). The investigation was delayed for a short time followingexchanges which saw a member step down from the committee. The Investigating9 Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 3211,[2019] 2 NZLR 731.10 Reay v Attorney-General [2019] NZCA 475.Committee conducted its investigation from April 2020 until December 2021 when itreleased a preliminary decision to the parties and sought submissions.[19] On 9 May 2022, having considered submissions from Dr Reay and theInstitution, the Investigating Committee released a final decision in which itdetermined that the complaint should be referred to a Disciplinary Committee underthe relevant regulations (the Disciplinary Committee).[20] The Institution appointed the Disciplinary Committee in June 2022.Correspondence between Dr Reay's solicitors, the Institution and the DisciplinaryCommittee chair over procedural matters were exchanged between August 2022 andFebruary 2023.[21] On 7 March 2023, the Disciplinary Committee provided the parties with adocument entitled "Disciplinary Hearing Procedure" which identified the complaint,dealt with procedural matters and referred to documents the Disciplinary Committeeconsidered to be relevant.[22] It set a hearing date for August 2023 which has since been adjourned to a datein December 2023 in order to accommodate this proceeding.The Institution and its rules, codes and regulations[23] The Institution was founded in 1912 to, amongst other objectives, promote anduphold the professional standards of its members. It is registered under theIncorporated Societies Act 1908. Membership is voluntary. It is not necessary for apractising engineer to join a professional organisation such as the Institution. Equally,it has never been necessary for a practising engineer to register as an engineer,although an engineer may do so under the Chartered Professional Engineers of NewZealand Act 2002 (the Act). Engineers registered under the Act are known as charteredengineers. There are restrictions in the Building Act 2004 that require certainprofessional functions in relation to the construction of buildings to be completed bya chartered engineer.[24] The Act sets out a process for receiving and considering complaints against,and disciplining, chartered engineers. Therefore, there are two disciplinary processesthat could apply to an engineer who is both a member of the Institution and registeredunder the Act. However, because Dr Reay did not register as a chartered engineerunder the Act until 2011, the disciplinary proceeding against him, relating to events in1986, can be brought under the Institution's Rules alone.[25] Members of the Institution are bound by its rules, regulations and codes.[26] It is against the versions of the Code of Ethics and Rules of the Institution thatwere in force in 1986 (when the CTV Building was designed) that Dr Reay's conductis to be measured.[27] The Institution's 1986 Rules make provision, in r 18, for professional conductand discipline.[28] Rule 18.2 provided:Each member shall so conduct [themselves] as to uphold the dignity, standingand reputation of the Institution and of the profession and with due regard tothe public interest, especially in matters of health and safety. Each member,at [their] level of engineering activity, shall exercise [their] professional ortechnical skill and judgment at least according to the normally acceptedstandards of the profession and to the best of [their] ability, and shall discharge[their] professional and technical responsibilities with integrity.[29] Rule 18.3 required the Institution's Council to prescribe a Code of Ethics forthe observance of the professional standards described in r 18.2.[30] The Institution's 1986 Code of Ethics prescribed a set of provisions "infurtherance" of the terms of r 18.2. Two of its provisions are relevant here:1. Each member shall exercise [their] professional and technical skilland judgement to the best of [their] ability and shall discharge [their]professional and technical responsibilities with integrity.8. However engaged, [they] shall at all times recognise [their]responsibilities to [their] employer or client, others associated with[their] work, the public interest and [their] profession.[31] The parties have referred also to the Institution's 1996 and 2016 Code ofEthics. They do so against the backdrop of a submission for the plaintiff that the termsof cls 1 and 8 of the 1986 Code do not refer to supervision standards. By contrast, the1996 Code includes a provision in which a member is required to: accept personal responsibility for work done by you or under yoursupervision or direction and take reasonable steps to ensure that anyoneworking under your authority is both competent to carry out the assigned tasksand accepts a like personal responsibility.[32] The relevant provision in the 2016 Code is expressed differently again,requiring that a member must not:knowingly permit other engineers for whose engineering activities you areresponsible to: undertake engineering activities that are outside theircompetence; undertake engineering activities in a manner that is not carefuland competent; misrepresent, or permit others to misrepresent, theircompetence.[33] The applicant says that, because specific supervision standards such as thosecontained in the 1996 and 2016 Code are not present in the 1986 Code, it is not possiblefor Dr Reay, in the absence of further information, to know what the particularstandards against which he is to be assessed are.[34] It is the Institution's current rules and regulations that govern the way in whichthe disciplinary process to determine the complaint that has been made againstDr Reay will proceed.[35] Rule 3 of the Institution's 2010 Rules (the Rules) provides that the object ofthe Institution is "the advancement of the professions of engineering" by means thatinclude representing the engineering professions, contributing to the development andrecognition of good engineering practice, and contributing to meeting the needs of thecommunity.11[36] The Rules require the Institution's board to prescribe Disciplinary Regulationsand they set out the orders the Disciplinary Committee may make if it finds a member11 Institution Rules March 2010, r 3.to have acted in breach of r 4.12 Rule 4 identifies members' ethical, competence andgood character obligations.[37] Relevant provisions in the Institution's 2012 Disciplinary Regulations (theDisciplinary Regulations) include those that are set out below. In relation to the firstfour of them, the relevant regulation requires the Institution, the InvestigatingCommittee or the Disciplinary Committee, as the case may be, to undertake theprescribed step "as soon as practicable".(a) Under cl 5, the Institution is to either refer a complaint of a certain type(which is not relevant here) directly to a Disciplinary Committee orinvestigate the complaint.(b) Under cl 7, following an initial investigation, the Institution is to eitherdismiss the complaint or refer it to an Investigating Committee. Acomplaint may be dismissed under cl 8 at this stage in the process for anumber of reasons. One of them, in cl 8(g), is that:An investigation of the complaint is no longer practicable or desirablegiven the time elapsed since the matter giving rise to the complaint.(c) Under cl 11, an Investigating Committee to which a complaint has beenreferred must determine whether or not to refer the complaint to aDisciplinary Committee or whether to dismiss it. If the complaint is tobe dismissed, then the grounds set out in cl 8 are, again, to be used –which include cl 8(g) as mentioned above.(d) Under cl 17, if a matter is referred to a Disciplinary Committee, theDisciplinary Committee is to "hear the matter and decide whether ornot there are grounds for disciplining the Member complained aboutunder Rule 11 of the Institution". If the Disciplinary Committeedecides that there are no grounds for disciplining the member, then theInstitution is to dismiss the complaint.12 Rule 11. Orders that a Disciplinary Committee may make include expelling or suspending amember from membership, issuing a fine, reprimanding or admonishing the member, requiringthe member to pay an amount towards costs and publication.(e) Under cl 18, a Disciplinary Committee may receive any evidence itthinks fit.(f) Under cl 19, before making a decision under cl 17, the DisciplinaryCommittee must "send details of the complaint" to the member, invitehim or her to respond in writing, give the complainant and the member(and any other person alleged to be aggrieved) at least 28 days' noticeof the time and place for hearing and of the right for those persons tobe heard, represented and present evidence.[38] Clause 20 describes the way in which the Disciplinary Committee's decisionis to be made. It is central both to the Committee's task itself and to aid anunderstanding on the part of members of what the Disciplinary Committee will belooking at. Two of the relevant provisions within the clause are these:(c) As appropriate in considering a complaint in regard to an allegedbreach of the ethical obligation, the Disciplinary Committee mayevaluate the diligence in applying the Code of Ethics by the Member;the degree to which account was taken of each clause of the Code andthe extent of explicit disregard of the Code;(d) As appropriate in considering a complaint in regard to an allegedbreach of the competence obligation the Disciplinary Committee mayevaluate the actions of the Member having regard to the competenceexpected of Members holding the same membership class of theInstitution as the Member complained of;[39] Under cl 38 of the Disciplinary Regulations, everybody or person appointedunder them is to observe the rules of natural justice.The positions of the parties[40] Dr Reay alleges that:(a) The Disciplinary Committee has not provided him with adequateparticulars of the complaint that is to be heard and, as a result, he isprejudiced unfairly in his ability to prepare for, and to respond to, thecomplaint at the hearing.(b) There has been undue delay in the time that has been taken through theinvestigation process such that there can no longer be a fair hearing. Itis said that it is no longer tenable for the Disciplinary Committee tohear the complaint.[41] As mentioned earlier, judicial review is sought on the basis that these flaws aresuch as to amount to a breach of natural justice and a breach of s 27 of the NZBORA,to be procedurally unfair and to be an error of law under the Disciplinary Regulationswhich require the Disciplinary Committee to observe the rules of natural justice,13 toprovide "details" of the complaint to Dr Reay14 and to take relevant steps "as soon aspracticable".15[42] The position of the Institution is that it has provided Dr Reay with adequate"details" of the complaint, that Dr Reay is able to respond to the complaint and toparticipate in the hearing in a manner that is fair and satisfactory. It says that delaysto this point have been unavoidable and have not in any event prejudiced Dr Reay.Legal principlesAmenability of the Institution's decisions to judicial review[43] The relationship between an incorporated society and its members is foundedlargely in contract.16 However, a public dimension to the activities of manyincorporated societies, such as the Institution here, may make them susceptible tojudicial review.17 And, because an incorporated society's rules will customarilyincorporate express objectives and standards, the Court is able to adopt a purposiveapproach in giving effect to those objectives and standards.18[44] While there is no doubt about the Court's ability to entertain this proceeding, anote of caution is needed. The Court will not normally permit judicial reviewproceedings to be heard before a complaint process is complete, other than in13 Clause 38(1)(b).14 Clause 19(1)(a).15 Clauses 5, 7, 11 and 17.16 Hopper v North Shore Aero Club Inc [2007] NZAR 354 (CA) at [11].17 Stratford Racing Club Inc v Adlam [2008] NZCA 92, [2008] NZAR 329 at [53]–[55].18 Reay v Attorney-General, n 10, at [38] and Hopper v North Shore Aero Club Inc, above, n 16.exceptional cases.19 It is generally in the public interest that disciplinary proceedingsare dealt with promptly.20[45] Exceptional cases in which judicial review may be appropriate before adisciplinary proceeding is complete may include cases in which there is a serious issueas to whether a charge is in order, where there has been non-compliance with statutoryprerequisites (such as failing to conduct a hearing) or where there has been bad faith.21Ms McDonald KC submits that this is one of those cases – that the lack of particularsand the delay are such that the case has miscarried in significant ways and can nolonger properly be heard.Grounds for review[46] The heads of review pleaded by the plaintiff overlap. Essentially, they eachprovide a jurisdictional basis for the Court to intervene in a decision-making processif there has been a breach of the principles of natural justice. The principles require adecision-maker to inform a person sufficiently to allow his or her case to be made outand to entertain their case with an open mind. It is an opportunity to be heard fairly;to be able to make an appropriate presentation of one's case.[47] As relevant here, it will involve a decision-maker providing details of theallegations that are made against a person and the evidence in support.22 It will involveenabling a reasonable opportunity for those involved to express their views or makesubmissions23 and enabling a fair and appropriate hearing.24[48] In discussing the level of detail that is to be provided of allegations, Elias Jsaid, in Ali v Deportation Review Tribunal, that details of an allegation should be such19 Orlov v New Zealand Law Society [2013] NZSC 94 at [6], citing Tannadyce Investments vCommissioner of Inland Revenue [2011] NZSC 158; [2012] 2 NZLR 153 at [5]–[6].20 Deliu v National Standards Committee (No. 1) [2013] NZCA 76 at [14].21 Deliu v The New Zealand Law Society [2015] NZCA 12 at [24]–[25] citing Duncan v MedicalPractitioners Disciplinary Committee [1986] 1 NZLR 513 at 539.22 R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 (CA) at 108 andAkaroa Marine Protection Society Inc v Minister of Conservation [2012] NZHC 933 at [65].23 Diagnostic Medlab Ltd v Auckland District Health Board [2007] 2 NZLR 832 (HC) at [290].24 R v Taito [2003] 3 NZLR 577.that the substance of the allegation is known so that there are no surprises.25 She putit this way:If, therefore, there is no surprise in an allegation or if, even if there is surprise,there could be no prejudice because further notice would not have assisted theperson affected to meet the allegation, then there is no unfairness in process.[49] In a disciplinary setting, Randerson J held that disclosure was required of the"basic particulars" of the charges such that the plaintiff was "properly informed of thecase he is to answer and so he may take appropriate steps to prepare any opposition"because "without them" the allegations are too general in nature and are likely to leadan unfocused and unfair hearing".26[50] "Fairness" is the outcome achieved through the application of the principles ofnatural justice to the extent necessary on any given set of facts. As was said in an earlyfairness case, fairness and natural justice are not different concepts. Rather, fairnessterminology was adopted to prevent lawyers trying to "put those who hold inquiriesinto legal strait jackets".27 As Graham Taylor has put it:28The resulting pattern that emerges is that where the Court is concerned withprocedural requirements, judges have not distinguished fairness from naturaljustice but have used "fairness" as a shorthand for the legally required level ofprocess, or have simply used "fairness" as a substitute for "natural justice" todescribe what process is required, or both together.[51] Equally, the NZBORA enshrines the right to the observance of the principlesof natural justice.29[52] These principles are expressed in the Disciplinary Regulations through therequirement in cl 19 to "send details of the complaint" to the member.25 Ali v Deportation Review Tribunal [1997] NZAR 208 at 220.26 A v Council of the Auckland District Law Society [2005] 3 NZLR 552 (HC), at [95].27 Maxwell v Department of Trade and Industry [1974] QB 523 (CA) at 539.28 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at 13.12, citing, amongst other authorities, Isak v Refugee Status Appeals Authority [2010]NZAR 535.29 New Zealand Bill of Rights Act 1990, s 27(a).[53] In natural justice terms, delay in and of itself does not constitute a breach ofnatural justice. To be actionable, it must cause prejudice to the applicant.30 Moreover,a Court will consider the extent to which any such prejudice was self-created.31[54] Timeliness is a feature of the regulations. As mentioned in [37], key steps inthe disciplinary process are to be undertaken "as soon as practicable".[55] It is with these principles in mind that the Court proceeds to consider theallegations in this case.The provision of particulars of the complaint[56] In the Disciplinary Committee's "Disciplinary Hearing Procedure" documentof 17 March 2023, under the heading "Complaint", the chair of the DisciplinaryCommittee identified to the complaint made in December 2012 which was referred toan Investigating Committee in 2019 and then, by the Investigating Committee, to theDisciplinary Committee on 9 May 2022. The full complaint, which is reproduced at[13] above, was then set out in full.[57] That was the full extent of the complaint documentation. There was nothingmore. In many respects it could be said, therefore, that the requirement, in cl 19(a) ofthe Disciplinary Regulations, that the Disciplinary Committee is to "send details ofthe complaint to the member" has been met. However, the submission for Dr Reayis that the Disciplinary Committee needed to provide further detail in order to complywith its natural justice obligations.32[58] For Dr Reay it is said that the complaint does not specify how it is alleged thatDr Reay failed to meet his professional obligations, only that he failed to "adequatelysupervise Mr Harding". It is said that the complaint simply cross-references the RoyalCommission of Inquiry's report which is seven volumes in length. It is said that moreis needed:30 Huia Resorts Ltd v Ashburton District Council [2005] NZRMA 449 (HC) at [18].31 Puloutele v Minister of Immigration HC Wellington, CIV-2005-485-11, 21 September 2006 at 43;see also Butler v Removal Review Authority [1998] NZAR 409 (HC) at 430–431.32 Used as a shorthand term here for the allegations under the natural justice, NZBORA, fairness andDisciplinary Regulations grounds.(a) It is said, with reference to the Code of Ethics and Rules in force in1986, that Dr Reay "remains in the dark as to what professionalobligations it is alleged these rules imposed on him in terms of hisoversight of Mr Harding" – given that the 1986 documents do notinclude an express supervision requirement.(b) It is said that Dr Reay has repeatedly asked for particulars from theInstitution and clarification from the Disciplinary Committee on theallegations that he is facing but that he still does not have them.[59] Multiple items of correspondence on this point have been exchanged betweenDr Reay's solicitors, the Institution and the chair of the Disciplinary Committee. Totake but one example, on 22 August 2022, Dr Reay's solicitors wrote to the chair ofthe Disciplinary Committee saying, as had been expressed in earlier exchanges, that"Dr Reay is entitled to be provided with particulars of the ways in which it is allegedhe has failed to adequately supervise Mr Harding". It was said that details in thecomplaint itself were inadequate and that it is not possible for Dr Reay to briefwitnesses, including experts, without having clear particulars of the supervision it isalleged he was required to provide in the circumstances.[60] In a letter in response of 1 September 2022, the Disciplinary Committee chairreferred to the fact that the Institution's disciplinary process "is inquisitorial in nature,and so there are no formal charges to particularise". The chair said that, in making itsdecision as to what constituted adequate supervision, the Disciplinary Committee willbe informed by evidence of the supervision that was undertaken by Dr Reay and byevidence of the professional standards that applied at the time. It was said that theevidence may include material in the bundle of documents to be used for the hearingand any additional evidence presented to the Committee at the hearing. The chair saidthat the Committee considered it unnecessary to further particularise what may or maynot constitute adequate supervision in advance of considering the evidence. The chairsaid that Dr Reay is able to provide evidence and make submissions on whatsupervision he did provide, why he considered it to be adequate and why he did notagree with the evidence provided in the bundle.[61] Ongoing exchanges between the parties have not altered their respectivepositions.[62] Dr Reay maintains the position that a lack of particulars has prejudiced unfairlyhis ability to respond to the complaint on the basis that:(a) He is not able to properly assess which documents are relevant to thesupervision complaint;(b) He is not able to assess properly the issues arising for determination onthe complaints; and(c) He is not able to assess properly the evidence he might brief to presentto the Disciplinary Committee.Discussion[63] I consider this head of claim from three perspectives. First, I look at the waysin which the issues for consideration by the Disciplinary Committee are framed by theterms of the complaint and by the Code of Ethics alongside the relevant legal tests. Iconsider whether or not that framework provides a fair basis for Dr Reay to preparefor and present his case at the Disciplinary Committee hearing. Secondly, I considerthe information provided to Dr Reay throughout the disciplinary process and, mostrecently, by the Disciplinary Committee. And, thirdly, I consider submissions thatDr Reay has been able to make already to the Institution and to the InvestigatingCommittee to get a sense of the level of his present understanding of the complaint theDisciplinary Committee is to consider.The complaint, the ethical standards and the legal tests[64] The complaint is set out in full in [13] above. It alleges:• Dr Reay's company provided the structural design for the CTV Building.• The Royal Commission of Inquiry found the structural design of thebuilding to be seriously deficient in multiple ways.• Mr Harding, Dr Reay's employee, performed the design work.• Mr Harding lacked the necessary experience to design buildings of thistype.• Dr Reay knew this but failed to adequately supervise Mr Harding.[65] Clauses 1 and 8 of the 1986 Code of Ethics – reproduced at [30] above –required, in 1986, members to exercise their professional and technical skills andjudgment to the best of their ability and to discharge their professional and technicalresponsibilities with integrity. They required engineers to recognise responsibilitiesto those associated with their work and in the public interest.[66] While it is correct that the 1986 Code did not refer directly to supervision asthe 1996 Code did, it is in my view implicit in the words of the provisions. A memberoperating a business that employs other engineers will, if they are to act professionallyand with integrity, and if they are to recognise their responsibilities in the publicinterest and to their profession, supervise those employees.[67] The 2016 Code does not refer expressly to supervision in a broad sense eitherbut, again, it is implicit in the provision that I mention in [32] above.[68] Alongside cls 1 and 8 of the Code of Ethics, r 18.2 of the 1986 Rules describesthe standard against which the Disciplinary Committee will measure Dr Reay'sconduct. Under that rule, members are to conduct themselves as to uphold the dignity,standing and reputation of the Institution and the profession with due regard to thepublic interest, especially in matters of health and safety. Equally importantly underthat rule, each member is to exercise professional or technical skill and judgment "atleast according to the normally accepted standards of the profession and to the best ofhis ability".[69] Describing professional standards at a high level of generality is orthodox.What is acceptable professional practice, in disciplinary proceedings, is typically to bedetermined by considering the judgment of the practitioner's peers. As Elias J said inB v Medical Council:33The structure of the disciplinary processes set up by the Act, which rely inlarge part upon judgment by a practitioner's peers, emphasises that the bestguide to what is acceptable professional conduct is the standards applied bycompetent, ethical and responsible practitioners.[70] In a similar sense, in Williams v Professional Conduct Committee of theMedical Council, it was said that "whether or not there has been a breach of theappropriate [professional] standards is measured against the standards of a reasonablebody of the practitioner's peers".34[71] Accordingly, it is for the Disciplinary Committee to determine, based uponevidence of the nature of Dr Reay's practice in 1986, whether his peers would regardthat conduct as being in line with generally accepted standards of the profession at thetime in accordance with r 18.2 and the relevant provisions in the Code of Ethics. I donot see there to be any procedural flaw in that approach.[72] Moreover, the Disciplinary Committee's process is, as it has said incorrespondence with Dr Reay, investigative. Unlike the position with many otherprofessional disciplinary tribunals, a case is not prosecuted as such by the equivalentof the Investigating Committee. Rather, as is set out in the disciplinary hearingprocedure document, evidence will be filed, first, by the Disciplinary Committee itself,then by the complainant, then by witnesses for the CTV families group and then bythe respondent. In this way, information is received by the Committee on an iterativebasis. It is apparent that considerable further detail is yet to come.33 B v Medical Council of New Zealand [2005] 3 NZLR 810 at 810–811 — where the standard beingconsidered was "conduct unbecoming".34 Williams v Professional Conduct Committee of the Medical Council [2018] NZHC 2472 – andcited in XY v Professional Conduct Committee of the Medical Council of New Zealand [2022]NZHC 1498 at [29].Information that has been provided to Dr Reay[73] Secondly, I turn to consider the information that has been provided to Dr Reayduring the disciplinary process. The report of the Institution's Complaints ResearchOfficer of 3 April 2013 identified 36 listed documents that were taken into account,drew conclusions and made recommendations. The report includes a bundle ofdocuments considered by the Investigating Committee. Documents in the bundleinclude material relating to the standard of supervision in practice at the time. One ofthem is a report from Beca Ltd.35 The Beca report included interviews with engineerswho provided their expert view on accepted practice for supervision in 1986.36[74] Dr Reay received the Investigating Committee's report of 9 May 2022 which,amongst other things, described Dr Reay and Mr Harding's relative experience in1986, the relevant factual background, the reports received since the building'scollapse (including on factors that contributed to it), the report of the CanterburyEarthquake's Royal Commission of Inquiry and Dr Reay's evidence to the inquiry. Itdiscussed what, in the view of its authors, a reasonable member of the Institutionwould have been expected to do, in terms of supervision, in 1986 and determined thatthe matter should be reviewed by the Disciplinary Committee.[75] The Disciplinary Committee, through its chair, has engaged in a number ofexchanges with Dr Reay's solicitors. In particular, on 7 March 2023, the chairprovided a document outlining its disciplinary hearing procedure, mentioned in [21]above. After dealing with procedural and timetabling matters, it referred to the hearingprocess, which is to include a presentation of the Investigating Committee's report.The hearing procedure document was followed, on 28 March 2023, withcorrespondence to Dr Reay that provided a bundle of key documents, as presented tothe Investigating Committee and to be considered by the Disciplinary Committee.While the bundle itself was relatively extensive, certain key documents were identifiedas the documents that the Investigating Committee had been provided with in the firstinstance, indicating their particular relevance.35 The Beca Ltd report was prepared for the Police investigation.36 It is understood that Dr Reay received a version of the Beca report with the names of five of thoseengineers unredacted.[76] In May 2023, Dr Reay was provided with an affidavit from a consultantengineer which gives evidence on standards of practice that applied in 1986.[77] The information that has been provided to Dr Reay is extensive and in my viewis such as to satisfy the Disciplinary Committee's natural justice obligation to providedetails of all of the relevant matters it is likely to take into account in considering thedecision it is required to make.Information that has been provided by Dr Reay[78] Thirdly, it seems sufficiently clear to me that Dr Reay has felt able to providesubstantive responses to the supervision complaint on previous occasions. On8 March 2013, in a letter from his solicitors to the Institution, Dr Reay referred to thespecific elements of the complaint, made arguments to the effect that the provisions ofthe 1986 Code of Ethics were too broad to give rise to supervisory requirements, madearguments as to why the design of the CTV Building was not flawed, made argumentsabout Mr Harding having the necessary experience to design the building and madearguments as to why in his view he did not fail to supervise Mr Harding adequately,all things considered.[79] Dr Reay provided two affidavits in August 2013. The first was fromMr Ramsay, a practising engineer in 1986. In his affidavit, Mr Ramsay said that therewas no standard practice for supervision at that time, that engineers registered with theInstitution, like Mr Harding, were at a standard at which they could be expected towork independently and that they were expected to self-regulate and ask for guidanceif they needed it or if they lacked the necessary knowledge or skill.[80] The second affidavit was from Mr Coates, a fellow of the Institution in 1986and who later became its president. Mr Coates gave evidence of his involvement inthe mid-1990s in updating the Institution's ethical framework. He gave evidence thatthe Code of Ethics, as it applied in 1986, had "serious deficiencies" and that it did nothave an explicit supervision requirement which was why, Mr Coates explained, anexplicit supervision guideline was added in 1996.[81] On 14 August 2023, Dr Reay's counsel, Mr Palmer, appeared on his behalfbefore the first Investigating Committee and made detailed submissions with referenceto a bundle of documents which included the affidavits from Mr Ramsay and MrCoates.[82] In Dr Reay's submissions to the Investigating Committee of 31 August 2020,he identified each aspect of the complaint (while expressing concerns about theirimprecision), expressed his concerns again about the scope of the 1986 Code of Ethics,submitted how standard practice at the time was not to directly supervise an engineerof Mr Harding's seniority unless the engineer asked for help, and referred toMr Ramsay's affidavit. He argued that, other than evidence from Mr Ramsay, therewas no direct evidence of supervision standards. He argued that Mr Harding wassufficiently senior so as not to need supervision and that he was adequately supervisedgiven the circumstances existing at the time. He argued that Mr Harding wouldreasonably have been expected to identify any shortcomings in his capability toDr Reay. He referred to and repeated the submissions made in August 2023 to the firstInvestigating Committee and to the bundle of documents used for that hearing.[83] For these reasons, I find that the terms of the complaint and the content of thesupporting information provided to Dr Reay to be sufficient such as to comply withthe Institution's obligations of natural justice (viewed through the NZBORA orotherwise) and procedural fairness.[84] The same conclusion can be drawn when considering the issues in terms of theRules and the Disciplinary Regulations. It has been argued for Dr Reay that moreinformation is required at the Disciplinary Committee stage because the DisciplinaryRegulations require the "general nature" of a complaint to be provided at theInvestigating Committee stage,37 while they require "details" to be provided at thedisciplinary stage.38 However, the complaint concerns a single issue that has beenparticularised adequately at both the Investigating Committee and DisciplinaryCommittee stages, regardless of whether the information provided is described as the"general nature", or as "details" of the complaint. Accordingly, I do not see there to37 Disciplinary Regulations, cl 5(2).38 Clause 19.be an error of law through a breach of the Rules and the Disciplinary Regulations orthat the way in which they have been applied would otherwise amount to a breach ofnatural justice or to a procedural flaw.Has there been undue delay in the disciplinary process?[85] It is said for Dr Reay that the delay in this case has been extraordinary, both interms of MBIE's decision to lay the complaint and the Institution's consideration of it.It is said that the delay has caused unfair prejudice to Dr Reay such that he is not ableto adequately respond to and contradict the allegations that are made against him. Itis said, given that Dr Reay has long since retired as a structural engineer and is nolonger a member of the Institution, no practical purpose will be served by nowpursuing the disciplinary proceedings.[86] Ms McDonald refers to the Disciplinary Regulations which, as observed in[37], require relevant steps in the disciplinary process to be taken "as soon aspracticable". A number of periods of alleged delay are referred to. Salient amongthem are these:(a) The Investigating Committee's decision was not made until over twoand a half years after the Institution recommenced the investigation(following the High Court and Court of Appeal decisions).(b) The Investigating Committee's report came nine and a half years afterthe complaint was made.(c) Nearly 40 years have passed since the alleged conduct giving rise to thecomplaint that is said to have occurred.(d) The Disciplinary Committee did not issue the hearing proceduredocument until eight months after the complaint was referred to it.[87] It is said that the delays have caused particular prejudice to Dr Reay in thefollowing ways:(a) He has not been able to find a contemporaneous document (aside fromthe Code of Ethics) that sets out what the supervision standards were in1986.(b) Potential witnesses who might have given helpful information aboutthe issues raised in the complaint died before the complaint was laidand others have died since – including witnesses who had beencontacted by Dr Reay previously and had been prepared to giveevidence.(c) Other witnesses who were once able to give evidence are no longer ableto do so due to health or other reasons.[88] It is said that there is no public interest now in determining the complaint.Reference is made to the underlying principle that disciplinary proceedings are notpunitive in nature but are, essentially, protective of societal interests such that publicinterest considerations are important.39 It is said that the process is futile and that thereis now nothing to be gained. The point is made that the complainant is not the CTVfamilies, but MBIE which did not, itself, suffer any harm from Dr Reay's allegedconduct. Any public good that could arise through the disciplinary proceeding has, itis said, already been addressed now through changes to engineering standards whichinclude express obligations about supervision of employees.[89] Ms McDonald observes that Dr Reay has had to deal with the complaintsprocess for nearly 11 years now which has taken considerable time and causedconsiderable expense. Dr Reay is now an elderly man with failing health. In evidenceprovided in the case, Dr Reay's general practitioner has expressed concerns aboutDr Reay's ability to deal with the complaints process, both physically and mentally.[90] The Institution says the passage of time does not in itself create a presumptionof an unfair process. Prejudice needs to be considered as does, it is said, the extent towhich Dr Reay may have contributed to the delay.39 Chow v Canterbury Law Society [2006] NZAR 160 (CA) at [35].[91] Delay, it is said, is a factor that has been raised by Dr Reay in the InvestigatingCommittee and was taken into account by the Committee in making its decision. TheInstitution says that the impact if any of delay and prejudice are now properly mattersfor the Disciplinary Committee. It is said that delays in the disciplinary process todate have been the result, at least in part, of Dr Reay's own actions and that any delaysin the current disciplinary proceedings have been limited and explained incorrespondence.Discussion[92] Dr Reay's concern about delays was a factor that was stressed in submissionsmade for him in the High Court proceeding to which the High Court decision related.As in this case, factors that were emphasised included the delay that had occurred tothat point in time, the impact of the delay on the evidence that Dr Reay would be ableto bring and Dr Reay's age. In response, Collins J said:40In my judgement, the factor that is overwhelmingly in favour of granting therelief sought by the Attorney-General is the public interest in allowing theInstitution to determine whether or not it wishes to proceed with Mr Stannard'scomplaint against Dr Reay. Whilst it would not be possible to expel orsuspend Dr Reay from the Institution, that is not determinative. There may bevaluable lessons to be learnt from an assessment of Dr Reay's professionalresponsibilities in relation to the collapse of the CTV Building that can onlybe resolved through a disciplinary process. That is a factor, however, for theInstitution to consider. This judgment is not a direction that the disciplinaryproceeding against Dr Reay must continue.[93] Much the same points were raised by Dr Reay in his appeal from the HighCourt's decision. The Court of Appeal accepted the Attorney-General's submissionson the point and concluded:41Delay is not in itself a reason to deny relief and we are not persuaded on theinformation before us that Dr Reay will suffer material prejudice from it. Hehas been aware of the collapse since 2011 and the complaints since 2012.[94] Although four years have passed since the Court of Appeal's decision, I do notsee the pendulum – which swings between the public interest in allowing the40 Attorney-General v Institution of Professional Engineers New Zealand Inc, above n 9, at [121].41 Reay v Attorney-General, above n 10 at [57].disciplinary proceeding to continue, on the one hand, and prejudice to Dr Reay on theother – to have moved to such an extent as to warrant intervention from the Court.[95] It is certainly the case that further time has elapsed. However, that has notprejudiced Dr Reay's ability to respond to the complaint. Substantive responses havealready been provided by Dr Reay, on 8 March 2013 and 31 August 2020 (includingthrough the provision of affidavit evidence), as observed already. Further submissionswere provided in March 2022.42 Dr Reay has demonstrated through these documentsthat he is in a position to be able to provide substantive responses on the complaint.Dr Reay has, in addition, said in his evidence in this proceeding that he has engagedwith a person who has knowledge of structural engineering supervision practices inChristchurch in the 1980s who is alive and available to assist with the DisciplinaryCommittee hearing.[96] Delay is not a factor that should prevent the hearing from proceeding but it isa factor that can be advanced by Dr Reay during the hearing.[97] For Dr Reay it is said that the Disciplinary Committee has no express power totake delay into account. Reference is made to provisions in the DisciplinaryRegulations which enable both the Institution and the Investigating Committee todismiss a complaint if "an investigation of the complaint is no longer practicable ordesirable given the time elapsed since the matter giving rise to the complaint".43 It issaid that no such power is given to the Disciplinary Committee.[98] However, under cl 17, the Disciplinary Committee is to hear the matter and"decide whether or not there are grounds for disciplining the Member complainedabout under Rule 11 of the Institution".44 Equally, the Regulations provide that, if theDisciplining Committee decides that there are no grounds for disciplining the memberunder r 11 then the Institution must dismiss the complaint.42 The submissions, which were made to the Investigating Committee, dealt primarily withprocedural matters – including the delay issue – but were an opportunity for any relevant mattersto be addressed.43 Disciplinary Regulations, cls 7(b), 8(g) and 11(b).44 Disciplinary Regulations, cl 17.[99] These are broad discretions that relate not just to the Disciplinary Committee'sability to decide whether or not professional and ethical standards have been breachedbut whether an order under r 11.5 should be made. One of the reasons that adisciplinary body may decline to make a substantive order at the end of the day isdelay.[100] Furthermore, at a more fundamental level, the Disciplinary Committee has theability to find that it is not satisfied about particular facts if the quality of the evidenceis impacted by delay. From whichever angle it is approached, delay is a factor thatwill feature in the Disciplinary Committee's work.[101] Accordingly, the disciplinary process is able to, and should, see itself through.As discussed in [44] above, the Court would not normally permit judicial reviewproceedings to be heard before a complaint process is complete, other than inexceptional cases. For the reasons I have given, I am satisfied that in this case itcontinues to be in the public interest to enable the Disciplinary Committee to considerthe complaints substantively.[102] For these reasons, I do not see the periods of time that have elapsed since 1986(when the alleged issues arose), since the complaint was made in 2012, since the firstor second Investigating Committees began their work, since the second InvestigatingCommittee released its decision or since the Disciplinary Committee began its work,enable the cause of action under this head to be made out. I do not see the periods oftime as causing sufficient prejudice as to amount to – or to otherwise give rise to:(a) a breach of natural justice, including through s27 of the NZBORA orcl 38 of the Disciplinary Regulations;(b) an error of law in the form of a breach of the Disciplinary Regulationsreferred to in [37] above which require prescribed steps in thedisciplinary process to be undertaken "as soon as practicable"; or(c) procedural unfairness of any other kind.[103] As Elias J said in B v Medical Council, "[T]he disciplinary process in part isone of setting standards".45 Even although there have been changes to the wording ofthe Institution's Code of Ethics over the years, the setting of standards for theprofession and for the public lies at the heart of these proceedings and, whatever theoutcome may ultimately be, I do not see there to be grounds that are sufficient toprevent an outcome from being reached fairly.Result[104] Accordingly, the application for judicial review is declined.[105] If costs are sought and cannot be resolved between the parties, then theapplicant may, within 15 working days from the date of this decision, file amemorandum and the respondent may, within a further 15 working days, file amemorandum in response. Any such memoranda, including schedules, should belimited to five pages in length.____________________Radich JSolicitors:Buddle Findlay, Christchurch for ApplicantDentons Kensington Swan, Wellington for Respondent45 B v Medical Council, above n 33 at 811.