Blow The Whistle On The Whistle Blower: Taking Action Against Vexatious Complainants
By Peter Micevski, Lovegrove & Cotton – Construction and Planning Lawyers
In Victoria, if you have a complaint about a registered building practitioner, the first course of action is to discuss with the building practitioner, ordinarily either the builder or the relevant building surveyor. Unfortunately in practice, most people jump the gun and seek the assistance from the Victorian Building Authority (“the VBA”). They do so by making a complaint in writing to the VBA relating to a registered practitioner’s professional conduct or ability to practice.
The VBA considers all complaints about registered building practitioners who may have breached the Building act 1993 (“the Act”). Where an investigation identifies breaches of legislation or professional conduct the matter is referred for Inquiry by the Building Practitioners Board (“the BPB”) or prosecution before a court by the VBA.
The outcome of a complaint may not always be the prosecution of a registered building practitioner i.e:
- the complaint may be dismissed through a lack of available evidence to support your allegations; and
- the complaint may be substantiated, but no further action is recommended due to extenuating circumstances such as the identification of only minor breaches of legislation.
The VBA investigation process may result in you having to obtain legal representation to defend the allegations against you, which will no doubt be costly to you, on top of the significant emotional stress and worry. To add to that, there is no limit on the number of complaints a person is entitled to make under the Act, and therefore the cost and emotional stress can be ongoing.
Should this be the case, your options to seek redress against the complainant for these costs are very limited (if any).
Under the tort of public misfeasance, where physical or economic harm has been caused by government actions or decisions, the injured person might seek compensation under a private law tort action. The tort of public misfeasance will only arise where there is bad faith or malice in government actions or decision-making. The following elements of the offence are often referred to:
- an invalid or unauthorized act;
- done maliciously;
- by a public officer;
- in the purported discharge of his of her public duty; and
- which causes loss or harm to the plaintiff.
Importantly, however, under s 180A of the Act, if a person lodges a complaint with the BPB or requests a VBA inquiry, that person is not liable in any way for any loss, damage, or injury suffered by another person by reason only of the lodging of that complaint or the requesting of the inquiry.
It is unknown how s 180A of the Act interplays with the tort of public misfeasance in this sense, however in our view we believe that the Act curtails any claims made against complainants for any loss and damage suffered by another person as a result of that complaint.
Despite that, potentially the registered building practitioner could accrue causes of action against the complainant, including:
- intentional and unjustifiable interference with trade and business;
- abuse of process; and
Occassionally we come across complainants making further disparaging and defaming comments about a registered building practitioner notwithstanding that their initial complaint was dismissed through a lack of evidence or otherwise.
It is generally very difficult for a registered building practitioner to demonstrate that the complainant was acting in a manner which was not consistent with its rights, and the complainant is generally in a strong position to argue that they were acting with genuine concern in relation to breaches of the Act. So counter actions by the practitioner may be “speculative” at best without hard evidence, not to mention costly and no guarantee of success.
Having said that, each case varies from another and therefore the merits of your case might not be known until you seek legal advice. Also defamation may be an option if you suffer harm to reputation that causally costs you business, and where the defamatory comment was untrue or not able to be justified by any findings against you or other ascertainable facts.
Where the complainant has made comments about the registered building practitioner regarding his/her work in a defamatory light, we write a letter to the complainant and put them on notice and request that they refrain from making such further comment. A legal letter of the like generally serves to stem the flow of “unfounded” complaints being made about a registered building practitioner.
Where the complainant is a government body i.e. the Municipal Building Surveyor (“the MBS”), if the MBS makes multiple “unfounded” complaints about you as a registered building practitioner, a possible avenue for redress is to make a complaint to the Ombudsman for intentional and unjustifiable interference with trade and business and/or abuse of process.
When you make a complaint to the Ombudsman about a government action or decision, the Ombudsman will look into it, tell you what occurred, and whether it was reasonable or unreasonable. The Ombudsman can also make recommendations to the government body involved about its conduct. Although the Ombudsman cannot recover your loss and damage, an Ombudsman complaint can be used to stem the flow of “unfounded” complaints against you from the government body.
As we always advise the registered building practitioners that we represent, the most prudent course of action is to carry out your functions “to the letter of the law” to ensure that there are no grounds for potential complaints being made against you by anyone.