Articles

By Justin Cotton, Director, and Jordan Davies, Senior Paralegal, Lovegrove & Cotton – Construction and Planning Lawyers

A range of professionals and practitioners in Australia are subject to oversight by regulators with powers to initiate disciplinary action against those professionals or practitioners. This is the case in fields such as the medical and legal professions, and it is also true for building practitioners in jurisdictions like Victoria pursuant to Part 11 of the Building Act 1993.

This article provides some essential points of general application for those who decide not to contest charges in relation to professional misconduct, and wish to enter a plea in mitigation.

For a building practitioner in Victoria this would ordinarily be after a show cause notice is issued pursuant to Section 182 of the Building Act 1993 in relation to proposed disciplinary action, and the practitioner and their advisors consider there to be little ground for contestation. In the case of a building practitioner, the practitioner may opt to provide written or oral representations to the VBA (see s 182A). For a building practitioner, it is at this stage where, with the guidance of a building practitioner advocate, a plea in mitigation might be considered.

Having extensive experience over the course of some decades in building disciplinary jurisdictions, including one of our lawyers being a past president of the former Victorian Building Practitioners Board, our firm is well aware of what works well for a plea in mitigation and what does not. The aim is to show the decision maker why disciplinary censure need not be severe in the particular case, mindful of the purpose of disciplinary action being to protect the public interest and the profession.

Strategy

Once a decision is made not to contest charges (for instance in written or oral representations to the VBA in response to the show cause notice), but to present a ‘plea in mitigation’, the correct strategy must be considered. Your legal advocate will of course need to go in fully prepared. It is not simply a case of “rolling over”, rather it is an exercise in creating a true picture of all the circumstances, in order to gain the most favourable sentence from the trier of fact. In fact, there is often no agreement between the defence and prosecution as to what the appropriate penalty would be, even where facts are admitted, so such hearings as these can still be adversarial in nature.

When one thinks of the word “whitewash”, a scene in a Mark Twain novel is brought to mind where the protagonist is punished by being made to whitewash many yards of a paling fence. It was an unhappy scene in the novel (at least at first), and whitewashing will likewise prove an unhappy experience if it is attempted in a court or tribunal. Do not attempt to sugar coat or whitewash the actions that occurred, or make a political statement. It may even create the impression in the mind of the judge or member that there is no genuine remorse and no real lessons learned.

With political statements, at best the judge or member will simply place such arguments in the ‘too hard basket’ as being outside of their jurisdiction. Such arguments may sometimes have real worth, but are best left out of a plea in mitigation in disciplinary proceedings.

The Plea in Mitigation

A good plea in mitigation should provide an explanation for any unprofessional conduct, and hopefully offer some mitigating circumstances. Such a plea will have many elements to it, and ideally, as many bases will be covered as possible.

If the situation is bleak for the client, and the facts overwhelming, it will be difficult and probably counterproductive to ‘whitewash’ the facts. Despite this, on many occasions you will be able to cite some form of chronology that explains why the practitioner acted the way they did, or detail circumstances that may have contributed to the conduct.

Examples of other contributing or ‘mitigating’ factors may be:

• where a ‘safety’ incident is contributed to by natural conditions such as freak weather
• where there were contributing factors outside of the practitioner’s control or caused by the involvement of other parties

In some cases, on a building site the prosecutor may be interested in prosecuting a number of parties. Once you obtain witness statements in a brief of evidence this will become clear, and this information may assist the defence lawyer in ‘plea bargaining’ with the prosecutor.

If for example a prosecuting authority is more interested in its action against a builder or owner in a development, it may agree to resolve the matter against other parties (such as a building surveyor or certifier) on the basis of undertakings as to future conduct and payment of costs. The possibilities for this will of course vary on a case by case basis. Whether such an outcome is possible will also of course depend on the overall conduct of the practitioner in all the circumstances.

At the outset, your lawyer should always obtain a full brief of evidence from the prosecutor’s lawyer to assess the situation. Even where the practitioner is pleading guilty, they may want to comment on statements made by other parties in witness statements.

A good plea in mitigation follows a formula and you should try to ‘tick’ as many boxes as possible. If you can tick most of the boxes in your submission you have normally done as much as you can do to extract the best decision from the court or tribunal.

The ingredients of the plea

So, here are the key ingredients of a strong plea in mitigation:

• Explanation of why the conduct occurred;
• Evidence (if possible) that any mistakes were honest/made in good faith
• Ownership and admission of guilt;
• Contrition and remorse;
• Changes to work practices/systems to avoid a repeat;
• Evidence of changes to behaviour/continuing education;
• References i.e. professional character references;
• The harm principal i.e. if there is no evidence of harm flowing from the conduct
• Financial limitations and distress;
• Demeanor and appearance;
• Sound prior record (i.e. is the conduct habitual or aberrational?)

Sometimes it will not be appropriate to touch on all of these elements, but you should tick as many of the boxes as you can. Where there is some wrongdoing admitted, then evidence of changes to work practices and any continuing education is invaluable.

Case law can sometimes be invoked e.g. Harm principal: Hans v Building Professions Board [2008] NSWADT 285. O’Connor J took significance from the fact that “no harm of any great significance resulted from the conduct of the respondent.”

References

Professional and personal references from reputed persons are generally paramount but some science needs to be applied. You should ensure the reference hits the right notes.

The reference should ideally:

• Describe the person, their qualifications / profession and how they know the practitioner;
• Describe their professional dealings with the practitioner;
• Speak favourably about the practitioner’s knowledge, professionalism, diligence, honesty etc;
• Advise the writer is aware of the complaints/allegations;
• Say something to the effect that the practitioner is remorseful about what occurred or that it is an aberration.

Avoid a reference that sends the wrong message. For example, if you are acting for a building surveyor charged with failing to adequately ensure plans are consistent, a reference that suggests the practitioner works briskly and speeds up the process would be unsuitable.

Aim for at least 2 or 3 key references from someone in the person’s industry. It goes without saying that these references should be as current and up-to-date as possible. As a back up, any references that also talk about character or contribution to the community are also helpful.

There will be the odd occasion where the practitioner will not be able, or will be unwilling, to obtain references. But these occasions will be the exception rather than the rule. If the practitioner has a sound record and there are other things you can say in their favour, there is no need to panic if it is not possible to obtain references, though they will certainly assist where provided.

Some important points from some cases

Law Society of NSW v McElvenny [2002] NSWADT 166: this looked at various factors that can be considered by a Tribunal to militate against the highest level sanction, e.g. such matters as: contrition, candour with an investigation and hearing, demeanor, and an otherwise sound record.

Craig v Medical Board of South Australia [2001] SASC 169: this establishes that the protection of the public is the key aim of disciplinary proceedings, not to punish a practitioner in a punitive sense. In some cases, the public might be better served in circumstances where a practitioner is allowed to continue practising, albeit with better education/systems.

Conclusion

As a building practitioner or professional person, if you are faced with a disciplinary proceeding or investigation, it is an extremely stressful time. It is pretty difficult not to take the process personally, and often a cool head is needed to strategise. Your lawyer will care about your plight, but will also have that level of detachment to make sound decisions. When faced with such an investigation or proceeding, you should seek experienced legal assistance as soon as possible.

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 enquiries@lclawyers.com.au.