Lovegrove and Cotton has represented building practitioners for nigh on 30 years in Victoria, NSW and the ACT. The founder Professor (adj) Kim Lovegrove co-authored the book Disciplinary Hearings and Advocacy. The book was written to demystify a complex and hybrid area of the law to assist advocates in this jurisdiction.

With that experience comes knowledge and insight into the ‘where with all’ as regards how to conduct oneself as a respondent in disciplinary investigations and hearings.

Top legal Advocacy

The first thing to point out is choice of legal representation, when one`s livelihood is at stake it is a false economy to look for discount legal representation, for if one attracts and adverse finding or at worst loses one`s licence the consequences are deleterious.

So one needs to engage advocates that are not only skilled in construction law but also intimately familiar with the hybrid and highly complex area of practitioner licensing advocacy; as a binary skill set is required – a familiarity with construction regulations and sometimes codes and what is often coined ‘quasi criminal’ law.

You see, even though practitioner misconduct law applies a civil law onus it operates like criminal law in that the disciplinary jurisdiction can:-

• Reprimand and admonish
• Fine
• Suspend
• Cancel ones livelihood
• Convict
• Further depending on the level of egregiousness the matter may be referred up the line to criminal jurisdiction.

So our first advice is to engage the best legal artisans in this area with the view to putting one`s best foot forward.

Requests for Interviews

In most investigations the investigator will request an in person interview. Many advocates in the area advise their clients to decline to be interviewed in person.

It is a fine line as it behoves potential respondents to cooperate but cooperation does not mean self incrimination.

A common recommendation that is made by the advocate is for the investigator to commit enquiry to writing to enable the respondent to have adequate and non pressured time to respond.

Investigators are very skilled in the discipline of examination and interview and interviewees often misconstrue a pleasant and affable demeanour on the part of the investigator as a lack of resolve on the part of the investigator to exact information that if poorly or incorrectly enunciated will be highly prejudicial.

Further laypersons are not well-versed with the machinations and patois of interviews, sometimes the interview will panic and on occasion run the risk of allowing words to be placed in one`s mouths, as it were.

Once answers are forthcoming and transcribed, whether they were well though through or not, they are much harder to redact.

Preparing for hearing

To Plea or Not to Plea

This is probably the most important consideration. The question of whether to plead guilty and mitigate or to contest.

It is important that the legal team advises one dispassionately from the outset to enable a well informed decision to be made and then it behoves the respondent to take their advice.

A lot of Building Act offences are strict liability offences. For instance if the allegation is that one carried out building work without a building permit, one either did or do not.

• If the answer is affirmative that will translate into a strict liability for the offence
• The reasons why one carried out work with out a building permit may go to mitigation

If one issued a building permit after work had started it will be a yes or no answer.

• And if the answer is a yes then that too will in all likelihood mean guilt.
• The reasons why one issued same may go to mitigation

The important thing your legal advisers will no doubt say is don’t obfuscate, don’t skirt around or deny a prima facie incontrovertible fact.

The telling of the truth is important mindful of the Shakespearian caution ‘oh what a tangled web we weave, if we seek to deceive’.

Further the telling of a mistruth or a lie will have an adverse bearing upon the outcome. A finding of misconduct characterised by the telling of truth with accoutrements of contrition and remorse will culminate in a far better outcome than a finding of misconduct marred by lie.

Appreciate that misconduct jurisprudence is very different to conventional civil or tortious jurisprudence. It is not litigation and there will be little virtue in a denial if the facts and the weight of evidence clearly impute guilt.

An admission of guilt often goes against the grain as for many it is scary to admit, but your legal advisers are likely to say that if you don`t admit guilt, where the evidence of guilt is compelling, the case will be contested, will run to conclusion and one may have forfeited one`s ability to mitigate.

But these decisions will be a matter to resolve with one`s legal team.

Advocacy at hearing for a Plea

Turn up on time, be respectfully dressed and deferential in demeanour.

Let your advocate do the talking, that’s their remit and don’t interrupt.

Ensure that there are available fresh written references provided by peers of good repute and or people of good standing.

The reference narrative must be appropriate, years ago we acted for one certifier who instructed us to enter a plea and one of the references stated that he issued the fastest permits in the West. Mindful of the fact that the respondent had taken on board too many new starts, we said that is not a terribly useful reference.

Provide the legal team with evidence of financials, dependants and outgoings for in the event of a fine being handed down the decision maker will typically have regard to the financial status of the respondent.

Ensure that well before the hearing systems have been put in place that are designed to remove the risk of repeated error and transgression.

Give counsel written evidence of the system re-engineering as this goes to genuine contrition. It is one thing to say I`m sorry, I won`t do it again. It is another thing to say I`m sorry and it will not happen again because I have put in mechanisms to ensure that it won`t happen again. This will provide the decision maker with far more persuasive evidence of what is tantamount to professional cultural change.

The firm has sometimes acted for respondents that stated that they had dropped the ball as they had too many permits on the go. It would then follow that the respondent would be best advised to give evidence that they have cut back on new starts, taken on less jobs or alternatively had taken on extra staff. Evidence should be adduced to corroborate that representation.

It is one thing to say it, it is another thing to prove it.

Contested Hearings

If the legal team is convinced that there is a ‘no case to answer’ then this will culminate in a formal hearing that may go for some days.

Ensure that an advocate is retained with the above mentioned skill sets and most importantly well versed in court or tribunal appearances in this hybrid jurisdiction.

The writers have observed from time to time advocates that display belligerence. This is the last type of jurisdiction to entertain the jaundicing of the Benches disposition.

Reason being that the level of censure is ultimately discretional, it`s not governed by a scale. It`s not like if one`s over .05 mandatory loss of licence. It is more like if one has transgressed, one may lose one`s licence and that which determines whether one does or does not are the below considerations:

• The level of egregiousness
• All of the facts and circumstances
• The strength of the evidence or lack of
• The demeanour of the respondent
• The ability of the advocate
• The question of whether one has ‘priors’ ie the question of whether one is a recidivist
• All of the above

Conclusion and key take-outs

• This is a specialist area of the law so find lawyers that have experience that is bespoke to practitioner licencing advocacy.
• Get the very best as livelihood is on the line.
• Above all, don’t fly solo ie self – represent, be mindful of the proverb ‘A man who is his own lawyer has a fool for a client’.
• It never ceases to amaze us when clients come to us after the event, with the lament that they didn’t think they needed legal representation, only to come a mighty cropper. Very sad.

Disclaimer

This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact construction law firm. Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented property owners, builders, building surveyors, and building practitioners in Melbourne, Canberra, Sydney and Queensland. Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute. If you wish to engage the firm, feel free to contact us via our website, by emailing enquiries@lclawyers.com.au, or via phone at (03) 9600 4077.

This paper is written by Lovegrove and Cotton Lawyers for a seminar hosted by the BSIG  on the 12^th of July 2022