Introduction
In 1986 David Harding was involved in the design of the CTV Building in Christchurch. As is now well-documented, this building collapsed in the earthquake of February 2011 – with fatal consequences. At the time of designing the building, Mr Harding was a member of the Institution of Professional Engineers New Zealand (“IPENZ”).
Following the building’s collapse, IPENZ received complaints regarding Mr Harding’s involvement in its design. The complaints initiated IPENZ’s disciplinary procedure, which resulted in an investigating committee in April 2014 determining that the complaints should be referred to a Disciplinary Committee. In June 2014 Mr Harding resigned his membership of IPENZ.
The IPENZ Disciplinary Committee
In August 2014 the complaints went before an IPENZ Disciplinary Committee hearing. Mr Harding argued that the committee had no jurisdiction to hear the complaints on the basis that he had resigned his membership of IPENZ a few weeks previously.
Despite Mr Harding’s objections, IPENZ proceeded on the basis that it did have jurisdiction and it subsequently released its ruling on that issue, Harding v Institution of Professional Engineers New Zealand Incorporated [2014] NZHC 2251.
Judicial review application
Following the IPENZ ruling, Mr Harding sought a judicial review of IPENZ’s decision that it had jurisdiction despite the resignation. Mr Harding submitted in support of his position that:
- IPENZ’s jurisdiction was limited to current IPENZ members only; and
- It would be a breach of natural justice for IPENZ to retain jurisdiction in such circumstances.
In response, IPENZ contended that:
- It was the individual’s membership status at the time of the complaint or conduct in question (and not at the time of the hearing) which impacted on the question of jurisdiction; and
- It was sufficient that Mr Harding was a member of IPENZ at the time of the conduct giving rise to the complaints and when the complaints were made.
The Court focused on the internal rules and disciplinary regulations of IPENZ. It was agreed that Mr Harding was a member of IPENZ at the time of his involvement in the design of the CTV Building and at the time of the complaints which were the subject of the disciplinary hearing – these points were not in contention.
The sole issue between the parties was whether the IPENZ rules and regulations provided jurisdiction to hear a complaint and to make a decision regarding a former member of IPENZ – and so (in the language of judicial review and public law), whether the decision of IPENZ was ultra vires (beyond its powers).
The IPENZ rules and regulations
The Court considered the IPENZ rules, in particular the following:
- Rule 3, which sets out the object of IPENZ. This is described as “the advancement of the professions of engineering within New Zealand”;
- Rule 4, which sets out the professional obligations of IPENZ members, including the requirement for an undertaking by each candidate for membership that they will abide by the IPENZ rules and regulations. Under Rule 4, members must also comply with a code of ethics and with obligations of competence and good character;
- Rule 11, which requires IPENZ to prescribe disciplinary regulations.
Upon receipt of a complaint which may indicate that a member has acted in breach of the Rule 4 membership obligations, the rules provided that the Chief Executive of IPENZ must (in other words a mandatory, not optional, process) either refer the matter to a Disciplinary Committee or carry out further investigations. Upon completion of its investigations, an investigating committee must (mandatory again) either refer the matter to a Disciplinary Committee or dismiss the matter. Under Rule 11.5 there were various sanctions available to the IPENZ Disciplinary Committee, including suspension or expulsion. If there were grounds for discipline, a Disciplinary Committee was required to decide whether and how to exercise its powers under the rules.
Mr Harding argued that as he was no longer a member of IPENZ, its rules and regulations no longer applied to him. He further contended that as the Disciplinary Committee no longer had any power to make any orders against him, proceeding to hear the complaint was an empty exercise. IPENZ accepted that it no longer had powers to make any orders against Mr Harding as a member of IPENZ.
The decision
In considering the meaning of the term “member” in the context of the rules, the Court concluded that a member included someone who may have resigned prior to the hearing of complaints made against him by a Disciplinary Committee.
Although Mr Harding’s resignation limited the Disciplinary Committee’s full range of potential disciplinary measures, the Court noted that the sanction of publication still remained open to IPENZ, and this could have a punitive effect in its own right.
The Court emphasised the importance to the public of there being an effective complaints procedure, to investigate and hold to account individuals who are members of a recognised professional body at the time of the conduct the subject of the complaint, or at least the time the complaint was made.
The Court also rejected Mr Harding’s suggestion that if “member” was limited to a current member, he would be denied the opportunity to appeal to IPENZ and that this would constitute a breach of natural justice. The Court held that just as the committee had jurisdiction in respect of Mr Harding’s conduct as an IPENZ member, so too would Mr Harding be entitled to make a request for an appeal in respect of any sanction imposed by the committee.
Mr Harding’s application for judicial review was therefore unsuccessful.
Conclusion
This case will be of interest to engineers and others involved in the construction industry, but it is also of potentially broader application to members (both current and former) of any recognised professional body. As a matter of pure legal interpretation the Court found that IPENZ had jurisdiction under its rules to hear complaints and make orders in respect of a former IPENZ member. That must also surely be the correct outcome from a public policy perspective.
If you would like further information please contact Daniel Shore on 07 958 7477.
