Building Practitioner Representation and Advocacy – Best Practice

Building Practitioner Representation and Advocacy – Best Practice

14 Feb 2018

By Justin Cotton, Director, Lovegrove & Cotton

Having been heavily involved in building practitioner representation in disciplinary jurisdictions in Victoria, ACT and NSW for more than 10 years I have learnt a thing or 2 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 is a huge mistake to brief a “garden variety” construction lawyer thinking that by virtue of him or her being a construction lawyer he or she is on top of misconduct law. Misconduct law is a totally different beast; it is “quasi criminal” and more akin to criminal law than civil law. Why? – Because it is a prosecution, and is, in a sense, a sentencing jurisdiction. The sentence can be a fine, a reprimand, an undertaking, a direction for more education, suspension or cancellation. Reputation is on the line as is one’s livelihood.

It follows that you should not underestimate the potential for unintended consequences, so the smart play is to brief an expert in the professional misconduct area. Mind you, the expert will cost, but that just comes with the territory. It is a false economy to brief someone out of their depth who does not have the ring craft for misconduct advocacy.

Use a lawyer who is candid 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 can’t 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 is a good defence. However, if guilt is a given then it is a folly to contest it, and prudence dictates that there must be a plea in mitigation.

A common trap that punters fall into concerns the early stages of investigation. The investigator rings up and politely advises that he or she wishes to arrange a meeting to discuss a complaint. The unsuspecting punter says albeit nervously: “OK, come on round and we will talk about it.” The investigator one must understand is highly skilled in interrogation and the art of questioning. Often the unsuspecting practitioner will talk too much and blurts out that which is material, that which is immaterial, that which is correct, and that which is wrong. Reason being, the respondent is nervous and off balance.

The prudent thing to do is this: As soon as you receive the phone call or the impromptu visit, say that you need to call your lawyer. Were you to ring me, I would say come into the office and give me the details of the investigator. I would then write to the investigating body and would inform them that we will fully cooperate but there will be no personal interviews, we would rather any questions be put in writing and then we will get written responses from the client. When you opt for this you are letting a professional deal with a professional and the requisite rigours will be brought to bear.

The first thing one must do when faced with a complaint, is to carry out a realistic assessment 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.

There are often Allegations made during an investigation where one has a reasonable chance of contesting the charge, and if so that is a viable option. That said, where the chances of a successful defence are only in the 50/50 realm, serious consideration needs to be given to ‘not contest’ and instead present a plea in mitigation, because misconduct tribunals tend to err on the side of caution when faced with ‘line ball’ Allegations. To err on the side of caution in this situation means focussing on the imperative of the protection of the public. Further to that, a guilty plea and then full explanation should attract an automatic ‘discount’ on any penalty.

The golden rule is “don’t contest the incontestable”. Do not run a cute defence based on a denial of liability if the denial is misconceived or prima facie hopeless. “Fess up” and mitigate. When I prepare a plea I have regard to the following:-

I am totally on top of the facts and the law. I cite the cases that most comfortably resonate with the facts applicable to my client’s predicament. There is a lot of law on point, I make sure that I am intimately au fait with it.

I impress upon the decision maker that my client is contrite and regretful, has learnt a lesson, and won’t do it again. I also encourage the client to instruct me with regards to what has been learnt, so that I can inform the decision maker why the conduct won’t happen again, and why it was aberrational. Documentary proof of changes to practice, eg a policy manual or detailed checklist, is also very helpful.

If it`s a one off and against the form guide I say it. If there is no recidivism I bring that point home.

I make sure that the client has fresh professional references that attest to the client`s bona fides and I make sure that the references are from peers of good repute. I once when acting for a building surveyor sighted a fresh reference that stated words to the effect that the building surveyor is helpful on site and issues the fastest building permits in the Western suburbs. Needless to say, references of this nature would be an “own goal” given the need to be thorough and meticulous about regulatory compliance.

Rapport with the decision makers is critical, be he or she 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. I have on some occasions witnessed advocates whom are arrogant, haughty and on occasion belittling of a panel member because he or she may not be legally qualified. This is a very dangerous disposition.

If per chance the decision maker is not legally qualified all the more reason to be very, very measured and careful, because you need to establish rapport to ensure that there is a “willing and enthusiastic ear”, that is prepared to hear the law and find it within him or herself to be temperate. Good manners and eloquence go a long way in this jurisdiction.

Further be courteous to your opponent. Sadly some prosecutors can have a “God complex” or adopt a scorched earth policy. They see it as their mandate to “pulverise” the respondent. It is best not to engage in a similar style, but to hold your ground and make sure to remain unflappable. Decision makers see through the filibuster and will ordinarily intervene and encourage restraint.

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.

In conclusion, I return to my first key maxim. Make sure you choose your advocate carefully and in this regard note that you will be very hard pressed finding anybody better than the building practitioner representation experts at Lovegrove & Cotton.

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. 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 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 enquiries@lclawyers.com.au.