Misconduct for Building Practitioners – what does that mean in Victoria?
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
All that anyone can ask for from decision makers and arbiters is that the outcome be based on known rules and consistency. If we have that, then we have a fully informed industry and the players within it are well appraised of where the boundaries lie.
In Victoria up until now there has been a fairly active complaint inquiry process in operation under section 179 of the Building Act 1993, that has been administered by the Building Practitioners Board (“BPB”). The BPB comes within the umbrella of the Victorian Building Authority (formerly, the Building Commission) and provides for an inquiry hearing before the BPB panel after an investigation has taken place.
In practice, most of the inquiry hearings (especially those that the author has been involved with as an advocate) have involved building surveyors and registered builders. The idea is that these practitioners should not be investigated over contractual breaches or civil disputes, after all many of these arguments will involve disputes between contracting parties. Rather, the inquiry should center on breaches of the legislation, including the Building Regulations (that incorporate by reference the Building Code of Australia).
One should not be hauled before the BPB on an accusation of having not followed a Practice Note. This is because a Practice Note is for industry guidance only and as an aid to best practice. Ideally they will reflect the legislation but they do not have the force of law. Because an inquiry or disciplinary hearing is really ‘quasi-criminal’ in nature, the allegations need to be based on some arguable breach of the laws that regulate the industry.
Up until now there have been some grey areas in knowing whether or not a building practitioner has crossed a line and is in breach of the Building Act, the Building Regulations or some other legislation. In Victoria, in comparison with NSW, there has not been the same concise formula of what constitutes such matters as:
- Unprofessional conduct or unsatisfactory conduct; and
- Conflict of interest.
Of course, it is arguable whether or not more regulatory definition is needed, as greater regulation can often be associated with more ‘red tape’ and cost imposed on an industry. The contrary perspective though is that more regulatory definition can provide better certainty to the key industry players and this in turn can lead to better building outcomes.
As it currently stands, there are 2 primary bases for misconduct inquiries against building practitioners in Victoria, and they are:
(i) Those matters set out in section 179(1) of the Building Act 1993, which includes where the practitioner has been guilty of “unprofessional conduct” or has done any of the other things specified in section 179(1) eg:
- Failed to comply with the Building Act or Building Regulations;
- Failed to comply with a direction of the Building Appeals Board or a direction of the Victorian Building Authority;
- Has been guilty of conduct characterized by a pattern of ‘gross negligence’ or ‘gross incompetence’ in a particular matter, that shows they are ‘not a fit and proper person to practice as a
- Has failed to carry out a recommendation contained in an inspector’s report under section 48 of the Domestic Building Contracts Act 1995;
- Has failed to comply with a reasonable direction of an insurer in regard to completion or rectification of defective building work;
- Has obtained his or her registration or any required insurance by fraud or misrepresentation;
and other matters as set out in section 179(1).
Also, there are the requirements of clause 1502 of the Building Regulations 2006, that read as follows:
“A registered building practitioner must –
- perform his or her work as a building practitioner in a competent manner and to a professional standard; and
- immediately inform the client in writing if a conflict of interest arises or appears likely to arise between his or her interest as a building practitioner and
that of his or her client; and
- receive remuneration for his or her services as a building practitioner solely by the professional fee or other benefits specified in the contract of engagement
or by the salary and other benefits payable by the building practitioner’s employer.”
By contrast, in NSW there is a structured definition of unsatisfactory professional conduct that sets out more precisely a list of matters that would come within that definition. There is also a ‘catch all’ element of conduct for a building surveyor (accredited certifier) that falls short of “the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier.”
There is then a 2 tiered definition to allow for a second higher grade of “professional misconduct” that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of that practitioner’s certificate of accreditation. There is no 2 tier system in Victoria currently that grades misconduct in this way, though it should be noted that these definitions only apply to accredited certifiers in NSW, not all building practitioners.
With upcoming wide ranging changes to the Building Act in the offing, and some changes due for implementation after 1 July this year, it may well be that the definitions for misconduct will be altered, and this will be the subject of a follow up article in coming weeks.
The author has appeared in inquiry hearings previously where the prosecution against the building practitioner has been based on the more general misconduct definitions of “unprofessional conduct” (section 179(1)(a) of the Act) or for a “failure to perform work as a building practitioner in a competent manner and to a professional standard”, in breach of clause 1502 of the Regulations. Indeed these appear to be the most common grounds for allegations.
This has then allowed latitude for BPB panels to find, for example, building surveyors guilty of misconduct for failing to respond in a timely way to queries or complaints from adjoining owners, even though there is no requirement in the Act or Regulation that requires building surveyors to do this.
For more information or advice in relation to your rights and responsibilities as a building practitioner in Victoria or in other States or Territories, you should not hesitate to seek expert legal advice from a construction lawyer well versed in practitioner advocacy.
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© Lovegrove Smith & Cotton 2014