How to Respond to Building Practitioner Disciplinary Action
By Lovegrove & Cotton – Construction and Planning Lawyers
Having been heavily involved in building practitioner representation in disciplinary jurisdictions in Victoria, ACT and NSW for over 20 years the firm has learnt a thing or two about what works as an advocate and what does not. Here are some pointers:-
You must use a lawyer that is an expert in the field of practitioner misconduct. It could well be a mistake to brief a construction lawyer that has no experience in the intricacies of misconduct law.
Misconduct law even within a construction dispute context is a different paradigm to conventional litigation; it shares attributes with the criminal law, yet is not a criminal jurisdiction. If the VBA wishes to criminally prosecute a practitioner, the VBA needs to file a charge in the Magistrates Court or have the matter dealt with by a relevant criminal jurisdiction of a Court (See e.g. Section 178(d)).
Under Part 11 of the Building Act 1993 (VIC), the VBA is empowered to take a range of measures. The measures that can be taken by the VBA include a fine (limited to 150 penalty units for a natural person, or 750 penalty units for a body corporate), a reprimand, an undertaking, a direction for more education, suspension or cancellation.
It follows that one should not underestimate the potential for unintended consequences, so it is prudent to brief an expert in the professional misconduct area. Even better an advocate that can straddle both construction law and professional misconduct. It is a false economy to brief someone out of their depth who does not have the dual ring craft for misconduct and construction law advocacy.
Use a lawyer who is forthright and who does not pull any punches with you. It follows that the lawyer might not always tell you what you want to hear. If his or her advice can be reconciled with what you want to hear then that is well and good. But if it cannot then you should face up to the position and own the advice proffered.
The reality is that a large proportion of the matters that are investigated will end up being prosecuted and are in circumstances where the respondent is guilty. The lawyer must be able to figure out whether guilt is a fact or whether there are sound defences. However, if evidence of guilt is irrefutable then it could be misguided to contest it as this may jeopardise the ability of the advocate to generate a sound plea in mitigation.
Potential respondents should avail themselves to access to legal representation once they are subjected to investigation. The reason for this is that the investigatory process can be very intimidating and the prospective respondent could well find themselves out of their depth when dealing with a context that is both novel and unfamiliar to them. There can be a fine line between a duty of cooperation and self-incrimination and legal practitioners skilled in this arena will be able to provide sound legal insights on point.
Many practitioners advise their clients that as soon as they receive a phone call from an investigator or an impromptu site visit to call their lawyers immediately. Sometimes the lawyers might suggest there is merit with the lawyer presiding at the interview but in other instances may request the investigator questions in writing to afford the respondent the time and opportunity to properly consider the responses. Rushed and panicked responses can generate inaccuracies and unintended consequences.
The first thing one must do when faced with a complaint is to carry out a realistic assessment, with one’s legal advisor, of what allegations can be contested (i.e. a ‘not guilty’ plea) and those that should not be contested but where a plea in mitigation can be presented. This ‘plea’ will offer a full explanation of the conduct from the practitioner’s perspective, with the aim of minimising any penalty as far as possible.
One of the golden rules is “avoid contesting the incontestable”. Avoid running a defence based on a denial of liability if the denial is misconceived. “Fess up” and mitigate. When preparing a plea, have regard to the following:-
Be totally on top of the facts and the law. Cite the cases that most comfortably resonate with the facts applicable to my client’s predicament.
Impress upon the decision maker that the client is contrite and regretful, has learnt a lesson, and won’t do it again. Also encourage the client to instruct with regards to what has been learnt, so to inform the decision maker why the conduct will not happen again, and why it was aberrational. Documentary proof of changes to practice, e.g. a policy manual or detailed checklist, is also very helpful.
If it’s a one off and aberrational, say so. If there is no history of recidivism, bring that point home.
Make sure that the client has fresh professional references that attest to the client’s good character and make sure that the references are from peers of good repute.
Giving respect to decision makers is critical; be they a judge, a tribunal member or a peer. Remember the decision maker has the power, not you, and not your client. Never forget that for a second. One sees on some occasions witnessed advocates and or their clients that do not afford an appropriate level of respect; such disposition has serious limitations.
Furthermore, it pays to be courteous to one’s opponent as this is conducive to the building of professional rapport amongst advocates which makes the task of negotiation much easier. It is not unusual for prosecutors to say that the respondent has been very cooperative and this can be one of the considerations that the decision maker has regard to prior to the conclusion of their deliberations and handing down of censure.
One of the most common censures is the handing down of a fine. It is important to be on top of the client’s financial position and if the client has dependants, mortgages and the like, then one should with the client’s permission, impress upon the decision maker that a high fine may not be commensurate with the gravity of the offence and could have a very deleterious impact upon the respondent.
Lovegrove & Cotton: Leaders in building practitioner representation
Lovegrove & Cotton are experts in construction law and building practitioner representation in Melbourne, Sydney, the ACT and Queensland. Professor Kim Lovegrove MSE RML is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for over fifteen years and has established leading precedence in a number of 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.