Pleas In Mitigation In Building Practitioner Misconduct Cases
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
December 2014
When a building practitioner elects to not contest a misconduct allegation, that is not the end of the matter, because the practitioner can then present to a tribunal what is called a “plea in mitigation”. This is not about arguing guilt versus innocence, rather this is all about obtaining the best possible outcome for the building practitioner on the matter of penalty.
Often times people can be too caught up in the argument over whether there is guilt or innocence because, particularly where there are several different charges involved, the demarcation between guilt versus innocence on any one specific charge may not make all that much difference. When a penalty is handed down by the tribunal it is usually a sentence given as a global package taking all the proven allegations into account.
Any court or tribunal that must decide whether or not a practitioner is guilty of a professional misconduct charge should however be mindful of the grave consequences for that person’s reputation and standing, and other side effects such as increased insurance premiums or even the rejection of insurance claims. When taking this into account, the trier of fact needs to be ‘reasonably satisfied’ that the allegation has been proven against the practitioner. Also, given that a guilty verdict is an adverse disciplinary finding that goes to reputation, something more than just a professional error on one occasion needs to be established.
Any professional misconduct advocate worth their salt needs to look at the ‘big picture’ and assess what is in the best interests of the individual building practitioner. A common law principle is that those who admit a mistake and ‘fess up’ would normally be entitled to an automatic discount on the final penalty, when compared to the practitioner who steadfastly defends the charge but then is found guilty regardless. This is the same principle that applies in the police court with criminal cases, of course.
There are public policy reasons why this should be so (to do with the swift administration of justice) but it is also seen as a sign of remorse, contrition and even of a determination to put things right in future.
As disciplinary tribunals or courts by their very nature are public policy oriented, they tend to be conservative in matters that could affect consumers or attract negative media publicity on behalf of consumers. They therefore tend to be more likely to decide on a guilty verdict where the prospects of a successful defence are only 50/50 (even when taking into account that the prosecutor must show a charge is proven to the reasonable satisfaction of the tribunal).
For this reason, a good legal advocate in misconduct law will not encourage speculative or uncertain defences and will instead advise that confession and plea in mitigation is to be preferred.
Once an election is made to ‘not contest’ an allegation then the practitioner is then entitled to present a plea in mitigation to the trier of fact, before any penalty is decided. This can be presented by the practitioner themselves, however a legal advocate is to be preferred as they will be more skilled in knowing what ingredients to include in the plea and in hitting the right notes.
The recipe for a good plea in mitigation to minimse a penalty should include as many of the below factors as possible, if they can be maintained on the facts:
- The practitioner has been honest and co-operated with the investigation;
- The practitioner has admitted any genuine errors and tried to put things right on being alerted to a problem;
- A full explanation of the conduct that led to the charge being brought, including any challenges to the prosecutor’s statement of facts and any relevant conduct of third parties that contributed
to a situation; - The practitioner has a clean record and has not been subject to any similar investigations or findings before;
- The practitioner has remorse or regret for what occurred and is determined to avoid a repeat of the occurrence;
- Steps have been taken or policies put in place by the practitioner to avoid a recurrence (this is particularly important as tribunals are usually very interested in what will be done in future to
avoid a repeat, given the primary objective is to protect the public); - There is no evidence of dishonesty or pecuniary gain to the practitioner as a result of the conduct;
- This a one off matter and not part of a systemic course of conduct, ie it is an aberration;
- Good reliable character references from at least 2 or 3 letter writers who have known the person in business for a reasonable period of time, and that can attest to their reliability, honesty,
attention to detail etc.
The demeanour of the person at the hearing itself is also important, and even such matters as the choice of formal attire can make a difference. Furthermore, the advocate should ensure they show appropriate deference to the tribunal (as they have all the power) and even such matters as well timed humour or levity can assist the tribunal to ‘like your team’, so to speak.
You should never forget that if you are trying to convince a tribunal or court that a lesser penalty or some other solution is appropriate, that all the right notes are struck not only by the advocate at the hearing but also the practitioner and the character referees.
On one occasion the writer appeared before a building practitioner misconduct hearing where the practitioner requested the right to speak, and proceeded to argue that a conflict of interest charge did not properly give recognition to the fact the practitioner was just trying to help the owner. This line of reasoning had to be halted as it was not impressing the Board, given that it showed a lack of appreciation of the policies against conflict of interest.
On another occasion a professional character reference had to be rewritten because the character referee made mention that the building surveyor was easy to work with for a builder / developer and was always co-operative, expediting approvals as quickly and efficiently as possible. Again, this was the opposite impression that needed to be created given that a building surveyor must be seen to be diligent and meticulous in assessing works against building regulations.
For more information or advice in relation to your rights and responsibilities as a building practitioner in Australia, you should not hesitate to seek expert legal advice from a construction lawyer well versed in practitioner advocacy.
By Justin Cotton, Partner
Lovegrove Smith & Cotton
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© Lovegrove Smith & Cotton 2014
