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APPEAL NUMBER SIX Appeal 3/11
1.
This is an appeal to the Chartered Professional Engineers
Council (“the Council”) under the Chartered Professional Engineers of New
Zealand Act 2002 (“the Act”) from a decision of a Chair of Investigating
Committees of the Registration Authority dated 12 May 2011 in which a complaint
by N, against B, both chartered professional engineers, was dismissed without
being referred to a full Investigating Committee on the basis that the alleged
misconduct was insufficiently grave to warrant further investigation, as
permitted by Rule 57(ba) of the Chartered Professional Engineers of New Zealand
Rules (No 2) 2002 (“the Rules”). 2.
N’s emailed notice of appeal was received by the Council on 3.
At it’s meeting on 3 June 2011 the Council appointed an
Appeal Panel consisting of Graham Shaw as Principal, Ms Hazel Armstrong and Mr
Jon Williams as members. 4.
N’s original complaint to the Registration Authority was in
respect of the actions of B assisting a tenant to gain temporary access via a
crane and balcony to the 15th floor of a Christchurch office tower
which had been “red stickered” and was within the CBD cordon following the
22 February 2011 Christchurch earthquake. 5.
The complainant’s appeal is essentially to challenge the
dismissal of the complaint by the Registration Authority on the basis that N
does not accept that B’s actions were acceptable and B had not exercised his
duty of care to all and had acted unethically and irresponsibly. 6.
The parties were given the opportunity to make submissions and
the Appeal Panel met via telephone conference call on 7.
Appeals are by way of rehearing (section 37(2)).
We are entitled to confirm, vary or reverse a decision (section
37(5)(a)). We may make any decision
that could have been made by the decision authority (section 37(5)(c).
Following Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141
we are entitled to take a different view from the Chair of the Investigating
Committee, but the appellant carries the burden of satisfying us that we should
do so. We think it relevant that
this was a preliminary decision made “on the papers”.
Since if it is correct the substance of the matters in issue will not be
tested by an Investigating Committee we consider that the threshold to be
crossed by a complainant in these circumstances is set relatively low, but not
so low as to render the criteria listed in Rule 57 nugatory. 8.
We are mindful that Rule 57 does not contain any criteria
equating to a “strike out” application – ie a ground that would allow a
complaint to be dismissed on the basis that it could not possibly succeed at
law. We consider that we are
entitled to have regard to the evidence placed before the Chair of the
Investigating Committee to see if the complaint should proceed further or be
dismissed under Rule 57(ba) as happened here, or for any of the other reasons
listed in Rule 57 which is a decision that would have been open to the Chair of
the Investigating Committee. 9.
In his notice of appeal N alleges behaviour by B which could
amount to a breach, or breaches, of the code of ethics and explicitly mentions
the IPENZ competency elements of risk management, ethical conduct and judgement.
10.
It is clear that a number of the alleged actions complained of
by N were not actually undertaken by B. This is acknowledged by N in his final
submission to the Appeal Panel in which he states “It would have been really
helpful if B had provided this level of information at the time of the original
complaint because it would seem that his involvement in preparations to access
the building was fairly limited.” 11.
That brings us to the basis for dismissal of the original
complaint; subparagraph (ba): (ba)
the alleged misconduct is insufficiently grave to warrant further
investigation; 12.
We consider that this ground requires us to consider the facts
and to consider whether the low threshold that we discussed earlier in this
decision has been met so as to allow the matter to move on to an Investigating
Committee. 13.
We have undertaken this exercise and concur with the Chair of
Investigating Committees that the only possible shortcoming is that B could have
made contact with the building owner. That obligation is in our view a courtesy
not an ethical obligation in these circumstances. Whether making contact with
the building owner would have changed anything is however supposition. 14.
The papers show that the building owner was using its
construction company, H, to communicate regularly with the building’s tenants
and not N’s company. H had advised B’s client that access to its floor was
unlikely to be obtained until early 2012 at the earliest – a timeframe which
was obviously unsatisfactory to B’s client. The tenants were also advised that
no attempt to access the building should be made without proper authority and
spelt out the process for this. It appears that it was this process which B’s
client subsequently followed in arranging access. 15.
Based on the above we have come to the conclusion that the
complaint should be dismissed on this ground for the following reasons: 16.
The ground on which the complaint can be dismissed is that the
misconduct is insufficiently grave to
warrant further investigation. That
requires consideration of the alleged misconduct for seriousness.
How grave is it? We have to
say that when viewed in context we do not think it is very grave at all and does
not cross the low threshold. 17.
It is evident that B’s client discussed with Civil Defence
the question of notification to the owner and it was decided that it wasn’t
necessary. (We note that Civil Defence’s guidelines in respect of owner
notification have subsequently changed, but at the time the criteria operating
were met.) It is evident that B was not part of that discussion or decision. 18.
B’s client was obviously aware of the plans being worked on
for temporary access but the timing of these was unacceptable and so was forced
to make their own arrangements and did so within the then applicable guidelines
and with the necessary approvals. Outcome 19.
The decision of the Chair of Investigating Committees to
dismiss the complaint is confirmed. The appeal is declined.
20.
This decision which does not identify the parties may be
published by the Registration Authority. Dated
this 22 day of August 2011 Graham Shaw
…………………………………………… Jon Williams
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