Articles

By Justin Cotton,  Director,  Lovegrove & Cotton – Construction & Planning Lawyers

At a recent VCAT Review Hearing that the writer was involved in, a ‘double jeopardy’ type argument was run, to the effect that the building practitioner appealing a misconduct penalty (suspension of registration) should be able to refer in mitigation to having been convicted and fined at the Magistrates Court previously.

In the Victorian courts, a conviction against a registered building practitioner at the Magistrates Court is often seen as ‘green lights’ to an Inquiry and subsequent Hearing before the Building Practitioners Board.

The argument can of course be made that the Courts on the one hand, versus a misconduct tribunal on the other, are entirely different jurisdictions. The former if not criminal is at least ‘quasi-criminal’ in nature, while the latter is a disciplinary tribunal where a finding of guilt must be on the lesser scale of ‘reasonable satisfaction’ rather than the standard of ‘beyond reasonable doubt’ applied in the Courts.

That said, if we are dealing with the same property or properties, the same building works, the same set of facts and largely the same offences, there is something to be said that there is an element of ‘being punished twice for the same thing’. This is known as ‘double jeopardy’ and is seen as against public policy and contrary to ordinary notions of procedural fairness and natural justice.

In this the 800th anniversary year of the signing of the Magna Carta, shouldn’t we be eager to ensure that the principles first given consideration in that venerable document, are given due weight and consideration in building misconduct matters?

In the builder’s case that the author was involved in as advocate, the builder had already appeared at two Magistrates Court hearings in 2011 as a result of his contractor’s over-excavation of 2 sites when building multi storey apartment buildings. Either he as the registered builder director or his building company had been fined heavily in excess of $50,000 and there had been a conviction in the Courts. Then by late 2012, he was the subject of a misconduct Inquiry at the Building Practitioners Board.

Initially, at the BPB, he was found guilty of all five charges and suspended for 12 months. He then sought legal advice and engaged lawyers. By the time the case had then been through a Building Appeals Board review and then later a Supreme Court challenge on an error of law, the five charges eventually became only two charges that were being pursued, and these were not contested.

By the time of the VCAT Review this month, the hearing was only about the penalty. The Board was still pursuing the original 12-month suspension and part of its argument was that the Building Act 1993 did not allow a fine to be imposed under that Act if a fine had already been imposed in the Courts for the same matters.

Therefore, the recent amendment to the Building Act 1993 that had imposed this limit on sentencing implicitly recognised that there was a degree of cross-over and interaction between the two separate jurisdictions (Court versus BPB).

For his part, it was argued for the Builder that he was in fact being treated more harshly because he had previously been taken to Court over the same matters, but this was effectively a ‘double jeopardy’ situation and contrary to natural justice – unless the fact of the earlier fines was allowed to play some part in sentencing considerations.

The Tribunal agreed at the VCAT Review effectively, and said that the fines at Court the previous year should play some part in sentencing considerations. In fact, the deterrent element that the Board said should be relevant to sentencing, could be said to have been met when the fines were imposed at Court.

Given that it found that the offences were down to professional negligence only, there was no dishonesty or pecuniary gain to the Builder, and that he had tried to rectify the situation and had since changed his excavation practices, the Tribunal found that to suspend the Builder from registration would only serve to ‘punish’ the Builder. Further that this sort of ‘punishment’ is not the role of practitioner misconduct sentencing. The result was that the Builder was given a reprimand and ordered to pay the costs of the initial Inquiry, but there was no suspension ordered.

For more information or advice in relation to your rights and responsibilities as a building practitioner in Victoria or in other States or Territories, you should not hesitate to seek expert legal advice from a construction lawyer well versed in practitioner advocacy.