What is Good Building Practitioner Advocacy?
By Lovegrove & Cotton – Construction and Planning Lawyers
Be it the Disciplinary jurisdiction in the VCAT, the Building Professions Board NSW or any other occupational licensing body for that matter, if as a result of an investigation you are prosecuted and compelled to appear before a disciplinary licensing body, your livelihood and reputation is at stake. The difference between moderate censure and severe censure sometimes boils down to the calibre of the advocacy. So let us look at what is laudable advocacy and compare it with counterproductive advocacy.
The most productive approach:
Take disciplinary censure very, very seriously; after all, your livelihood is at stake.
Do not be your own advocate – “only a fool has himself for a client.”
Choose your advocate very carefully. Get a lawyer who is an expert in disciplinary and occupational licensing advocacy, even if they are expensive. Alas, the best advocates are generally the most expensive advocates. It is a false economy to elect not to use the most revered in the field if this determines whether you keep your licence.
Get fresh on point references from people of good repute.
Once one is the subject of investigation, immediately reflect upon what went wrong. Get advice on how to effect systematic change to ensure that the cause of the professional problem is identified and cured. If one can give evidence that one has identified the problem that led to the professional failure and has put in place systems to ensure that it can ever happen again. Positive systemic change is one of the considerations that will be taken into account in mitigation submissions.
Be genuinely contrite and respectful.
If guilty, provided your solicitor or barrister sanctions this approach in their advocacy, fess up, admit the mistake, and do not fight the unwinnable point. Do not contest the incontestable. Nothing will alienate a decision-maker faster than arrogance and the running of obfuscational technical points, particularly when there is evidence of prima facie guilt.
Give evidence of financials and dependants, because if a fine is handed down, one’s financial status is often a relevant consideration with regards to the decision maker’s penalty disposition, particularly when deliberating upon the amount of the fine.
Prepare, prepare, prepare; do not underestimate the importance of meticulous preparation and being able to access advocates adept at same.
The approach to avoid:
In this jurisdiction, to state the obvious, the decision-maker is in the seat of power in that they can determine the severity of the censure – do not be arrogant in your disposition. This recommendation may seem somewhat trite because it would seem to be axiomatic that arrogance will be poorly perceived but the capacity for respondents to be arrogant has been observed more often than one would imagine. Petulance and irreverence, particularly where there is a serious case to answer, will not bode well.
Do not choose an advocate who likes taking esoteric or ‘obfuscational’ points.
Do not choose an advocate who does not specialise in professional misconduct advocacy.
One important reason for having an advocate who specialises and is highly experienced in practitioner advocacy is that they will know when to contest and when to plea. In “Disciplinary Hearings and Advocacy” co-authored by Kim Lovegrove and Sav Korica, this very observation was discussed [at pages 60-61]:-
“We have observed that advocates unfamiliar with the misconduct jurisdiction have a tendency to contest that which should not be contested. Maybe it is because many of them are litigators, and an admission of liability connotes defeat and loss; also as the concept of saying my client is guilty or was wrong is an anathema and somewhat frightening because it goes against the grain. They are prone to challenging allegations with arguments that are esoteric and not on point. Sometimes the strategy is to undermine and arbiter’s preoccupation with the evidence and the facts that clearly point to guilt. Alternatively, obfuscation or circular and evasive arguing is used in an endeavour to try and deflect the members’ on an allegation that is backed up by irrefutable evidence.
Members are often bamboozled about determining whether an advocate is contesting or mitigating. To give an example, Section 16 of the Victorian Building Act 1993 states that if you carry out the work without a building permit you are breaching the provision and you are liable for a fine, as the provision is a strict liability offence. We have observed some advocates in circumstances where there is unequivocal evidence of the breach, rather than pleading guilty to the breach and then providing reasons of mitigation, electing to contest the allegation on the basis that the respondent did not know of the provision or did not realise that building work required a building permit.
The advocate here is confusing arguments in mitigation with genuine arguments that can be used to defeat the allegation. Genuine argument to defeat the allegation would be the production of proof that makes it clear that the respondent had not carried out work without a building permit, rather than the articulation of reasons for the breaking of the law. The authors when presiding over hearings have sometimes been known to interrupt an advocate and comment along the following lines:
You are contesting all of the allegations yet what I am hearing in your line of submissions is tantamount to a plea in that you are providing justification for the errant conduct rather than disproving that the conduct occurred in the first place.
An advocate ‘on top of the game’, in circumstances where the evidence is compelling, will get instructions to admit guilt and produce arguments in mitigation with a view to attracting a temperate disposition on the part of the tribunal member.
If an advocate fails to understand the importance of a guilty plea in circumstances where the evidence against the practitioner is ‘irrefutable’, and instead chooses to deploy non-substantive and non-persuasive arguments in rebuttal, then the decision makers will be underwhelmed and an advocate must take cognisance of the inherent risks and dangers in doing so.
In an earlier passage Justice Kirby, in Cameron v The Queen, was quoted as saying that:
A plea of guilty is ordinarily a consideration to be taken into account in mitigation of punishment.
This is High Court authority. It follows that a lack of preparedness to enter a plea of guilt will be taken into account in mitigation and punishment. Furthermore, if there is a ‘full blown’ contest complemented by no admission of guilt, and it is left to the disciplinary body to determine by its own means whether guilty is the appropriate finding, the ability to raise arguments in mitigation such as “the transgression was a one-off incident, was out of character, could not occur again because of change in work processes”, may be lost forever. “
This passage in the book neatly outlines the importance of well-versed practitioner advocate who knows when to make a plea in mitigation and when it is appropriate to contest, as conventional adversarialism will not bode well for the practitioner.
With respect to the ingredients that make for a good plea in mitigation, click HERE to access a relevant extract from “Disciplinary Hearings and Advocacy”. To access the order form and brochure for “Disciplinary Hearings and Advocacy”, click HERE. And to find out more about our practitioner advocacy division, click HERE.
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 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 email@example.com.