Articles

This excerpt is drawn from Disciplinary Hearings and Advocacy, a book co-authored by Adjunct Professor Kim Lovegrove and barrister Sava Korica, and published by Hybrid Publishers. 

The book delves into the intricacies of professional discipline within the building industry, offering insights into the serious repercussions of censure for practitioners. With a focus on the distinction between professional misconduct and unsatisfactory conduct, as well as the varying levels of disciplinary action – from higher-end censure, which may involve suspension or license cancellation, to lower-end penalties such as fines and reprimands – this passage sheds light on the thresholds, consequences, and decision-making considerations that shape disciplinary hearings.

For building practitioners, understanding these distinctions is crucial in navigating the licensing landscape, where both reputation and livelihood are often on the line. The authors examine the significant standards by which misconduct is judged, including the objective seriousness of conduct, the impact on public safety, and the practitioner’s disposition in disciplinary hearings. 

Professional Misconduct – “Higher Level Censure”

“Higher level censure in this particular jurisdiction culminates in suspension or cancellation of the license to practise. For a tribunal to do this it takes full cognisance of the dire consequences, i.e. the destruction of professional reputation and loss of what would generally be the primary source of income. 

There are also related and consequential areas of collateral damage. Most professionals are insured, and if they are suspended from practice their insurance can be jeopardised. Even a temporary suspension can generate serious “reverberational” detriment because a practitioner intent on renewing an annual policy has to disclose the suspension to the insurer as it is a material consideration that will influence the risk profile of the insured. The best case scenario for the practitioner would be an increase in insurance premiums, the worst case scenario would be the refusal by the insurer to reinsure, in which case the practitioner would be ineligible for re-registration after the period of suspension expires.

If one looks at conduct that culminates in serious censure (i.e. professional misconduct) vis-à-vis conduct that culminates in lower end disciplinary censure (i.e. unsatisfactory professional conduct) the sorts of threshold ingredients that the tribunals and Courts and in some instances Acts of Parliament seem to have come up with include:

• a high degree of objective seriousness conducive to significant harm to the public;
• conduct that is considered to be disgraceful by practitioners of good repute and competency;
• conduct that is heinous or dishonourable;
• conduct that is wilful or reckless;
• conduct that is of a sufficient serious nature to justify suspension;
• grave conduct that poses significant harm to the community.

Unsatisfactory Conduct – “Lower End Censure”

Much has been written about the tests or thresholds that are required to constitute professional misconduct, i.e. higher level censure, and there are many cases that amplify the tests. Unsatisfactory conduct, i.e. conduct that attracts lower end censure connotes that which does not “tip into” the professional misconduct arena. The types of penalties that characterise this echelon are fines, reprimands, undertakings to abstain, undertakings to do certain things and sometimes the affording of compensatory redress.

Just because a practitioner engages in conduct that attracts lower end censure such as a fine rather than higher end censure, this by no means means that the magnitude of the censure is trivialised, but rather “provides a measure of the seriousness of an offence … a signal to other practitioners as to how seriously particular conduct is viewed”. 

When one looks at conduct that contravenes the lower censure jurisdiction of disciplinary offences such as the unsatisfactory conduct band, regard has to be had to the notion that “mere negligence, even of a serious character, will not suffice”  as satisfying the threshold required to suspend or cancel a practitioner’s registration. For there to be activity that would justify suspension it has to be most serious. Conversely for there to be activity that comes within the umbrella of something less than professional misconduct, i.e. unsatisfactory professional conduct, the level of seriousness or perniciousness would have the elements of something that is far less harmful to the community.

If the leaning of the decision-maker is towards lower end censure, i.e. the terrain of fines, reprimands and undertakings, the decision-maker would have to be satisfied that the conduct was not sufficiently serious to require cancellation or suspension. That would be the starting point. A great many considerations would come into play, and the most paramount consideration would be the forming of the view that the conduct did not pose sufficient risk to the community.

Another consideration would be that the act, error or omission may be an isolated act and not in keeping with the character or professional form guide of the practitioner. Professionals do make mistakes, it is the nature and the magnitude of this mistake coupled with the way the mistake is dealt with and the harm or lack of harm occasioned by it that would determine whether the mistake finds its way to a disciplinary jurisdiction.

It is very important for disciplinary jurisdictions to be careful not to fall into the trap of thinking that because someone is incompetent, serious disciplinary censure necessarily follows. Nevertheless if there is a pattern of repeated and systematic acts of incompetence involving to borrow criminal vernacular, mens rea, then these ingredients may tip incompetency into something more prejudicial to the community than an isolated “one off” act where no real harm crystallised.

The disposition of the respondent practitioner is also a relevant consideration. The most difficult cases involve borderline matters where the conduct is such that it lies at the cusp of that which requires higher end censure, i.e. suspension rather than fine and reprimand. The disposition of the respondent could prove to be the telling factor. If the respondent establishes that he or she is seized with the gravity of the act and is able to convince the decision-maker that on the overwhelming balance of probabilities the act would not occur again then the decision-maker may prove to be more benevolent. 

Conversely if there be no evidence of contrition, remorse and ownership of the transgression then the decision-maker may form the view that in the absence of any appreciation of gravitas or indication of a preparedness to change, the community could only be protected by the respondent’s removal from the profession.

To use the well-worn truism, every case will have to be judged according to its own set of circumstances and facts”.

Save for the introduction the extract is reproduced verbatim from the book “Disciplinary Hearings and Advocacy,” co-authored by Adjunct Professor Kim Lovegrove and Victorian barrister Sav Korica. Specific page numbers referenced in the footnotes.

Disclaimer

This is not legal advice and is general in nature only, for legal advice consult a lawyer that has expertise in the area of building practitioner, licensing and practitioner registration and professional advocacy.

Lovegrove & Cotton have practised in this jurisdiction: –

For the better part of 30 years and personnel within the firm have at various times been deployed as prosecutors and in more recent years practitioners defence counsel and decision makers.