LC Lawyers

With the advent of private building surveyor or certification services over the last 20 or so years, we have seen private practice building practitioners armed with the status of public officials making regulatory decisions to uphold the ‘public good’ of community standards.

It is self-evident that when a private certifier or building surveyor is performing their functions their true client is the public or the community, which has an interest in the maintenance of safe and reliable building standards. This is despite the fact that the commercial client is an owner or developer who is faced with the imperative of building as quickly and cheaply as possible.

Given the importance of the building surveyor for issuing commencement and completion approvals, the building surveyors themselves evidently need a system that regulates their conduct and ensures appropriate standards are adhered to. Disciplinary powers are therefore also required in order to police the standards.

Could it be that in the drive to maintain community standards, some decision makers are losing sight of the key demarcation between professional error on the one hand and professional misconduct on the other? There is or should be a distinction between the two, and the judgment of the trier of the fact should be cool and reflective before there is any decision made that the line has been crossed.

There is case law in different States and Territories relating to building surveyors or certifiers, and the principles applied in one jurisdiction will be persuasive in another. In fact, the principles applicable to different professions (not just building) can be apposite in all areas of professional misconduct advocacy.

This is because all professional misconduct findings must be sourced in a decision by the fact finder that they are “reasonably satisfied” that misconduct has been proven against the practitioner, so that an adverse disciplinary finding can be made against them. This is a higher standard of proof than the usual civil standard in contract or negligence disputes, where you simply have to prove your case to the threshold of “more likely than not”.

In professional misconduct however, because of the severe reputational and potentially financial consequences to a person and their career, the higher standard of proof of “reasonable satisfaction” is needed before the person should be found guilty. This is not as high an onus as the level of “beyond reasonable doubt” found in criminal trials, but is still a high threshold that leaves little room for grey areas. Interestingly, the standard of proof for misconduct charges was initially set down in a case examining marital misconduct (or ‘adultery’) in the late 1930s, being the case of Briginshaw v Briginshaw [1938] HCA 34.

There is also case law in different Australian jurisdictions making a demarcation between professional negligence or errors on the one hand that should not amount to an adverse disciplinary finding, versus more significant and severe conduct that could or should amount to such a finding.

In a NSW case early in the third millennium, the judge made some instructive observations about differentiating incompetence from an adverse finding.

“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 warrant an adverse disciplinary finding and on the other hand incompetent conduct which is more serious and warrants an adverse finding.”

This writer submits that while some charges will be more clear-cut against a building surveyor, some other charges will be predicated on the building surveyor having allegedly exercised their discretion unreasonably or unprofessionally. It follows that it is the practitioner’s statutory discretion, after they have appropriately conducted the professional assessment for themselves, that is being impugned. That professional discretion is not without limits and can be questioned on a technical level; the problem is where there are ‘grey areas’ where reasonable and qualified minds can differ.

For example, in Victoria an offence of having issued a Building Permit where the Building Surveyor could not have been satisfied the building works would comply with the Building Act 1993 and the regulations, or where the Building Permit was clearly inconsistent with the Planning Permit, could in some instances be quite easily made out as a breach of section 24 of the Building Act 1993.

On the other hand, charges that are based on alleged breach of clause 1502 of the Regulations (ie failing to perform work “in a competent manner and to a professional standard”) are obviously more ephemeral or discretionary when it comes to the trier of fact evaluating whether a charge is made out on the facts.

One should not forget that the building surveyor too is entitled to a professional discretion. Where the charge itself is saying or implying that the professional discretion was exercised unreasonably, then it is the writer’s view that this needs a high threshold to be reached before a finding of guilty should follow. Something akin to a decision that no properly qualified building surveyor in this situation acting reasonably should have come to the same decision.

Not every instance of incompetence or error is tantamount to unsatisfactory professional conduct or professional misconduct

In other words the disciplinary tribunal would need sound and reliable evidence before disturbing the practitioner’s discretion and saying it was unreasonable.

Further to that, it is the writer’s contention that not every professional error that is made out should necessarily amount to an adverse disciplinary finding against the practitioner. All professionals are human and from time to time administrative or other failings will come to the fore.

To err is human, but something higher than any professional mistake is needed before a misconduct investigation or finding should follow. An absolutist position is not what is needed in order to afford sufficient protection to the public.

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 Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

Lovegrove & Cotton: Leaders in building practitioner representation

For thirty years, Lovegrove and Cotton have provided advice and represented building practitioners in disciplinary action matters. Please see our dedicated practitioner misconduct law section of our e-library for articles, or see the below recommendations:

How to respond to building practitioner disciplinary action

What to do when your building practitioner’s licence has been suspended

Building misconduct investigations – pleas in mitigation – golden rules

Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Kim Lovegrove RML, FAIB is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedents in Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

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When a Registered Building Practitioner (RBP) receives a notice from the Victorian Building Authority (VBA) that he or she has had their building practitioner licence suspended or cancelled, the RBP will need to act immediately as there is a 28 day appeal time period under Section 185 of the Building Act 1993 (VIC).

In most circumstances, the RBP has a right, upon receipt of the notice of suspension or notice of cancellation of their building practitioner licence, to have the decision reviewed by way of:-

• Internal review through the VBA; and/or
• Appeal to the Victorian Civil and Administrative Tribunal (VCAT).

If the RBP is a “directly affected person” under the act, the RBP will have 28 days to file the application for internal review with the VBA and 14 days after the end of the internal review period to file a review with the VCAT (Section 186(4)(a)). If the person wishes to directly apply to VCAT and not apply for internal review, they have 28 days from the date of the reviewable decision to apply to VCAT (Section 186(4)(b)). Accordingly, one must act quickly and the RBP’s suspension will not be lifted during the review period. Accordingly, the RBP should be aware that he or she cannot undertake building works pursuant to the suspended registration during this time.

Further, if the notice of suspension was determined by the Chief Commissioner or CEO of the VBA then the only review opportunity of the RBP is to apply to the VCAT; the internal review option will not be available.

An RBP who has received a notice of suspension or notice of cancellation of their building practitioner licence from the VBA would be well advised to engage a construction law expert experienced with practitioner misconduct advocacy. The requisite appeal instrument will need to be very carefully drafted as it needs to include all the relevant information for the VBA to review the reviewable decision. Legal representation is permitted for the RBP whether he or she elects to give written or oral submissions for the review.

By virtue of the fact that the suspension of a building practitioner’s registration can destroy that individual’s reputation and livelihood and potentially generate a litany of contractual repudiations, it is critical that the building practitioner deploy a construction law and practitioner law advocate immediately and close and careful regard must be had to the statutory review time limits. Note that once a registered building practitioner is suspended then he or she will in all likelihood be unable to complete any residential building contracts that may be on foot particularly in circumstances where the building practitioner is the RBP registered with a company. To say that the consequences of suspension are dire would be an understatement.

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 Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

Lovegrove & Cotton: Leaders in building practitioner representation

For thirty years, Lovegrove and Cotton have provided advice and represented building practitioners in disciplinary action matters. Please see our dedicated practitioner misconduct law section of our e-library for articles, or see the below recommendations:

What to do when your building practitioner’s licence has been suspended

Building misconduct investigations – pleas in mitigation – golden rules

What is the legal test for a finding of practitioner misconduct in Victoria and NSW?

Lovegrove & Cotton are experts in construction law and building practitioner representation in Melbourne, Sydney, the ACT and Queensland. Adjunct Professor Kim Lovegrove MSE, RML is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for over fifteen years and has established leading precedence in a number of Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

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The following is an excerpt from the publication “Disciplinary hearings an advocacy”, By Kim Lovegrove and Sav Korica

“Adept advocacy, be it prosecutorial, be it defence, will involve an intimate understanding of the seminal
cases and Acts of Parliament that shed light on the characterisation of matters that articulate the professional misconduct threshold vis-à-vis those that don’t.

By saying “don’t gild the lily”, one does not want to parade or market one’s client as being a paradigm of virtue when the evidence suggests that he or she is not. Alternatively, one should avoid making
representations in mitigation that cannot be substantiated. A common plea is “my client is well regarded in the industry”. Yet when the question is asked, “Well, how do you back that up, where are the references?” there is nothing to back up the contention. Furthermore, it is self-evident that the person who lodged the misconduct complaint did not share that sentiment of reverence for the respondent. To put it simply, never put forward a proposition or contention that cannot be backed up.

Tick off all the boxes

A good plea in mitigation for instance will evidence the following ingredients:

  • Contrition and remorse.
  • Cooperation, and hopefully the prosecutor’s concurrence with the respondent’s contention that there has been cooperation.
  • Intimate knowledge with the facts and the law on point.
  • The availability of apposite fresh references from referees of good repute.
  • Knowledge of priors or lack thereof.
  • If no real or actual harm has been occasioned, submissions verifying that.
  • Evidence as to “financials”, particularly where there can be heavy fine censure, earnings need to revealed, outgoings need to be revealed.
  • Evidence as to whether there are any dependants, and the impact that an adverse finding will have on them.
  • Evidence that can be produced that verify the changes that have been introduced, systemically, to avoid repeat occurrence.
  • In circumstances where additional education has been obtained to improve skill sets, that should be adduced.
  • Evidence of any reparation that has been effected.

The above menu or plea criteria should be applied to all pleas in mitigation because the information is germane to the painting of the mitigational picture. Each ingredient should be treated as “a box to
be ticked off”, when it is possible to do so and if an advocate applies this somewhat formulaic approach to their submissions in mitigation he/she will be advancing the cause of their respondent client.

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 Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

Lovegrove & Cotton: Leaders in building practitioner representation

For thirty years, Lovegrove and Cotton have provided advice and represented building practitioners in disciplinary action matters. Please see our dedicated practitioner misconduct law section of our e-library for articles, or see the below recommendations:

What to do when your building practitioner’s licence has been suspended

What is the legal test for a finding of practitioner misconduct in Victoria and NSW?

Lovegrove & Cotton: Leaders in building practitioner legal representation

Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Adjunct Professor Kim Lovegrove MSE, RML, is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedents in Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and sobering jurisdiction, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

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If a building practitioner is guilty of charges alleged in a misconduct inquiry, there is peril in denying at all costs. A well prepared plea in mitigation will normally be the most prudent cause of action.

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.

Key elements in a plea of mitigation

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

  • Any changes to professional practice or greater understanding reached as a result of any past errors committed;
  • 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.

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 need to have a good prospect of success on any charges that are to be contested. Charges should only be contested if the evidence does not support a finding of guilt of either practitioner misconduct or unsatisfactory professional conduct. There has to be a case to answer and if there is not case to answer it should be robustly defended such as the gravity to one’s professional reputation of an adverse finding.

The test is one of ‘reasonable satisfaction’

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

Whether we are referring to misconduct hearings at first instance, such as the Building Professionals Board in NSW or the VBA in Victoria, or whether we are discussing appeals to higher bodies, if there is anything the practitioner wishes to say about 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.

Fresh references from peers of good repute are very important

This is not merely a case of waving the white flag. A plea in mitigation takes some craft and ideally should be presented by a legal advocate. 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. Sometimes the practices or systems that need to be reformed are that of the practitioner’s firm or company, rather than individual or personal systems.

You may well be asked by the trier of fact or the investigator whether a policy manual is a recent invention the week before the hearing and is simply ‘window dressing’. So it helps if you can answer truthfully that the procedures have already been implemented and there is a commitment to put them into practice now and into the future.

There is recent case law in NSW (at the NCAT level) to the effect that not every professional error should necessarily lead to an “adverse disciplinary finding”. In NSW for accredited certifiers, that means a finding of “unsatisfactory professional conduct” or the more serious “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 past 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.

A good plea of mitigation will hit the right notes

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. That said, the conduct of other parties that contributed to what occurred, and matters outside the responsibility of the practitioner should always form part of a factual mitigation.

It is always possible to “fess up” to errors and show due remorse and a commitment to future change, while still providing a full explanation and even taken issue with certain statements presented as part of the prosecutor’s case.

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 Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

Lovegrove & Cotton: Leaders in building practitioner representation

For thirty years, Lovegrove and Cotton have provided advice and represented building practitioners in disciplinary action matters. Please see our dedicated practitioner misconduct law section of our e-library for articles, or see the below recommendations:

What to do when your building practitioner’s licence has been suspended

What is the legal test for a finding of practitioner misconduct in Victoria and NSW?

Lovegrove & Cotton: Leaders in building practitioner legal representation

Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Adjunct Professor Kim Lovegrove MSE, RML, is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedents in Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and sobering jurisdiction, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

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Having been heavily involved in building practitioner representation in disciplinary jurisdictions in Victoria, ACT and NSW for over 30 years we have learnt a thing or two about what works as an advocate and what does not. Here are some pointers:-

Engage a lawyer that is an expert on both building regulations and practitioner conduct advocacy

You must use a lawyer that is an expert in the field of practitioner misconduct. It could well be a mistake to brief a construction lawyer that has no experience in the intricacies of misconduct law.

Misconduct law even within a construction dispute context is a different paradigm to conventional litigation; it shares attributes with the criminal law, yet is not a criminal jurisdiction. 

Under Part 11 of the Building Act 1993 (VIC), the VBA is empowered to take a range of measures. The measures that can be taken by the VBA include a fine (limited to 500 penalty units for a natural person, or 2,500 penalty units for a body corporate), a reprimand, an undertaking, a direction for more education, suspension or cancellation.

A respondent should not underestimate the potential for unintended consequences, so it is prudent to brief an expert in the professional misconduct area. Even better an advocate that can straddle both construction law and professional misconduct. It is a false economy to brief someone out of their depth who does not have the dual ring craft for misconduct and construction law advocacy.

The deployment of a lawyer who is forthright and who does not pull any punches with you has merit. It follows that the lawyer might not always tell you what you want to hear. If his or her advice can be reconciled with what you want to hear then that is well and good. But if it cannot then you should face up to the position and own the advice proffered.

The reality is that a large proportion of the matters that are investigated will end up being prosecuted in circumstances where there is enough evidence to impute guilt. The lawyer must be able to figure out whether guilt is a fact or whether there are sound defences. However, if evidence of guilt is irrefutable then it could be misguided to contest it as this may jeopardise the ability of the advocate to generate a sound plea in mitigation.

What does a respondent building practitioner do upon receipt of notice of an investigation?

Potential respondents should immediately access legal representation once they are subjected to investigation. Reason being, the investigatory process can be very intimidating and the prospective respondent could well find themselves out of their depth when dealing with a context that is both novel, stressful and unfamiliar to them. There can be a fine line between a duty of cooperation and self-incrimination and legal practitioners skilled in this arena will be able to provide sound legal insights on point.

Many practitioners advise their clients that as soon as they receive a phone call from an investigator or an impromptu site visit to call their lawyers immediately. Sometimes the lawyers might suggest there is merit with the lawyer presiding at the interview but in other instances may request the investigator questions in writing to afford the respondent the time and opportunity to properly consider the responses. Rushed and panicked responses can generate inaccuracies and unintended consequences.

The first thing one must do when faced with a complaint is to carry out a realistic assessment, with one’s legal advisor, of what allegations can be contested (i.e. a ‘not guilty’ plea) and those that should not be contested but where a plea in mitigation can be presented. This ‘plea’ will offer a full explanation of the conduct from the practitioner’s perspective, with the aim of minimising any penalty as far as possible.

Be loathe to contest the incontestable

One of the golden rules is “avoid contesting the incontestable”. Avoid running a defence based on a denial of liability if the denial is misconceived. One’s lawyer will probably advise one to “fess up” and mitigate.

The plea in mitigation

When preparing a plea, have regard to the following:-

  • Be totally on top of the facts and the law. Cite the cases that most comfortably resonate with the facts applicable to the client’s predicament.
  • Impress upon the decision maker that the client is contrite and regretful, has learnt a lesson, and won’t do it again. Also encourage the client to instruct with regards to what has been learnt, so to inform the decision maker why the conduct will not happen again, and why it was aberrational. Documentary proof of changes to practice, e.g. a policy manual or detailed checklist, is also very helpful.
  • If it is a one off and aberrational, say so. If there is no history of recidivism, bring that point home.
  • Make sure that the client has fresh professional references that attest to the client’s good character and make sure that the references are from peers of good repute.
  • Giving respect to decision makers is critical; be they a judge, a tribunal member or a peer. Remember the decision maker has the power, not you, and not your client. Never forget that for a second. One sees on some occasions witnessed advocates and or their clients that do not afford an appropriate level of respect; such disposition has serious limitations.
  • Furthermore, it pays to be courteous to one’s opponent as this is conducive to the building of professional rapport amongst advocates which makes the task of negotiation much easier. It is not unusual for prosecutors to say that the respondent has been very cooperative and this can be one of the considerations that the decision maker has regard to prior to the conclusion of their deliberations and handing down of censure.

One of the most common censures is the handing down of a fine. It is important to be on top of the client’s financial position and if the client has dependants, mortgages and the like, then one should with the client’s permission, impress upon the decision maker that a high fine may not be commensurate with the gravity of the offence and could have a very deleterious impact upon the respondent.

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 Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

Lovegrove & Cotton: Leaders in building practitioner representation

For over thirty years, Lovegrove and Cotton have provided advice and represented building practitioners in disciplinary action matters. Please see our dedicated practitioner misconduct law section of our e-library for articles, or see the below recommendations:

What to do when your building practitioner’s licence has been suspended

Building misconduct investigations – pleas in mitigation – golden rules

What is the legal test for a finding of practitioner misconduct in Victoria and NSW?

Lovegrove & Cotton are experts in construction law and building practitioner representation in Melbourne, Sydney, the ACT and Queensland. Adjunct Professor Kim Lovegrove MSE, RML is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for over fifteen years and has established leading precedence in a number of Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.

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