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There was a time when misconduct complaints against building practitioners in Victoria would be heard via a Panel Hearing in person at the Building Practitioners Board (“the BPB”).  However, since around 2018 to 2019 the BPB is no longer operable and complaints when made about practitioners will instead be referred to what is called a “show cause” process.

Of course, there are no guarantees that the Victorian Building Authority will investigate a complaint about a builder, building surveyor, engineer or draftsperson for regulatory breach, as they may instead decide there is no basis for a finding or that the complaint instead concerns contractual disputes.  That said, if they do decide the complaint should be formally investigated, the Authority may elect to initiate a “show cause” process.

Instead of holding a formal hearing before a Panel (eg the BPB), the “show cause” system involves the Authority sending a written notice to the practitioner setting out the complaint / allegation items and stating whether each item is found proven, and the likely or foreshadowed penalty for each proven item.  Of course, the notice (referred to as a “show cause notice”) must also fully describe the factual grounds for any findings and refer to relevant documents, which should be forwarded to the practitioner in a brief of evidence.

Whether or not a charge is found proven should be based on the test in Briginshaw v Briginshaw, to the effect that the finder of fact should be “reasonably satisfied” that the charge is proven against the professional person.  This is a higher standard of proof than the usual civil stand of balance of probabilities (“more likely than not”) that applies to civil or contractual disputes.

The primary basis for the higher standard of proof in misconduct cases is the grave and significant ramifications on a professional person in terms of their career and their reputation, and their ability to earn a livelihood in their chosen vocation, should a finding of guilt prevail.

Based on the principles of “natural justice” and “procedural fairness”, a professional individual should be fully appraised of the case against them, being the grounds for any findings, the legal underpinning to substantiate a breach, and should be given access to all documents to support such findings.  Furthermore, the practitioner should be given sufficient time to provide a written or verbal explanation or defence to the conduct alleged.

The show cause notice will allow 28 days for the practitioner to provide a written reply and supporting documents, in order to potentially argue against any findings that charges are proven against the practitioner and/or to argue that any proposed penalty is excessive or disproportionate.

A practitioner faced with such a notice would be well advised to seek legal advice to assist in preparing the show cause reply, but of course it is not mandatory to do so.  In fact, if the practitioner so chose they would not need to give any reply at all, though if they did not do so then the Authority will proceed to make findings on both liability and penalty in the absence of any counter argument from the practitioner.

The show cause notice will set out whether or not each charge (as there are sometimes multiple charges / allegations) is proven against the practitioner, and also the intended penalty for each charge.  In terms of penalty, that can include anything from a reprimand only (at the lower scale), to a penalty fine, ordering a course of further education to be completed within a set time, or even a suspension of registration in more serious cases.   The most serious potential sanction is a permanent cancellation of registration.

Needless to say, suspension or cancellation of registration should be reserved for only the most serious of cases and generally are foreshadowed where:

• The offending is very grave and has caused harm or potential harm to members of the community, whether in terms of economic loss or personal injury;
• There has been gross negligence or reckless;
• There has been a pattern of serious conduct or negligence leading up to the current offence(s);
• There are elements of dishonesty or an attempt at pecuniary gain.

Of course, you would not need all of these elements to be present in order for a suspension or cancellation to follow, but in the absence of these elements the practitioner could mount an argument based on case law that any suspension or cancellation is disproportionate / unduly harsh.

Based on the decision in Craig v The Medical Board of South Australia, the purpose of the disciplinary process carried out by a registration body is not to “punish” the practitioner but to protect the community.  Therefore, any sanction should only be to the severity that is needed to protect the community and the goal should not be punitive.

That said, registration bodies commonly argue that a related goal of the disciplinary process is to maintain public confidence in the profession and industry, as well as the protection of the public.  Assuming that this is likely to be a correct position, then deterrence will play a part in the setting of penalties in misconduct matters, given that such findings are generally on the public record.

The practitioner should serve their written reply to the show cause notice within 28 days, or within such extended time that is agreed between the practitioner and the Authority.  In practice, it is not unusual for the Authority to agree on an extension for the reply submissions if a good explanation is given for the need for extra time.  Thereafter, and it may take some weeks, the Authority will consider the reply submissions on liability and penalty, and then make a final decision that is communicated to the practitioner with reasons.

One finds that the final show cause decision, after considering the practitioner’s submissions, may lead to a better outcome for that party – often in terms of a reduction in the cumulative penalty.  Sometimes a practitioner will be prepared to live with that outcome, but not always.

If the practitioner is dissatisfied with or disagrees with the findings on liability and/or penalty in a show cause decision, they have 28 days from receipt of that document to lodge an application for internal review at the Victorian Building Authority.  This application can be found online on the Authority’s website and does not attract a filing fee.  One can request a lawyer to complete the application form on behalf of the practitioner, and only a brief summary of the likely argument, and what the practitioner considers should be the findings on liability and penalty, needs to be included on the application form.

Once the application form is received by the Authority, it is incumbent on the VBA Internal Review unit to make a decision on the review within 28 days of receiving the application form.  In this respect, they will offer the practitioner the chance to attend an Internal Review meeting where the practitioner (or possibly their lawyer on their behalf) can make submissions on what the disciplinary decision should have been.  In practice we find that such conferences can last up to 1 hour, and that a lawyer will present the arguments on behalf of the practitioner, though the applicant themselves needs to be present and can answer questions and make comments throughout.

The Internal Review conferences are relatively informal and are recorded, with the option of providing further documents in support both prior to and in the days following the conference.  In practice, we find that they take place relatively promptly after the internal review application is lodged, due to the need for the Authority to make a decision within a narrow, defined timeframe.

If after the Internal Review the practitioner is still not satisfied, they have the option to appeal findings that some or all of the charges are proven (ie on liability) or to appeal findings on the level of sanction.  The basis for the latter may be that the Authority has not given sufficient weight to factors in mitigation of conduct or favourable factors (eg a change to professional conduct, an absence of prior misconduct) before making the decision.

Any such appeal would be an “external review” and it is lodged at the Victorian Civil & Administrative Tribunal (VCAT).  This would involve a significant uptick in legal fees given that one would probably need a lawyer to prepare the VCAT Application and preliminary submissions, and then appear at any directions hearing and mediation / compulsory conference.

Generally, a final Hearing (which could be 1-2 days, but may be longer) is held in the Administrative List at VCAT but a date would not be fixed until there has been at least one attempt at mediation between the parties.  Given the lengthy duration involved with the External Review process as opposed to the much quicker Internal Review, this in itself would lend itself to higher legal fees.  It is difficult to recover a practitioner’s legal fees even after a successful outcome at VCAT – as the Member may state that the practitioner bears some blame for the parties needing to be at the Tribunal even if the final outcome is more favourable to the applicant.

The timeframe to apply to VCAT for External Review of the Authority’s decision is 28 days from receipt of the Internal Review findings.  Therefore, there is no time to waste if a party wishes to pursue this route.  One main advantage of a VCAT review is that it is clear that this is a completely separate and independent forum, distinct from the VBA.

In the event that a building practitioner is faced with a show cause notice they would be well advised to seek prompt advice from a construction lawyer at an early opportunity so that the correct strategy in responding to the complaint is initiated front end.

By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers

This article is written for general information only and is not to be construed as a legal advice. If you require legal assistance, please contact Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.