WOJCIECH KLEPACKI (VOYTEK KLEPATSKI) v INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND [2017] NZHC 3300

WOJCIECH KLEPACKI (VOYTEK KLEPATSKI) v INSTITUTION OF PROFESSIONAL ENGINEERSNEW ZEALAND [2017] NZHC 3300 [22 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-000115[2017] NZHC 3300BETWEEN WOJCIECH KLEPACKI (VOYTEKKLEPATSKI)AppellantAND INSTITUTION OF PROFESSIONALENGINEERS NEW ZEALANDRespondentHearing: 29 June 2017 and 11 October 2017Appearances: The Appellant in PersonM Broad for the RespondentJudgment: 22 December 2017JUDGMENT OF HINTON JThis judgment was delivered by me on 22 December 2017 at 5.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Kensington Swan, AucklandParty:The AppellantIntroduction[1] This is an appeal from a decision of Judge Cunningham, which was in turn anappeal from a decision of the Chartered Professional Engineers Council (the Council)in a disciplinary proceeding brought against Mr Klepacki.[2] The question on appeal is whether the District Court correctly upheld thedecision of the Council that Mr Klepacki had breached r 48 of the CharteredProfessional Engineers of New Zealand Rules.[3] Rule 48 has since been amended, but it provided as follows:48 Inform others of consequences of not following advice(1) A chartered professional engineer who considers that there is a risk ofsignificant consequences in not accepting his or her professionaladvice must take reasonable steps to inform persons who do not acceptthat advice of those significant consequences.(2) In this rule, significant consequences means consequences thatinvolve–(a) significant adverse effects on the health or safety of people; or(b) significant damage to property; or(c) significant damage to the environment.[4] Mr Klepacki can only appeal on a point of law.Background[5] This matter has a lengthy background. It all began back in 2004 whenMr Klepacki, who is a chartered professional engineer, was engaged to provideengineering services to a Mr Stone and a Ms Jones for the design of their house onKawau Island. Mr Klepacki undertook the structural design and prepared the buildingconsent drawings. The scope of Mr Klepacki's engineering services was not formallyagreed. Another engineer, Dr John Hawley, was engaged as a geotechnical engineerto produce a design for the house's wastewater treatment and disposal system. MrKlepacki at all points disavowed any instruction as a geotechnical engineer and madeit clear he had no relevant qualification.[6] Mr Klepacki stated that he believed the design he produced complied with therelevant provisions of the Building Code, subject to verification of the site's groundconditions. A building consent was issued for the property, subject to a requirementthat Mr Klepacki's firm certify that the foundation excavations "either comply withthe design or have been amended to suit the on site conditions". Mr Klepacki made itclear to the clients that he could not, and would not, provide that certification. At somepoint he told them they needed to engage a geotechnical engineer. No geotechnicalinvestigation of the site's ground conditions occurred and Mr Klepacki did not revisehis design assumptions in respect of the ground conditions.[7] The house was built very close to a cliff. Following some very heavy rainfallevents and damage to the house, it was moved five metres back from the cliff.[8] In September 2013, Mr Stone and Ms Jones laid a complaint with the Instituteof Professional Engineers of New Zealand against Mr Klepacki, alleging that he hadbreached his obligations under the Chartered Professional Engineers of New ZealandAct 2002 and the Chartered Professional Engineers Rules in respect of his involvementin the design and construction of their house.[9] In February 2015, a disciplinary committee found that Mr Klepacki hadcontravened r 45 of the Code of Ethical Conduct of Engineers on two bases and alsobreached r 48.1 (Rule 45 provided that a chartered professional engineer must acthonestly and with objectivity and integrity in the course of his or her engineeringactivity.)[10] I note that the disciplinary committee recorded in its decision that "the damageto the house may still have occurred even if Mr Klepatski (sic) had fulfilled hisprofessional obligations and ensured that appropriate advice was obtained regardingthe ground conditions on the site. There is no incontrovertible evidence to demonstratewhat caused the movement and subsequent damage to the structure".2[11] Mr Klepacki appealed to the Chartered Professional Engineers Council, whichdid not uphold the breaches of r 45, but did uphold the breach of r 48. The Council1 Stone & Jones v Klepacki (Disciplinary Committee, 4 February 2015).2 At [5.93].imposed relatively small penalties of censoring Mr Klepacki, fining him $1,000 andrequiring him to make a contribution of $12,500 to costs.3[12] Mr Klepacki appealed to the District Court. Judge Cunningham upheld thefinding, but reduced the fine. She also reduced the costs award.4This appeal[13] Appeals from the District Court to this Court under the Chartered ProfessionalEngineers of New Zealand Act 2002 are limited to questions of law.5[14] An error of law is made out if the decision-maker failed to take into account arelevant matter, took into account an irrelevant matter, failed to apply a statutoryprovision correctly, or the decision-maker made a finding of fact that is so clearlyuntenable that the only reasonable conclusion contradicts that finding. 6[15] The burden of proof in a disciplinary proceeding rests on the disciplinary body.The standard of proof is the civil standard, which is that facts must be proved on thebalance of probabilities.[16] For there to be a breach of r 48, the following matters have to be proven againstMr Klepacki:(a) that he told the complainants they should engage a geotechnicalengineer;(b) that he knew the complainants had not accepted that advice;(c) that there was a risk of significant consequences for the complainantsin not accepting that advice; and3 Klepacki v Stone & Jones (Chartered Professional Engineers Council, 6 August 2015).4 Klepacki v Institution of Professional Engineers New Zealand [2016] NZDC 26199.5 Chartered Professional Engineers of New Zealand Act 2002, s 38(1).6 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]-[26].(d) that he failed to take reasonable steps to inform the complainants ofthose significant consequences.[17] In terms of (a), it is undisputed that Mr Klepacki told the complainants theyshould engage a geotechnical engineer.[18] Mr Klepacki's position in terms of (b), (whether he knew the complainants hadnot accepted that advice) is somewhat equivocal, amongst other things because heconsidered they had engaged a geotechnical engineer, namely Dr Hawley. But I amsatisfied for all material purposes that he did know the complainants had not acceptedhis advice. Further, it is not particularly material because of my finding on the nextpoint.[19] Mr Klepacki's position as to (c) is quite firmly that he did not accept there wasa risk of significant consequences from not obtaining a geotechnical report.[20] Mr Klepacki's evidence before the Council seems to have been much as hissubmission to me (once I had understood it), which was that he initially consideredthere was a risk, although not a significant risk, because his own view was that theground was stable. His initial concerns were assuaged by receipt of a report fromDr Hawley, who is, as earlier recorded, a geotechnical engineer. Dr Hawley recordedin his report as follows:3.2 Site Stability:Is expert evaluation necessary? No.If NO why not? Strong Greywacke soils with reduction of surface andgroundwater flows by house upslope, raised bed minimising effluententry into in situ soils, and planar topography.[21] Dr Hawley's report was only in respect of on-site waste water disposal, so onewould have to be sceptical as to whether that would be sufficient, but returning to therequirements of the rule, Mr Klepacki's evidence and argument is that he did notconsider there was a risk of significant consequences after he received the Hawleyreport.[22] The disciplinary committee in its decision did not make any actual finding asto (c) above, namely that there was a risk of significant consequences for thecomplainants in not accepting Mr Klepacki's advice to engage a geotechnical engineer.[23] The Engineers Council did specifically deal with that matter as follows:72. The Panel considers that the lack of appropriate geotechnical input intothe design and construction of a cliff edge property could reasonably beexpected to have "significant consequences" to both the safety of people anddamage to property.[24] No reasons are given as to that finding in the decision.[25] In the District Court, Judge Cunningham repeated that there were significantconsequences. She said there were two reasons why obtaining a geotechnicalappraisal of the property was necessary, the first being that there was clay on the landand clay can expand when it gets wet. The second was that there were trees all overthe property and tree roots can cause problems with foundations. The Judge said thatbecause the house was on a cliff top, if the foundations failed, the likelihood of therebeing an adverse effect on the health or safety of people or the prospect of damage tothe property was obvious.7[26] I asked counsel for the respondent to take me to such evidence as there wasthat might have enabled Judge Cunningham (or the Engineer's Council) to make thefinding that there was a risk of significant consequences if a geotechnical engineerwas not engaged. This could be, for example, expert evidence, or evidence of aconcession by Mr Klepacki.[27] Mr Broad, on behalf of the respondent, to support the finding that there was arisk of significant consequences, points to the simple fact that the house was built in acliff-top location and that the site was recorded by Rodney District Council as beinglocated in the vicinity of land containing expansive soils which may not meet "goodground criteria" as defined in NZS3604:1999. He points to the fact that Mr Klepackirefused to approve foundations at a site visit on 4 February 2005 and to variousconcerns that Mr Klepacki did express in his evidence. He submits that there was7 Klepacki v Institution of Professional Engineers New Zealand [2016] NZDC 26199 at [35]-[38].clearly a risk that significant consequences could arise out of the lack of appropriategeotechnical input.[28] These matters do not amount to evidence that there was a risk of significantconsequences in not obtaining a geotechnical report. (I note, although it is a somewhatdifferent point, that there was no incontrovertible evidence to demonstrate what causedthe movement and subsequent damage to the structure.)[29] Mr Broad also made the point that Mr Klepacki must have considered therewas a risk of significant consequences, because why else would he have persistentlyadvised the complainants and the project manager to obtain geotechnical input?Mr Klepacki's answer to this, consistent with the record, was that he consideredgeotechnical input was necessary to comply with the building consent and he was notprepared to be given the responsibility of sign-off for that consent when he did nothave that specialist expertise. That did not mean he considered there was a risk ofsignificant consequences for the complainants in not accepting that advice. He wasvery clear that he did not. He was concerned rather that the complainants properlycomply with the terms of the building consent and that the wool not be pulled over theCouncil's eyes, or words to that effect. He was very much concerned that he not be atrisk of liability when he had made it plain from the outset that he was not ageotechnical engineer and any work he did must fall outside those terms of reference.[30] Mr Klepacki argued that the test under r 48 is subjective and I accept it isworded that way. Disciplinary rules should clearly signal the basis on which they areto be complied with. However, I accept the respondent's submission that the test mustbe objective, not subjective. In these circumstances, it makes no difference. There isno clear evidence that non-engagement of a geotechnical engineer would lead to a riskof significant consequences. On that basis, I consider that Judge Cunningham madean error of law.[31] As a consequence, I consider that the disciplinary orders must be overturned.[32] I should add further that no criticism should be made of Mr Broad, whosesubmissions were impeccable. I also make no criticism of the Institution ofProfessional Engineers New Zealand. They have proceeded on the assumption thatMr Klepacki accepted there was a risk of significant consequences, when he did not,and so no evidence has been called to that effect. I have had to work through the mireof Mr Klepacki's submissions to clearly understand his position, which it was verydifficult to glean from those submissions. He raised, as I recorded in my Minute of 20July 2017, a very large number of points of appeal which clearly did not amount to aquestion of law, nor were they points that were going to make any material differenceto the judgment for the very great part.[33] In addition, I do not accept Mr Klepacki's submission that the Council hasmisled the Court, or any submission to that effect. I have no reason to consider thatthe Council has behaved other than entirely properly.[34] As I said at the hearing, Mr Klepacki has not clothed himself in glory in thismatter. He has been dragged into a professional commitment which operated in a veryunprofessional way, inter alia, in the sense that nothing was put in writing (or verylittle), and he stood by, even when he knew that the clients were not doing thingsproperly, albeit it would seem he told them that. He then walked away thinking thatwould force their hand.[35] Given the disciplinary orders cannot stand, I quash all of the orders made,including those for costs.[36] As Mr Klepacki is self-represented, he is not eligible for any order as to costs,other than disbursements. The respondent is to pay disbursements actually incurredby way of Court filing and hearing fees.--------------------------------------------------Hinton J