The engineer behind a building that came down in an earthquake resigned from the body that was investigating him, preventing that from continuing, the High Court in Wellington has heard.
Rescue services at work on the Canterbury Television (CTV) building. Photo: USAR / AFP
Alan Reay was the civil engineer responsible for the CTV building, which collapsed in the 2011 Christchurch, killing 115 people.
The Institution of Professional Engineers New Zealand (IPENZ), now known as Engineering New Zealand (ENZ), later began investigating him, but it halted its investigation when he resigned his membership in February 2014.
On Monday, lawyers for the Ministry of Business, Innovation and Employment (MBIE) asked the court to make declarations the organisation had jurisdiction to investigate Dr Reay and was wrong in law to dismiss the complaint against him.
However, Dr Reay's lawyer Willie Palmer said his client's IPENZ membership was a contract between the organisation and him and once he resigned, that contract was at an end.
On Tuesday, Mr Palmer read to the High Court in Wellington extracts from a legal opinion that had been sought by IPENZ when it dismissed the complaint against Dr Reay.
That advice, from Pheroze Jagose, who is now a High Court Judge, said the organisation's disciplinary rules referred to dealing with "complaints against members", which meant no action could be taken unless the person was a member at the time and remained so throughout.
The question of membership of professional bodies also arose, with Mr Palmer saying membership of Engineering New Zealand was quite different from that of other organisations such as the Law Society.
He said lawyers had to join the society in order to carry out their professional duties.
"It's a compulsory membership body, the maximum fine it can [impose on members for breaches] is $30,000.
"There are four or five pages in [its] index devoted to disciplinary procedures. Anyone who commits the ultimate misdemeanour is subject to being struck off and unable to earn a living as a lawyer anymore."
However, Mr Palmer said engineers could carry out their duties without joining IPENZ and it appeared discipline was not front and centre of the organisation's objectives or reason for existence.
"The organisation has only one object - the advancement of the profession of engineering within New Zealand.
"The means by which it achieves that is indistinct ... and the preponderance of them are technologically focused; 'developing technological skills', 'supporting engineers in career development' etc."
ENZ lawyer Megan Neill told the court the organisation had a complicated history and part of that difficulty had arisen in defining who an engineer is.
She said there were a range of different types of engineer and the organisation would prefer to move to some kind of licensing scheme, where members would be more defined by the scope of the work they do.
Ms Neill said if that was done it would be a prerequisite for engineers to join the organisation before they could apply to be licensed.
Dr Reay's other lawyer, Olly Peers, also raised questions around how resumption of a disciplinary process against his client would actually work, but said the bigger issue was what the court should do regarding what MBIE's lawyers were seeking.
He queried whether, if the court found it was possible for the investigation to resume, if it would have any discretion in whether it actually ordered that to happen.
"IPENZ has to have a jurisdiction to continue with this process and that has to be based in contract ... even if it was wrong to do so, that contract has finished.
"Even following the resignation of Doctor Reay the residual jurisdiction for the committee to continue was severed irrevocably when [it] discontinued the complaint."
Mr Peers also pointed to logistical difficulties around reinstating the investigation.
"If it's granted, do we try and find the same committee members? Do we go back to the start of the process?
"Also, one of the committee members was subsequently a witness in the disciplinary hearing into another matter.
"Can Dr Reay be compelled to behave as if he were [still] a member?"
Justice Collins has reserved his decision.