When must an adjudication application be served? Another fine mess

There are numerous reasons why it would be sensible for there to be a single security of payment regime operating throughout Australia. That was the recommendation of the Society of Construction Law Australia in 2014[1]. It was the recommendation of the Murray Review in 2017[2]. In particular, the legislation is complex. The New South Wales Act[3], for example, is 16,011 words long. The Queensland Act[4] is even worse – much worse – at 52,629 words. It is absurd that parties and their lawyers – subject to very short timescales – have to navigate not only these complex regimes, but if they practice interstate, also to navigate intricate differences State by State.

One of these differences is in relation to the requirement which appears in all the legislation: that when a party makes an adjudication application, a copy of that adjudication application must be served on the respondent. Section 18(5) of the Victorian Act, for example, provides as follows:

A copy of an adjudication application must be served on the respondent concerned.

Section 21(5) of the Queensland Act is in the same terms. But these same words mean different things in those States.[5]

The provision does not say who has to do the serving.[6] In practice, it is the claimant, or the claimant’s lawyers. Nor does it say when it has to be served.[7] Nor does it spell out the consequence if it is served later than it should have been served.

The issue arose in Queensland in Continue reading

Pendulum Arbitration on TV

I recorded a TV programme for BenchTV on pendulum arbitration the other day, being interviewed by Christopher Chin. BenchTV have not yet put it out, but I think that will not be too far in the future. My paper for the South Australian Bar Association is here, but this interview should provide a helpful and readily digestible first look into the topic for a wider audience.

These black backgrounds make one look a bit scary, but hopefully that will not detract too much from what is, I think, a significant weapon in the arsenal of dispute resolution.

What about the lecture I am doing for the Society of Construction Law in London in December on ‘Claims Outside the Contract’ alongside Christopher Seppälä from White & Case’s Paris office? In short, I will be talking about extra-contractual recoveries in common law (the topic of my most recent book), and Christopher will look at them from a civil law perspective. Should I turn up in person (it is a long flight for just one event)? Or do it by video from Myponga Beach? If I do it in person, my background will not be black. Or even blurred. But the National Liberal Club. Which has majestically hosted the lectures to the Society of Construction Law for decades. And anyway, whilst I have no present plans for a second edition, I would welcome the opportunity to talk to Christopher about this stuff.

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