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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.