“Here we have an 82-year-old man facing a historical complaint that is stale, no longer relevant and utterly futile,” the man’s lawyer said, encouraging the judge to dismiss the complaint today.
Dr Alan Reay, who owned Alan Reay Consultants, has been criticised for giving his inexperienced structural engineer David Harding “sole responsibility” for designing the Canterbury Television (CTV) building when he knew the engineer lacked the necessary experience.
On Monday, at the Wellington High Court, Reay sought a judicial review of Engineering New Zealand’s, formerly the Institution of Professional Engineers (IPENZ), complaint process.
The complaint against Reay was first raised in December 2012, after the release of a Canterbury Earthquakes Royal Commission report, which found Reay breached the 1986 IPENZ Code of Ethics.
The complaint was dropped for some years after Reay resigned his membership of the engineering professional body, but was reopened in 2019. Since then, Reay has been fighting the process to have the complaint against him heard.
Reay’s lawyer Kirsty McDonald KC said in court today the complaint relating to his alleged failure to properly supervise Harding, who was responsible for the building’s design, was no longer relevant.
She said the 1986 rules and code of ethics were no longer in force and hadn’t been for many years so trying to hold Reay accountable in 2023 was a “complete mismatch” and there was “no public interest” in proceeding with the complaint.
McDonald also said her client had suffered prejudice because of the “drawn out” complaint process.
“This process is shambles and has resulted, and will continue to result in, extreme prejudice of Dr Reay,” McDonald said.
“It is nothing more than trying to punish Dr Reay and that is not a purpose for disciplinary proceedings.”
“There is no need for accountability, Dr Reay is retired ... The IPENZ process has misfired, and it needs to stop.”
A statement released this morning on behalf of Reay said the engineering standards in 1986, when the building was designed, did not include an express supervision requirement.
“Alan regrets the tragic loss of life when the CTV Building collapsed in the Christchurch Earthquake in February 2011 and will always carry this loss with him. He questions what can be gained from continuing IPENZ’s action against him.”
The statement said Reay turns 82 this month and ceased practice as an engineer many years ago.
McDonald also criticized IPENZ for the “unnecessary delay” in bringing the complaint, noting the several months it took the professional body to refer the initial complaint and put a disciplinary committee together.
She said IPENZ also blamed Reay for the delays, accusing him of “delaying tactics” which is strongly denied by Reay, who she said had “engaged fully” in the complaint process and continuously sought ways to keep it moving.
She rejected the idea that Reay didn’t know the full capacity of the complaint against him, stating he had been “utterly consistent” in his evidence that he didn’t need to supervise Harding.
Clark said there were a range of penalties Reay could face if the disciplinary process went ahead such as a fine, which was “neither stale nor futile”.
She acknowledged the process had been long and had multiple stages but said Reay had always been provided with adequate notice of questions he might need to answer.
Clark also said Reay had been given opportunities to be heard and had been given extensions from time to time when he had asked for them. She rejected the idea Reay had suffered any prejudice.
Clark said there was high public interest in holding professionals to account, particularly in this case, noting that 115 people were killed as a result of the CTV building collapse.
She said the process was not about punishment but holding professionals to account and Reay’s age was not a sufficient reason to put a stop to disciplinary proceedings.
“This application should be dismissed and the disciplinary committee should be allowed to get on with their job without further delay,” Clark said.
The complaint timeline
The chief engineer for the Ministry of Business, Innovation and Employment (MBIE) made the complaint against Reay following the release of the Canterbury Earthquake Royal Commission report in 2012.
But Reay resigned his voluntary membership of the institute in February 2014 while the professional body was investigating the complaint and later decided not to pursue any disciplinary action against him. IPENZ concluded it no longer had jurisdiction to deal with a former member.
In November 2017, a police investigation concluded that there would be no criminal prosecution in relation to the collapse of the building.
In December 2018 the High Court declared IPENZ had jurisdiction to hear the complaint against Reay and the investigating committee was wrong to dismiss it.
Reay took this decision to the Court of Appeal, however, the decision was upheld, and a new investigating committee was appointed.
The complaint was set to be heard in August this year, but Reay took the matter to the Wellington High Court, seeking a judicial review of the process.
Justice Paul Radich, who is presiding over the hearing, reserved his decision.
By Emily Moorhouse, a Christchurch-based Open Justice journalist at NZME.
She joined NZME in 2022.
Before that, she was at the Christchurch Star.
