Lovegrove Smith & Cotton
Construction Law & Planning Law Weekly Bulletin
Monday 01 September 2014
Special Announcement: Justin Cotton’s 10 Year Anniversary
Justin started in this practice twelve years ago in 2002. Although he had a brief two year chapter at another law firm, he returned and was made a partner. Save for Kim Lovegrove, he is the longest standing member of the firm. Within that period of time he has “morphed” into one of Australia’s top construction lawyers and is probably the leading building practitioner advocate in the country. He is also an absolute pleasure with whom to work and integral to the fabric and definition of our law firm. Well done Justin and to use Kiwi vernacular “keep on scoring tries”!
Special Edition: Practitioner Licensing, Professional and Practitioner Misconduct
This week’s Lovegrove Smith & Cotton Construction & Planning Law Bulletin is a special edition on the area of practitioner misconduct and occupational licensing. The firm has considerable expertise in this area of the law having represented building practitioners and building practitioners in occupational and practitioner registration matters for over 25 years. We have a plethora of articles that will assist practitioners in both dealing with practitioner registration matters and more importantly, preventing misconduct complaints from occurring. Many of our articles in this area have been written by none other than Justin Cotton, Partner & Head of Practitioner Advocacy.
The Critical Ingredients of Mitigation in Building Practitioner Misconduct Matters (NSW and Australian Readership) By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
The key to resolving misconduct investigations is not always about denying every allegation at every cost. Justin Cotton, partner and head of practitioner advocacy, talks about the broad based strategy that must be used, dispassionately, when trying to resolve practitioner misconduct inquiries in the best possible fashion for the building practitioner.
Blow the Whistle on the Whistle Blower: Taking Action Against Vexatious Complainants (Victorian Readership)By Peter Micevski, construction and planning solicitor, Lovegrove Smith & Cotton
In Victoria, there is no limit on the number of complaints a person may make to the Building Practitioners Board about the work or conduct of a registered building practitioner. Sometimes, the outcome of the complaint is dismissed through a lack of evidence, or no further action is taken due to the breaches being minor. Unfortunately for the registered building practitioner they ordinarily incur legal costs and suffer stress and worry. In this article Peter Micevski outlines some avenues for redress against vexatious complainants.
The 4 Minute Film – Doing a Plea of Mitigation (Australian, New Zealand and International Viewership) By Conjoint Professor Kim Lovegrove FAIB
A great many subscribers who receive our e-bulletins are building practitioners in New Zealand and Australia and they will come under the circumspect of various practitioner registration bodies. Unfortunately there will always be those people who will slip up and “desert their post” from time to time, in which case they will be called upon to account for their actions before the Building Practitioners Boards. Kim provides a synopsis of the most important elements of an effective plea in mitigation, which has already had 3,042 views. He is also co-author of the book Disciplinary Hearings and Advocacy, and has been a prosecutor, defence counsel and a chair of a disciplinary jurisdiction.
Practitioner Misconduct Inquiries, Due Process and ‘Double Jeopardy’ (Australian Readership) By Ms. Blaise Alexander, Solicitor, Property, Construction and Planning Law, Lovegrove Smith & Cotton
Imagine a scenario where you have faced allegations of unprofessional conduct, you pled guilty to some, and made a plea in mitigation. You have paid the fine and served a suspension and the matter behind you, only to have the matter flare up again a couple of years down the track! Blaise Alexander discusses procedural fairness and double jeopardy when there are further allegations against a practitioner.
The Recipe – A Plea in Mitigation (International Readership) By Jarrod Gutsa, Construction and Planning Solicitor, Lovegrove Smith & Cotton
“If there is a prima facie case in the prosecutor’s favour and the evidence is overwhelming and irrefutable, and of course if [one] knows that he/she has transgressed, then it would be difficult to identify any mileage in contesting the matter.” In this type of situation, one needs to come to terms with what has occurred, accept it, and then consider how to mitigate. Jarrod Gutsa, has written an article the describes some of the essential elements in a plea of mitigation.
Professional Misconduct – what does that mean in Victoria for Building Practitioners? (Victorian Readership)By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Planning Lawyers
There has been a fairly active complaint inquiry process in regard to building practitioners in Victoria, just as there has been in NSW. Where there is a difference between the two States, is the level of prescription of what is and what is not conduct that crosses the line, and how the line is described. Justin Cotton, Partner and head of practitioner advocacy examines the question of whether this is this the correct balance or wheter more guidance to the building fraternity be helpful.
Don’t get stung! Understanding Building Offences and Penalties in Victoria (Victorian Readership) By Peter Micevski, construction and planning solicitor, Lovegrove Smith & Cotton
The Building Act 1993 (“the Act”) sets the maximum penalties that apply to persons found guilty of building and plumbing offences in Victoria. In 2010, the Building Amendment Act 2010 dramatically increased the maximum penalties for certain building and plumbing offences. Some of these are listed in this article by Peter Micevski.
Professional Misconduct… Guilty or Not Guilty? (Victorian Readership) By Ms. Blaise Alexander, Solicitor, Property, Construction and Planning Law, Lovegrove Smith & Cotton
In every profession mistakes will be made, and not all errors should be considered incompetence or professional misconduct. However, where an allegation involves a prima facie breach of the Act and/or regulations, a guilty plea can go towards mitigating the sanctions imposed by the regulatory body. Blaise Alexander explores the issue of professional misconduct in the construction industry.
Building Professionals Take Note: Successful Appeal of a Building Misconduct Finding (Australian Readership) By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
Justin Cotton, partner and head of practitioner advocacy, examines a successful appeal by a building practitioner against a misconduct finding. The lesson to be learned in a general sense is that sometimes it is more than just the principle or the economics of a matter, a decision can have ramifications for the entire industry practice.
Lovegrove Smith & Cotton’s E-Library is a free online resource of articles, which puts a wealth of information at your fingertips. The articles in the E- Library have been written by lawyers and a number of them have been published in the Australian, The Age and the Herald Sun. Some of the articles date back to the 1990’s.
