I have been hooked up to contribute to the LEADR/IAMA ‘kon gres in Adelaide on 15 September this year, to talk about review boards.
Review boards are plainly important. In the old days, the alternatives to litigating construction contracts in the courts (plainly, a hugely inefficient process) were arbitration, with a sprinkling of mediation. That has all changed now. If we had to describe the alternatives these days, a somewhat crude analysis would be that they are adjudication with (in the case of major projects) a sprinkling of review boards.
There is quite a lot to say about review boards; in the case of major projects, they provide the opportunity for a much more intelligent and efficient way of both preventing disputes, and if disputes are inevitable, of resolving them. For this particular session, I will be sharing the task of talking about them with Patrick O’Sullivan. One of my topics is to talk about enforcement, and so I will have to say something about the decision in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation  SGCA 30.
Rather than shoot my own fox for the excitement on the day for my analysis of this judgment, which runs to Continue reading
It would be good to get some quiet in order for me to finish off my book on Extra-Contractual Recoveries, but every time I think I am going to have a clear run of a few days, something intervenes.
Last week, those intervening things involved projects in (working clockwise) Western Australia, Northern Territory, Queensland, New South Wales and New Zealand. I did not do any work at all last week on any projects in South Australia.
Although, coincidentally, my home in Adelaide was Continue reading
The South Australian Building Work Contractors Act 1995 has always been a curious piece of legislation. By section 32, it sets up some statutory warranties which apply to domestic (i.e. residential) building work. These statutory warranties are very much in the same vein as the warranties which would in any event be implied as a matter of common law. Then, by section 37, it sets up some quite wide statutory powers, whereby the Magistrates Court can do various things, including ordering the builder to perform remedial work (a surprising power, since the law has for a long time set its face against granting injunctions for this purpose, since such injunctions are notoriously in spawning further disputes) and making an order for compensation where there has been a breach by the builder of the section 32 statutory warranties. It also confers a power on the Magistrates Court flowing in the other direction: to require payment of an amount due under a domestic building contract. Note the numbers: 32 is the warranties and 37 is the powers.
Anomalously, these powers are vested in the Magistrates Court regardless of the amount in dispute. It seems pretty clear that Continue reading
It has always been the case that actual or apparent bias by an adjudicator will render the adjudicator’s decision liable to be quashed on the grounds of natural justice. In the early days of adjudication, cases in which bias was as established were rather rare, but it seems that the their numbers are growing, as illustrated by the recent English case of Paice & Anor v MJ Harding (t/a MJ Harding Contractors)  EWHC 661 (TCC). The case is interesting because it exemplifies how apparent bias can arise from the actions, not of the adjudicator himself, but of his support staff.
There was a complex history to this particular adjudication, which was the 4th adjudication between the parties arising out of a contract for the construction of 2 houses. The adjudicator was Robert Sliwinski, an experienced chartered surveyor. He had been the adjudicator in the 1st and 2nd adjudications, in both of which he had ordered the claimant owners to pay money to the defendant builder.
The apparent bias arose out of a couple of telephone conversations that took place between the claimant owners and Mr Sliwinski’s wife, who was also his office manager. Quite how Continue reading
I was asked the other day for permission to reprint a rather old article of mine on delay analysis, and I took the opportunity to update it, see Delay in Construction Projects: Where Science Meets the Law.
It also provided me with the opportunity to include a reference to Heisenberg. Before I studied law (as a postgraduate, the College of Law in the UK) I had obtained my degree in English and American literature, but originally, had gone to university with a view of taking my degree in theoretic physics. I have always thought that theoretic physics is a rather underestimated discipline for lawyers and among the concepts of quantum mechanics that has some application to law is Heisenberg’s uncertainty principle. In a nutshell, the true Continue reading
I was saddened to hear of the death this past week of Geoffrey Hackett-Jones QC, who was for many years Parliamentary Counsel of South Australia and then of The Northern Territory.
Not only was Geoffrey a talented musician, but he had a brilliant dry wit. A slight pause before he spoke, coupled with the barest of suppressed smiles, was a sure sign that an outrageously arachic comment was on its way.
He was also a really nice man. Would that there were more like him.