19 Nov 2018

Court bid to reopen CTV building engineering investigation

7:40 pm on 19 November 2018

Government lawyers have asked the High Court to order the Institution of Professional Engineers (IPENZ) to resume its investigation into the civil engineer responsible for the CTV building, which collapsed in the 2011 earthquake, killing 115 people.

Search and Rescue teams at the site of the CTV building in February 2011.

Search and Rescue teams at the site of the CTV building in February 2011. Photo: AFP / Ho / Usar

The engineering firm responsible for the building's design was owned by Doctor Alan Reay.

In December 2012 the Ministry of Business, Innovation and Employment's chief engineer, Michael Stannard, made a complaint to IPENZ - now known as Engineering New Zealand - about Dr Reay, and the design and construction of the CTV building.

However IPENZ abandoned its investigation when Dr Reay resigned his membership in February 2014.

MBIE lawyer Ken Stephen told Justice Collins Dr Reay had been deficient in a number of ways.

"He knew Mr Harding [the designer of the CTV building] lacked necessary experience to design a building of this kind... but failed to adequately supervise him.

"The Royal Commission into the earthquake also found Dr Reay exerted inappropriate pressure on Christchurch City Council to approve the building, which shouldn't have been done given the design deficiencies."

Mr Stephen said Dr Reay had breached the engineering code of ethics.

He also referred Justice Collins to a High Court decision from September 2014 relating to the way IPENZ had handled a complaint against the CTV designer, David Harding.

He said, as in the Reay case, IPENZ had failed to take further action against Mr Harding after he resigned from IPENZ before the conclusion of disciplinary proceedings.

Mr Stephen said Justice Mander found a person within a jurisdiction such as IPENZ could not escape proceedings by resigning from the industry body.

However, resignation might limit the disciplinary steps available.

Mr Stephen said after that decision came out the Attorney-General asked IPENZ to reconsider matters relating to Dr Reay and today's proceedings were filed in March 2015.

He said it was not disputed that Dr Reay was a member of IPENZ at the time that the CTV building was designed and also when complaints were made after the earthquake.

"I submit IPENZ has jurisdiction to hear the complaint and look at Dr Reay's conduct while a member. We say they were wrong in law to dismiss Mr Stannard's complaint."

Mr Stephen said MBIE was seeking a declaration that IPENZ had jurisdiction to investigate, that it was wrong in law to dismiss Mr Stanndard's complaint and wrong to set aside the complaint.

He said the IPENZ committee's decision to dismiss the complaint was open to judicial review because it was an exercise of statutory power.

Mr Stephen pointed to other High Court decisions relating to the ability for decisions of a wide range of such bodies being open to judicial review, including the Maori Women's Welfare League and the Kennel Club.

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, taking him away from its jurisdiction.

He said to resume the investigation five years after it stopped would cause problems for the organisation.

"How to go about continuing a disciplinary proceeding which is entirely contract-based in terms of the contract he broke five years ago.

"Conceptually it's hard to see how that might occur when steps in that [process] would require certain things to be done with a member and there is no doubt he isn't that."

Mr Palmer pointed to several other engineers who had inspected the CTV building since it was erected and said any fresh investigation would have to take that into account.

"One in 1990 found no significant issues. Another by Opus in '98 and '99 also found nothing wrong with it. After the Darfield earthquake there was another review of it and again after the September 2010 quake.

"Many parties were involved in the process and any IPENZ investigation would have to take that into account, not just Mr Reay's involvement."

He said lawyers for the Crown frequently referred to accountability, but he said IPENZ was a voluntary society and shouldn't be given responsibility to investigate matters relating to the collapse of the CTV building.

"If there was to be action, the police should have taken it, not them.

"It is like the tail wagging the dog if the voluntary association rules are the vehicle through which some hearing of high public interest [is] going to find some sort of accountability.

"That's not the fora for that sort of analysis, particularly when it's shown itself as quite inadequate in the Harding case, the recommendations of which haven't been implemented."

Mr Palmer will continue his submissions tomorrow.

The Court will then hear from the IPENZ lawyer.

Justice Collins is expected to reserve his decision.

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