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It is a truth seldom grasped in building misconduct inquiries across all states: the goal should really not be all about denying liability at any cost.

We have often surmised that this is why litigation lawyers are not best suited to misconduct advocacy, as their golden rule seems to be more akin to that of the insurer; that is to deny liability at all costs, even in the face of clear evidence.

Misconduct charges are in relation to breaches of building legislation including laws and regulations. They should not be about disputed contractual claims between parties to a contract.

Firstly, the practitioner needs to decide whether to contest any of the charges or “allegations” and if so which and on what grounds. The alternative is to not contest charges and instead present a “plea in mitigation” to try to get the lightest possible sanction.

We often say to practitioners trying to defend ‘line ball’ charges that a disciplinary body will tend to err on the side of caution, due to the public imperative to protect the community. Charges should not be contested for speculative or purely political reasons.

That is not to say that the trier of fact will not give you a fair hearing in regard to disputes over liability, but you should have a good prospect of success on any charges that are to be contested. (This does not necessarily mean certainty, as these matters are seldom certain).

Mitigating factors

What is always underestimated is the extent to which the trier of fact in misconduct hearings is usually very keen to hear about:

• Any changes to professional practice or greater understanding as a result of any errors;
• Any contrition or remorse for anything that has occurred;
• A genuine recognition that a wrong has occurred and a commitment to change;
• A good prior track record to demonstrate any wrong conduct is an aberration rather than a pattern.

A plea in mitigation does not necessarily mean that the practitioner accepts all that is alleged. It is not a case of “waving the white flag”. Instead, the practitioner can take issue in the plea in mitigation with regard to some of the facts alleged by the prosecutor, even if they still admit that the legal ingredients of the charge have been established.

In the plea, the practitioner can also provide a detailed explanation of why they made certain decisions or acted in a certain way (a factual explanation). There will often be extenuating circumstances and sometimes the actions or omissions of third parties should be taken into account.

Possible Discounted Penalties for Pleas in Mitigation

The practitioner should be entitled to an automatic discount on any penalty handed down if they do not contest the charge.  This is on the basis of High Court authority in the criminal case of Cameron v The Queen.

The party that does not contest a charge and instead presents a plea in mitigation to get the lightest possible sentence, can expect a lighter penalty than a party that contests but the charge is found proven anyway. If there is anything the practitioner wishes to say about the penalty then that needs to be a key focus of the case presented.

Invariably there will be at least some charges that are not contested, even if the majority of charges are challenged.  Similarly, an appeal might be against a finding of guilt on some charges but about the severity of the penalty on others.

Where there is anything at all to say on the severity of the penalty that is to be handed down, the practitioner needs to be willing to talk about such matters as:

• The size and nature of their professional practice including the number and nature of projects they are responsible for;
• What their systems were at the time of any conduct complained of;
• What they have learned about any errors committed;
• What steps have been taken by the practitioner to rectify any harm that has occurred;
• What procedures or processes have been implemented to make it highly unlikely the conduct will re-occur.

What is Involved in a Plea for Mitigation?

A plea in mitigation takes some craft and ideally should be presented by a legal advocate. It should follow a formula of key ingredients.

Helpful character references from at least 2-3 people who have known the practitioner for at least several years, and can attest to their knowledge, integrity, and competence should be obtained prior to hearing. The references need to be recent and should mention briefly that the writer is aware that the reference is needed for a disciplinary proceeding.

It is also extremely helpful to be able to hand up an updated or revised policy or quality assurance manual that serves to address the kind of errors that may have arisen. You may well be asked by the trier of fact or the investigator whether the manual is a recent invention the week before the hearing and is simply ‘window dressing’. Therefore, it helps if you can answer truthfully that the procedures have already been implemented and there is a commitment to practice them.

There is case law in NSW (at the Administrative Decisions Tribunal level) to the effect that not every professional error should necessarily lead to an “adverse disciplinary finding”:

“While clause 145 [of the EP&A Regulation (NSW)] clearly imposes a professional obligation, it does not, in our opinion, follow that any breach of a professional obligation should result in an adverse disciplinary finding.” [Paragraph 41]

“It is a familiar aspect of the law relating to professional discipline that a distinction is drawn between incompetent conduct that, though careless and negligent, is not so objectionable as to justify an adverse disciplinary finding, and, on the other hand, incompetent conduct which is more serious and warrants an adverse finding.” [Paragraph 41]

In NSW for registered certifiers, that means a finding of “unsatisfactory professional conduct”, or potentially the more serious finding of “professional misconduct”.

A discretion on point needs to be exercised by the trier of fact, looking at all surrounding circumstances, rather than taking an ‘absolutist’ position.

There is also recent case law in building misconduct to the effect that a practitioner needs to display some awareness of their responsibility to the public and should not take an antagonistic or unnecessarily belligerent line in defending matters.

Admissions of error should be genuine rather than ‘token’ in nature, with a true recognition of the significance of any errors.

At one recent hearing the certifier presented a character reference that had said words to the effect that he should not be made into a “martyr” for “venturing into areas where others had feared to tread”.

This attracted criticism from the Tribunal as it suggested that the certifier was also adopting the view that he was a martyr. This could obviously detract from any perception that the certifier was contrite and remorseful about any errors.

In another proceeding the writer appeared at for a building surveyor who had helped design an aspect of building works, the practitioner was asked as part of the outcome to write a letter on how he would avoid “conflict of interest” in the future. 

The practitioner tried to argue he was trying to assist and did not consider this to be conflict of interest. This presentation from the practitioner was assertive and did not appear to go down well with the tribunal, so the lawyer then needed to re-frame the tone of the submission about conflict of interest.

In disciplinary misconduct hearings there is not such a clear line between contesting allegations versus pleading guilty and then doing a plea in mitigation.

It is rather more blurred than that, but the trier of fact will still generally not tolerate a plea in mitigation that seeks to re-litigate findings of fact (or admissions) on liability. The plea in mitigation is all about finding the right formula and hitting the right notes.

Other possible ingredients of a plea in mitigation are:

• The practitioner has a clean prior record
• There is no pattern of relevant, adverse conduct
• There was no actual or potential harm flowing from the proven misconduct (Hans v Building Professionals Board [2008] NSWADT 285)
• The practitioner has remorse or is contrite
• The practitioner has paid some compensation or incurred expense as a result of the incident(s)
• Changes to workplace practices/protocols (that can be demonstrated)
• There was no dishonesty or attempt at pecuniary gain

The purpose of disciplinary proceedings is to protect the public and not to punish the practitioner (Craig v The Medical Board of South Australia [2001] SASC 169).

The reality is though that regulators see the preservation of standards and reputation for the overall industry as another goal of sentencing; therefore the goal of deterrence will play some part as a result.

Briginshaw v Briginshaw [1938] HCA 34

This is a case of the High Court of Australia in relation to a husband’s petition for divorce on the grounds of adultery, and whether the fact of adultery had to be proven “beyond reasonable doubt” or based on the civil standard of proof (preponderance of probabilities).

The civil standard of proof is whether a proven set of facts is “more likely than not”. This basically translates to a likelihood of more than 50%. See for example civil disputes between a Builder and an Owner in relation to which party wrongfully terminated a contract, and should pay damages to the other.

It was held that a standard of proof somewhere in the middle between those extremes was the right test, in matters of misconduct. This was the standard of “reasonable satisfaction”.

The Court said (page 11):

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”

“In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

While the Briginshaw test of “reasonable satisfaction” should be applied to the question of whether or not the charge is proven, that is certainly not as hard for a prosecutor to prove as the “beyond reasonable doubt” test in the criminal court.

The onus will also be on the prosecutor to prove (to that standard of proof) that charges are established on the available evidence.

For related articles on (topic) please see:

The VBA Building Practitioner Misconduct Process in Victoria

What to do When Your Building Practitioner’s Licence has Been Suspended

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 a construction law firm. The experienced team at Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute.