Victoria has “broad church” practitioner registration, while New South Wales has “narrow church” or “secular” registration.
In New South Wales, save for accredited surveyors and domestic builders, no one else has to register with the Building Professions Board. In Victoria, all “front line” building practitioners have to be registered with their equivalent, the Building Practitioner’s Board. The practitioners are as follows:
- Commercial builders
- Quantity surveyors
- Residential builders
- Building surveyors
- Building inspectors
- Plumbers also need to be registered
With registration comes compulsory insurance. It follows that has Victoria nine classes of registrants carrying compulsory insurance and NSW a mere two, which can pose problems for consumers in NSW.
Practitioner monitoring and compliance is important for the full gamut of practitioners in any jurisdiction to ensure that probity and professional standards are upheld. Comprehensive “broad church” registration bodes well for the public as all key players in the practitioner fraternity come under a central oversight and disciplinary arena.
It follows that the mantra of practitioner registration – community protection and the upholding of professional competencies – can be applied. This ensures consistency and balanced risk spread and, for fear of belabouring the point, it generates a critical mass, a very large insured community of key service providers in the building industry. Compulsory insurance provides real accountability because absent insurance, if a defendant can’t afford to meet a liability then insolvency follows and the plaintiff – the consumer if you will – is left high and dry.
The real problem with a “small fellowship” of practitioner registrants is the consumer prejudice that flows from the application of the doctrine of proportionate liability.
Proportionate liability operates as a liability “divvy up” doctrine in multi-party proceedings. Under proportionate liability, no party has to account for any more than his, her or its judicially determined contribution to the liability. In a typical multi-party building dispute to do with building defects, the owner will seek redress from the builder, the building surveyor, sometimes the engineer and frequently the designers. In New South Wales, it is only residential builders and the certifiers that have to be insured by law.
So, in circumstances where the plaintiff, after having spent huge sums of money, ultimately obtains judgement in a court of law or a tribunal against all defendants, it may well be pyrrhic victory. If some of the defendants such as the engineer and the designers are uninsured, they may not have the capacity to pay for their judicially apportioned level of responsibility. They may instead choose to wind up their company or opt for bankruptcy and then like a phoenix rising from the ashes, regroup and reassert themselves under another corporate guise.
Absent compulsory insurance, the plaintiff may only get 50 to 70 per cent of the judicially assessed compensation. This is pretty rich when you think about it, particularly in circumstances where “South of the Border,” all building practitioners by virtue of the compulsory insurance requirement are capable of coughing up and confronting their liabilities since the late 90s.
From a holistic and utilitarian point of view, the NSW registration regime is reminiscent of an incomplete jigsaw puzzle because it is missing the vital ingredients of broad church registration and the wider net of insurance that couples up with registration. This regime has established itself as the status quo for nigh on 15 years. It is difficult to find any particular reason as to why the status quo should remain when the insurance products are available, there are established comprehensive registration regimes in place such as the NT and Victoria and there is a worthwhile dividend to the community.