Appealing
a decision made about a Complaint
If you do not
accept the outcome of the
investigation of your complaint by the Registration
Authority
(IPENZ) then you can appeal the decision by lodging an appeal with the Chartered Professional
Engineers Council (CPEC), as the body that reviews the work of IPENZ
Appeals must be lodged within twenty
eight (28) days of notification of the outcome of
your complaint.
Appealing
a decision to not register/re-register an engineer
The Chartered Professional Engineer
Rules allow engineers who were unsuccessful in their
application
for initial or continued CPEng registration to apply to the
Registration Authority for reconsideration. The only
grounds for requesting reconsideration are that the process of
assessment did not comply with the procedures
required by the CPEng Act or Rules. If an engineer is not happy
with the Registration Authority's decision, an
appeal can be made to Council
Any appeal to the Council should only be made after this avenue has
been fully explored - The
IPENZ procedures for investigating and hearing complaints also have
the opportunity for final
submissions,
and this avenue should be used prior to lodging any appeal
Appeals must be lodged within twenty eight (28) days of notification of
the decision being appealed.
Making an Appeal
Appeal Practice Note
(These
notes are a guide to the practice of the Council as it relates to appeals
generally. They are to be read
in addition to the Chartered Professional Engineers of
New
Zealand
Act 2002
(“the Act”) and the Chartered
Professional Engineers of
New
Zealand
(Appeals)
Regulations 2002 (“the Regulations”) which take precedence
in the event of conflict. These are not to be seen as inflexible rules, but
should be followed unless there is good
reason not to.)
1.
Service of Appeals
1.1
All appeals shall be filed with the Chartered Professional Engineers
Council
at
PO Box 3058 Wellington - 6140, or by facsimile to 04 473 7991 or by
email to appeals@cpec.org.nz.
1.2
The original and three copies of an appeal shall be filed
1.3
All appeals shall be provided with a unique number by the Council
and
correspondence
and documents relating to the appeal should refer to this
number
1.4
Parties are reminded that copies of appeals must also be served on
the
Registration Authority and any other party to the decision appealed
against.
2.
Content of an Appeal
2.1
The Notice of Appeal should be set out in the following format:
(a)
Appellant’s Full Name:
(b)
Full name of any other party
to the decision appealed:
(c)
The
decision or part of the decision appealed against (a
copy of the decision
should
be annexed to this notice of appeal):
(d)
The date the Appellant
received the decision:
(e)
The grounds of appeal.
(The grounds of appeal must be set
out to fully
inform the Council and any other party to the original decision of the
explanation for the appeal):
(f)
The
outcome or relief sought (IMPORTANT: The Council has no jurisdiction
to grant an outcome or relief that does not relate to the decision
appealed
against):
(g)
The
address for service for the Appellant. (The
Appellant must give a
physical and postal address as well as contact telephone number):
3.
Appeals filed out of time
3.1
On receiving a notice of appeal, Council will consider whether the
appeal
has been received out of time.
3.2
If the appeal appears to be out of time, the Chairman or Deputy
Chairman
will record it as having been received as such and shall inform the
parties accordingly.
3.3
If the Appellant wishes to proceed with an appeal filed out of time he or
she
must apply for a waiver, and an application should be made accordingly,
and served
on all other parties to the original decision.
The application should set out with
particularity the appeal to which it relates and the grounds upon which the
application
is made. All parties to the original
decision shall have the opportunity to file written
submissions in relation to the application which will be dealt with on the
papers unless
the Council decides otherwise.
3.4
A waiver will normally be granted if the other parties to an appeal
consent in writing.
3.5
In the absence of consent by all parties, a waiver will not normally be
granted unless
the party applying for the waiver can show good cause as to
why it should be granted.
4.
Pre-hearing Matters
4.1
The Act requires all appeals to be heard as
soon as practicable.
4.2 On receipt of a valid appeal, or confirmation of a waiver being granted
to an appeal filed out
of time, the Registration Authority shall, as soon as practicable and within 10
working days,
provide to the Council, the record of the evidence presented in reaching the
decision appealed
against and any other documents relevant the decision, including a copy of the
whole decision
to which the appeal relates and the reasons for that decision.
4.3
On receipt of
the record of evidence the Chairperson, or in his/her absence the
Deputy-Chairperson, shall convene an Appeals Panel comprising of at least
3 members of the
Council to hear the appeal and shall appoint one of those members as Principal
of that panel.
The parties shall be notified of the identity of the panel appointed and the
contact details for
the Principal.
4.4
The Appeals Panel shall determine whether or not it requires the
Registration Authority to
provide a written report setting out any considerations that the Registration
Authority had
regard to in coming to its decisions that are not set out in the reason for its
decision.
4.5
The Appeals Panel Principal shall fix a time and place for the hearing of
the appeal no sooner
than 21 days and no later than 42 days after being appointed and shall notify
the parties in
writing of the hearing date.
4.6
Any matters that a party considers should be brought to the Appeals
Panel’s attention prior to
the hearing should be made known to the Principal in writing as soon as possible
before the
hearing. If it considers it necessary the Appeals Panel will convene the parties
to any appeal
(by telephone if appropriate) to determine any preliminary matters.
4.7
It is anticipated that in disciplinary matters the Registration Authority
will not normally be heard,
but that on
registration matters the Registration Authority will normally be heard. It is
for the
Registration
Authority to decide if it wishes to be heard and to make an appropriate
application
at least 7
days before the date set for the hearing.
4.8
Parties to the appeal may file a summary of their arguments with the
Appeals Panel. If so,
these should be filed no later than 3 days before the hearing. Any such summary
of arguments
should also be served on all other parties.
5.
Hearing
5.1
Strict rules of evidence do not apply to appeal hearings by the Appeals
Panel.
The Appeals Panel is required to observe the rules of natural justice.
5.2
It is anticipated that prior to any hearing the Appeals Panel will have
read the record
of evidence and any summary of arguments. The appeal will proceed by way of
a
rehearing. That is why the Registration Authority is to provide the record of
evidence
of the matter appealed against.
5.3
Hearings are to be conducted in private. Prior to the commencement of any
hearing
those present will be required to state their names, addresses and interest in
the hearing.
5.4
Parties are entitled to represent themselves or be represented by any
other person
including legal counsel if they so wish. However, a person who has given
evidence in
a matter should not act as an advocate for a particular party.
5.5
In general, in matters where the Registration Authority is not a party
the Appellant will
be heard first. The Appellant will speak to any summary of argument and the
record
of evidence. The other party(s) shall then respond by speaking to any summary
of
argument and the record of evidence. The
Appellant shall then have the opportunity
of making any comments strictly in reply to the other party’s submissions.
5.6
In general, in matters where the Registration Authority is a party it
will be the last party
to be heard before the Appellant has the opportunity to make a reply.
5.7
Any member of the Appeals Panel may ask questions of any person appearing
at the
appeal hearing. If any new matter arises as a consequence of such questioning
other
parties shall be provided with the opportunity to comment on the new
matter.
5.8
The Appeals Panel will not normally permit the cross-examination of a
witness, but will
ensure that every party has fair opportunity to comment on all matters. This may
include
the calling of rebuttal evidence if appropriate.
5.9
At the conclusion of the hearing the Council will declare the appeal
hearing closed save
for the issue of dealing with costs if appropriate.
5.10
The Appeals Panel will endeavour to provide its written decision to the
parties within
14 days of the hearing closing.
6.
Adjournments
6.1
Hearings will not be adjourned without good reason.
As a general comment the
unavailability of particular legal counsel is not likely to be considered good
reason
unless such unavailability occurs at unavoidable short notice such that another
legal
counsel would not have sufficient time to familiarise himself or herself with
the papers
and fairly represent the party concerned.
7.
Costs
7.1
The Appeals Panel has the power to award costs
of the appeal. This includes the costs
of any other party to the appeal.
7.2
Where in giving its decision on an appeal, the Appeals Panel considers
that costs should
be awarded it will either fix a specific sum in its decision, or will indicate
its willingness
to make an order concerning costs, and reserve its decision on the amount of the
award.
7.3
If the decision so indicates, the parties will make submissions on costs
and then an
award may be made in due course.
Websites:
The Act and Rules – www.cpec.org.nz/operation.htm
Appealing a decision – www.cpec.org.nz/appealing.htm
Council Members - www.cpec.org.nz/members.htm
From:
Chartered Professional Engineers Council
Original
Appeal Practice Notes
-
2nd December 2003
This version
–
2 December 2011
