Building practitioner misconduct – What is the legal test for a finding of practitioner misconduct in Victoria and NSW?
By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers
With the advent of private building surveyor or certification services over the last 20 or so years, we have seen private practice building practitioners armed with the status of public officials making regulatory decisions to uphold the ‘public good’ of community standards.
It is self-evident that when a private certifier or building surveyor is performing their functions their true client is the public or the community, which has an interest in the maintenance of safe and reliable building standards. This is despite the fact that the commercial client is an owner or developer who is faced with the imperative of building as quickly and cheaply as possible.
Given the importance of the building surveyor for issuing commencement and completion approvals, the building surveyors themselves obviously need a system that regulates their conduct and ensures appropriate standards are adhered to. Disciplinary powers are therefore also required in order to police the standards.
However, could it be that in the drive to maintain community standards, some decision makers are losing sight of the key demarcation between professional error on the one hand and professional misconduct on the other? There is or should be a distinction between the two, and the judgment of the trier of the fact should be cool and reflective before there is any decision made that the line has been crossed.
There is case law in different States and Territories relating to building surveyors or certifiers, and the principles applied in one jurisdiction will be persuasive in another. In fact, the principles applicable to different professions (not just building) can be apposite in all areas of professional misconduct advocacy.
This is because all professional misconduct findings must be sourced in a decision by the fact finder that they are “reasonably satisfied” that misconduct has been proven against the practitioner, so that an adverse disciplinary finding can be made against them. This is a higher standard of proof than the usual civil standard in contract or negligence disputes, where you simply have to prove your case to the threshold of “more likely than not”.
In professional misconduct however, because of the severe reputational and potentially financial consequences to a person and their career, the higher standard of proof of “reasonable satisfaction” is needed before the person should be found guilty. This is not as high an onus as the level of “beyond reasonable doubt” found in criminal trials, but is still a high threshold that leaves little room for grey areas. Interestingly, the standard of proof for misconduct charges was initially set down in a case examining martial misconduct in the late 1930s, being the case of Briginshaw v Briginshaw  HCA 34.
There is also case law in different Australian jurisdictions making a demarcation between professional negligence or errors on the one hand that should not amount to an adverse disciplinary finding, versus more significant and severe conduct that could or should amount to such a finding.
In Building Professionals Board v Cogo  NSWADT 119, per O’Connor J:
“It is a familiar aspect of the law relating to professional discipline that a distinction is drawn between incompetent conduct that, though careless and negligent, is not so objectionable as to warrant an adverse disciplinary finding and on the other hand incompetent conduct which is more serious and warrants an adverse finding.” (Paragraph 41)
While this case deals with a NSW decision it refers to matters which are persuasive and important to misconduct determinations in other States. Further, in that same case it was stated at page 10:
“While clause 145 [of the EP&A Regulation (NSW)] clearly imposes a professional obligation, it does not, in our opinion, follow that any breach of a professional obligation should result in an adverse disciplinary finding.”
Clause 145 of the Regulation was referred to in the case, and that is relevant to consistency between the (DA) plans approved at the planning stage and the later plans approved by a building certifier/surveyor prior to building commencement (eg the Construction Certificate approved plans).
This article submits that while some charges will be more clear-cut against a building surveyor, some other charges will be predicated on the building surveyor having allegedly exercised their discretion unreasonably or unprofessionally. It follows that it is the practitioner’s statutory discretion, after they have appropriately conducted the professional assessment for themselves, that is being impugned. That professional discretion is not without limits and can be questioned on a technical level; the problem is where there are ‘grey areas’ where reasonable and qualified minds can differ.
For example, in Victoria an offence of having issued a Building Permit where the Building Surveyor could not have been satisfied the building works would comply with the Building Act 1993 and the regulations, or where the Building Permit was clearly inconsistent with the Planning Permit, could in some instances be quite easily made out as a breach of section 24 of the Building Act 1993.
On the other hand, charges that are based on alleged breach of clause 1502 of the Regulations (ie failing to perform work “in a competent manner and to a professional standard”) are obviously more ephemeral or discretionary when it comes to the trier of fact evaluating whether a charge is made out on the facts.
One should not forget that the building surveyor too is entitled to a professional discretion. Where the charge itself is saying or implying that the professional discretion was exercised unreasonably, then it is the writer’s view that this needs a high threshold to be reached before a finding of guilty should follow. Something akin to a decision that no properly qualified building surveyor in this situation acting reasonably should have come to the same decision.
In other words, the disciplinary tribunal would need sound and reliable evidence before disturbing the practitioner’s discretion and saying it was unreasonable.
Further to that, it is the writer’s contention that not every professional error that is made out should necessarily amount to an adverse disciplinary finding against the practitioner. All professionals are human and from time to time administrative or other failings will come to the fore.
To err is human, but something higher than any professional mistake is needed before a misconduct investigation or finding should follow. An absolutist position is not what is needed in order to afford sufficient protection to the public. So much has indeed been said in NSW case law, as has been referred to above.
Lovegrove & Cotton: Leaders in building practitioner legal representation
Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Kim Lovegrove RML, FAIB is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedents in Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing firstname.lastname@example.org.