Co-operation without Self Incrimination – Building Practitioner Inquiries
By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers
It is only human, when faced with complaints that you have breached professional duties, to defensively leap to the ramparts in your own cause. A charge of misconduct against any professional will usually feel deeply personal – it is a missile aimed at one’s reputation and professional life.
In rushing to your own defence, it often pays to heed the maxim: “speed kills”. This is because it is important to ensure you strike the right balance between co-operating with an Inquiry and ensuring that your responses are not only truthful but properly considered.
Prior to Inquiry hearings under section 179 of the Building Act 1993 it is customary for an investigator to seek to interview the building practitioner. These interviews can take place at such venues as cafes or the practitioner’s own office, and some practitioners have recounted that the interview seemed more like a “fire side chat” rather than an inquisition.
Nevertheless, it is certainly not uncommon for charges to later be sent to the practitioner with notification of an inquiry hearing date. This is not always expected by the practitioner, given their co-operation in attending the interview and the content of the discussion at the time.
Interviews with building practitioners are conducted either by a Victorian Building Authority (VBA) appointed investigator, or commonly an externally engaged investigator who then reports to the VBA. This investigator will have been appointed as a result of a complaint from a third party, be it a Council, a building owner or member of the public, or after a referral from the VBA or by VCAT.
If grounds for action under section 179 of the Act are established as a result of the record of interview, then a charge or charges (otherwise known as “allegations”) will be drafted and written notification will be sent to the practitioner. This notification will advise of the allegations and the facts said to support the allegations, including details of the section of the Building Act or Regulations that the practitioner is said to have breached.
At this point the practitioner will be asked whether they wish to contest (ie defend) or not contest (ie admit) the allegations, and to provide their factual submissions in reply to the complaint to the VBA. From 1 September 2016 the formal part of the Inquiry will be initiated by a show cause notice, rather than a notice of inquiry hearing.
It is understood that the VBA will then make a decision on the matter after the practitioner’s submissions in reply to the show cause notice are assessed. Any right of review or appeal of that decision will lie at the VCAT, whereupon one would be afforded a hearing.
In other words, from 1 September 2016 new inquiries commenced from that date onward take the form of a show cause notice, whereby the practitioner can provide within a certain time written submissions in reply to the contentions made against them. It is only for inquiries commenced by notice up to and including 30 August 2016 that will still be referred to Inquiry Hearings at the Building Practitioners Board – which is now winding down its activities.
Before the complaint even proceeds to the state of a show cause notice, the VBA must decide whether there are grounds for a formal Inquiry, and prior to that decision being made the practitioner will commonly be requested to attend an interview with an investigator.
Whether an Inquiry is commenced under the new or old disciplinary system, a practitioner is well advised to seek legal advice as soon as they are aware of a complaint and receive an invitation to attend an interview with the investigator. It is not widely understood, but attendance at such interviews is not compulsory.
In recent times we have instead requested, on behalf of a person facing allegations, that the investigator instead send the questions in writing so that responses can be properly considered, and a written response generated. Investigators accept that personal attendance is not compulsory and are generally amenable to the practitioner (perhaps with the help of their lawyer) sending in a written submission.
That is not to say that a practitioner should never personally attend an interview. This is a decision to be made on a case by case basis. Even if you do attend though, it is necessary for the investigator to give you “the warning” to advise you of your rights and that you do not need to respond to questions, but any answer you do give can be used at any later hearing.
It is also theoretically possible to have a legal representative present at such an interview, if you want that for your own guidance.
Remember also that a written record should be generated as a result of the interview. You may be asked to sign a record of the interview once it is available, and it is possible to elect not to do this.
Always carefully check a written record of the interview before signing it, as we have had situations where practitioners facing a later Inquiry hearing have not considered the transcript to be an accurate record of what they actually said. It goes without saying, that this can be awkward later on, and result in the prosecuting lawyer inferring that the responses at a hearing are ‘late inventions’.
Also, bear in mind that what one says at a stressful interview may not be fully reflective of the true situation. Some questions posed might require you to go over office documents or notes. If so, you should certainly do this rather than jump to an “off the cuff” answer, as you can always qualify your answers or decline to respond to certain questions.
In cases where there are several allegations, there will generally be at least one that is not contested. This will however allow you or your lawyer to ‘mitigate’, that is, to give the VBA a full explanation of all surrounding circumstances so that ‘your side of the story’ is still expressed, even though the overall charge might be admitted.
The aim of this explanation, and a recital of other factors in your favour (e.g. first offence, early ‘guilty’ plea, honest mistake, changes to one’s practices and systems etc) is of course to obtain the minimum possible penalty.
In situations where the practitioner has promptly co-operated with an investigation, and assisted third parties such as Councils or others to resolve issues on site, these are factors in favour of a practitioner. Certainly, one should never mislead or obstruct an investigation, as there is a general duty of co-operation and one must always be truthful. If you are obstructive or non-cooperative, this could crystallize a separate offence in itself.
However, this does not mean a person should be “hoist by their own petard” by making rash decisions about how to deal with misconduct allegations – for example by rushing into ill-considered responses to investigators.
In addition, an assessment needs to be made on how best to defend charges/allegations. If such charges are more likely than not going to be found proven on a technical basis, it makes more sense to ‘fess up’ to the imperfections and focus on what the practitioner has done or is doing to implement best practice from here on in. Line ball allegations are usually found proven against a practitioner because the Board or trier of fact will want to conclude that a registered practitioner has done everything “by the book” and with no grey areas. If you contest an allegation or charge that is later found proven, the practitioner would lose any automatic discount on penalty for not contesting the charge.
That may call for a less adversarial approach; rather a problem solving approach is preferable and this would be appreciated by the finder of fact when it hands down its ruling.
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 a Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and sobering jurisdiction, feel free to contact us via our website or by emailing firstname.lastname@example.org.