Like many people at the sharp end of construction law, I have acted as lead lawyer in cases involving the Crown. Here, I have usually acted for the Crown, in relation to  for example, the British Library and the Millennium Dome (now known as the O2). In those cases, my professional opponents – English lawyers – acted for parties (English contractors) making claims against the Crown – 10s of millions of pounds claimed for work done and alleged delay and disruption – and I would not for one moment criticise them for so doing. Internationally, I have occasionally acted for contractors in claims of similar amounts knowing, at the end of the day, that my success would and did end up with payments made out of the Exchequer.

But what about other cases? To take an extreme example, let us look at the case of Philippe Sands KC, who acted as counsel for Mauritius against the United Kingdom in the International Court of Justice blaming the Chagos Islands.  As it happens, he was successful in that case, not so much I would suggest because of his skill as an advocate, but rather as a result of his skill in marshalling our enemies against us behind the scenes. More on this in a moment.

Mr Sands is this one of His Majesty’s Counsel, a KC (or QC as he was at that moment). This is what he said in Continue reading →

NT Adj reg 2025

It has long been said that legislation should be interpreted according to the intent of Parliament.^[1] Let us look at a particular example of how that works out in practice. Let us look at section 32(1)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW). This was, of course, passed by the Parliament of New South Wales, and then by other State Parliaments in the same form, including section 32 of the South Australian Act and section 38 of the ACT Act.

It provides that nothing in the procedural part of the Act (adjudication, and so forth) affects any right that a party has under the substantive part of the Act (the right to progress payments). At first blush, it is not entirely obvious what that means. In the ACT Court of Appeal in Harlech^[2], it was thought, bizarrely, that this meant that a right to a progress payment is not affected by previous adjudication. That is not what the words say at all, and I thought it might be interesting to examine this a bit in terms of intention.

I do not have any grandmothers; they both died a long time ago. But if I did, I would be comfortable betting their lives that not a single one of the parliamentarians sitting in South Australia or in the ACT in 2009 (when their Acts were passed) had the faintest idea what the effect of this provision was. Insofar as there was any intellectual Continue reading →

This case is by way of update on the case of Goyder v GE-Elecnor, which is of some importance to the application of the 3 principles of preclusion (res judicata, issue estoppel and Anshun) to security of payment in Australia. It is a case I know well, having acted as leading counsel at first instance in the Supreme Court of South Australia, and in the appeal, and now having prepared the application for leave to appeal to the High Court.

First, some background. Goyder is building a wind farm. It engaged a joint venture consisting of GE and Elecnor for the project. It should have started in March 2022, but there was a short delay at the beginning of the project, which held up access to the site. The contract was in a fairly typical form; the contractor was entitled to an extension of time in certain circumstances, and to delay costs in a more limited set of circumstances. The contractor claimed an extension of time of 118 days. There was the usual regime for notices and for the parties to meet to try to resolve things. That meeting was held in March 2023, but did not resolve things. The contractor eventually gave notice of arbitration in December 2023, claiming an extension of time of 118 days in delay costs of some $61 million for various categories of alleged cost.  That arbitration continues to struggle on.

Meantime, conscious no doubt that these arbitrations take a while, the contractor made a payment claim in February 2024 under the Building and Construction Industry Security Of Payment Act 2009 (SA) including a claim for delay costs of some $15 million, being some of that $61 million. That claim led to an adjudication in which the contractor was partially successful. And then in April 2024, the contractor made a payment claim for some $26 million for another chunk that of those delay costs. These chunks mirrored almost exactly the categories of claim in the earlier notice of arbitration. That second payment claim also led to an adjudication in which, again, the contractor was partially successful. In July 2024, the contractor made a 3rd payment claim for some $21 million by way of delay costs, this time overlapping somewhat with its first claim. And then in December 2024, the contractor made a 4^th payment claim for Delay costs, this time for some $15 million. That led to yet another adjudication determination, this time for zero.

All of these claims were based on the same alleged 118 days delay, the same contractual provision, the same set of contractual notices, and the same unsuccessful dispute resolution meeting back in March 2023. And so in Continue reading →

I was shocked and saddened to hear this week of the sudden death of Paul Darling KC. I knew Paul for many years both from encountering him in court, where he was an impressive presence, and as a friend.

At one stage, Paul tried to persuade me to apply for the bench. He was of the view that I would be a shoo-in.  Quite where he got his confidence from on this I never quite knew, but happily I resisted the temptation.   If I had followed his suggestion, and had been successful, I fear that I would have felt horribly constrained on the bench.

Later, when Paul was head of Keating Chambers, he made a better suggestion, inviting me to join Keating Chambers. Which I did, and was very happy to be an international member of those Chambers for some years.

He was a man of great charm, irrepressible and always good fun to be with. My heart goes out Continue reading →

The application for judicial review/injunction in the case of Goyder Wind Farm 1 Pty Ltd v GE Renewable Energy Australia Pty Ltd, and Elecnor Australia Pty Ltd, David Thyer and the Resolution Institute was heard yesterday by Justice Stein in the Supreme Court of South Australia. I appeared for the applicant.

The court indicated that the reasoned judgment should be available within a week or so, and this will add to the jurisprudence on the issue of the reagitation of claims, under section 22 (4) of the Building and Construction Industry Security of Payment Act 2009 (SA), as a matter of abuse of process and as a matter of jurisdiction.

Last week, I delivered a paper for the South Australian Bar Association on Extra-Contractual Recoveries. It was an adaption from the paper I delivered to the Society of Construction Law in London in December, put in context of South Australian law rather than English law.[1]

For technical reasons[2], the paper had to be delivered without the PowerPoint that I had prepared to go with it. In a sense, that was a challenge, because what I had prepared to say was built around that PowerPoint. But in another sense, it was rather refreshing to just talk to an audience any backdrop of charts, pictures, bullet lists or extracts from authorities.

One of the things that I address in the paper is what I see as the current obsession with the black letter of lengthy bespoke contracts, as though the express words contain a complete code on the legal relationship between the parties. The scenario that I present illustrates, I hope, that the express words of the contract are never more than a starting point; they are not holy writ, but are frequently  rendered irrelevant or inoperative by other aspects of the law.

Meanwhile, my book Extra-Contractual Recoveries for Construction & Engineering Work is continuing to sell around the world. It has got good reviews and those who use it say nice things about it. Hopefully, it will continue to sell for a while to come. I reckon it is little short of professional negligence for commercial litigators in the common law world not to have access to a copy.

This Australian version of the paper, as delivered last week, is Continue reading →

The presentation to the Law Society of South Australia yesterday afternoon went well.[1] A delegate has since asked this:

“I am assuming that unlike a mediation where parties are precluded from referring to anything said or done during a mediation, there is no confidentiality/settlement privilege over any documents/proceedings in a pendulum arbitration since it is more like a trial and is meant to be a final judgment?  Is this correct?”

The answer is “Yes and no”.

“Yes” in the sense that a pendulum arbitration is likely to be confidential in the same way as every other arbitration. That confidentially prevents publication of either the proceedings or the result to the public.

But “no” in the sense that in the unlikely event of the pendulum arbitrator doing something really stupid, it is open to the parties to challenge his/her misconduct in court, just like in any other arbitration.  In practice, there is likely to be little or no opportunity for such challenge in cases where the pendulum arbitrator understands the process.

Continue reading →

Today is the last day to register for the LSSA CPD Webinar tomorrow, either personally (best) or via video link (better than nothing).  The deadline for registration is 4.00 pm. (Now see Stop Press 2 below)

It is on pendulum arbitration, which is the most promising dispute resolution technique around today, albeit that it is still in its infancy in Australia. Experience from the USA (where it originated, at least in its modern form) indicates that it really does deliver dispute resolution which:

• • Is final and binding, with precious little opportunity for appeal,

• • Is fast and cheap, comparable to a mediation,

• • Is simple to understand, and free from excessive the procedural complexity which plagues security of payment processes,

• • Is regarded as fair by parties who have been through the process,

• • Is free from much of the acrimony which so often plagues litigation and conventional arbitration.

I urge as many lawyers as possible to at least find out about it. Indeed, not to know anything about it and, in appropriate cases, to offer it as an option to clients, seems to me to something of a dereliction of duty. Certainly dispute lawyers, whose job includes advising clients about the most efficient way of resolving existing disputes, but also front-end lawyers, who might well be putting pendulum arbitration clauses into contracts. The session is based on a session I did for the SABAR, which was well received.

Continue reading →

The Law Society of Australia is hosting a webinar on Pendulum Arbitration of 5th June. Philip McNamara will be in the chair and I will be presenting.

Details are at the LSSA website. The content of their notice is:

Wednesday 5 June, 2024 | 04:30pm – 06:00pm | In-Person & by Webinar
1.5 CPD units (Practice Management/Business Skills)

Presenter: Robert Fenwick Elliott, Pendulum Arbitrator and Mediator
Chair: Philip McNamara KC, Murray Chambers

An explanation of what pendulum arbitration (aka baseball arbitration) is, what its advantages are, how it works in practice and how to implement it. This session will provide a practical guide for practitioners to when to recommend pendulum arbitration, how to implement it, and what to expect.
Pendulum arbitration combines the speed and cost advantages of mediation with the certainty of a binding result. It is successfully used elsewhere in the common law world but is still in its infancy in Australia. Practitioners who are early adopters, and their clients, have an opportunity for significant advantage over those who are limited to more traditional dispute resolution techniques.

Registration Fees:
Platinum/GDLP Members: Free
Members (admitted more than three years): $110
Members (admitted less than three years): $85
Non-Members: $160

It is never easy getting unfamiliar ways of doing things adopted, but hopefully, practitioners will attend this presentation and start using pendulum arbitration in suitable cases. Once practitioners are familiar with the process, it should take off. Continue reading →