My post on the timing of adjudiucation applications has been published in the Australian Construction Law Newsletter.
It highlights an absurdity in the interstate differences. But one might not hold one’s breath about the likelihood of it being fixed.
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
The Dispute Review Board Foundation has sent me a certificate of appreciation, for being a member of the DRBF for more than 10 years, which is thoughtful of them. Actually, I think it is quite a bit more than 10 years!
And I see, with great pleasure, that my old friend, co-author and partner in the London firm that I founded (Fenwick Elliott LLP), Jeremy Glover, is on course to become the new President-elect of the DRBF. An excellent Continue reading
A friend of mine, who now lives in Spain and who has a wicked sense of humour, tells me that he asked Chat GPT this question:
“Has Robert Fenwick Elliott written any good books? “
The answer that he got is that I am a well known author and expert in construction law and that I am highly regarded in this field, and that my books are widely used and respected.
Well, nothing controversial there, you might think. But the wind rather goes out of these sails when one looks at the detail. What Chat GPT actually said is Continue reading
There was an interesting and useful breakfast meeting of the DRBF this morning chaired by the indefatigable Ron Finlay in Sydney. It was mostly about dispute avoidance techniques in DABs, but at the end we had a brief discussion about tribalism: the process in which litigation teams in major litigation or arbitration tend to form societal units, with their own loyalties, methods and objectives.
I have long thought that tribalism in major litigation or arbitration is a hugely powerful effect, and encouraged by Kiri Parr from Brisbane, am here offering some observations about it.
One impact is that it renders the “independent” concept of expert witnesses almost entirely meaningless. This is partly because he who pays the piper calls the tune, but also because expert witnesses who get heavily involved in a major piece of litigation or arbitration typically become part of the tribe, consisting of counsel, solicitors, in-house legal and commercial people on any one side. This tribalism is not dissimilar, it seems to me, from what happens in traditional warfare, and which is maximised by organising infantry into groups (companies) of about 20 soldiers. It is in groups of that size that tribal loyalty seems to be that its strongest. And that size is, roughly, the size of a litigation team in a major dispute (including counsel, solicitors, experts, in-house legal and the commercial people). When an expert witness becomes sufficiently embedded into litigation team, the opinions of that witness typically become a secondary tier of advocacy. The expert might not, like a soldier, be prepared to risk his life for other members of his company, but the psychological pressure to support the team as best as possible is huge.
Another less widely recognised impact is that the tribe often becomes resistant to settlement of the dispute, because that settlement means the dissolution of the tribe. For sure, “best for tribe” usually outweighs “best for project”, and often outweighs “best for own party”. In part, of course, this is because Continue reading
It is good to see Myponga Beach (where I am based) feature in the latest issue of Australian Construction Law Newsletter, in a piece on pendulum arbitration.
Myponga Beach has punched above its weight in the construction law world for a while. A week or so ago, I welcomed Julian Bailey (now based in London again, but an Adelaidean by birth) and have chewed the cud with a number of other construction lawyers here over the years. Continue reading
I am pleased to be able to report that, after umpteen tests, my health scare is now over. I am told that I have just one more exploratory medical procedure to go, but believe that the recommendation for that is merely precautionary. Meanwhile, during the three months that I have been recuperating, I have recovered much of my previous rude health.
During this period of recuperation, I have handed over the whole of my caseload to other counsel, and have now decided that, rather than resume my practice as a barrister, and after some 44 years since I first started practising as a specialist construction lawyer, this is the appropriate time for a change.
Henceforth, I will practice as a pendulum arbitrator and mediator.
I am one of the few construction lawyers in Australia with experience of pendulum arbitration, and am, I believe, the only arbitrator specialising in this form of dispute resolution. It is a form of dispute resolution which I have long regarded as much underused in the construction sphere offering, as it does, massive advantages in terms of reduced cost, increased speed and the opportunity for disputants to get on with their business without distraction. A fuller explanation of how pendulum arbitration works is here. And some Q&A.
A feature of pendulum arbitration is that it works best if the disputants have a high level of confidence that the pendulum arbitrator has the necessary experience and expertise in construction law to be able quickly and reliably to make an assessment of the strengths of their cases. I believe that I have that necessary experience and expertise.
Mediation is, of course much better known. I have been occasionally mediating construction disputes since the 1990s although not, hitherto, as a mainstay of my professional work[1]. So far, I have never failed to resolve a dispute in which I have been appointed as mediator. I do not expect this track record to survive indefinitely, but I hope it will give confidence that I am a safe pair of hands in this capacity.
It will not be necessary for me to maintain my practising certificate in these new roles, and I do not propose to do so once my current certification runs its course. This means that I part company with Keating Chambers, of whom it has been my great pleasure to be an International Member for some years, not only because of my friends there, who I have known since my days as a young lawyer in London, but also because of its ever increasing status as the leading set of construction law chambers in the common law world.
I remain a registered adjudicator in the Northern Territory, and a member of the Dispute Review Board Foundation, and am available for appointments in those Continue reading
I regret that I am presently unwell, and not in a position to accept instructions.
Praemonitus praemunitus (forewarned is forearmed) has always been a good motto, and I am pleased see that Richard Winward uses it to suggest that my new book is valuable for paymasters as well as contractors.
Happily, his review in Designing Building, the Construction Wiki is again favourable, concluding:
The book achieves a good balance between legal analysis and practical application … It should be a welcome addition to the bookshelves of contractors, clients/developers and their professional teams.
I have added the review to the collection of reviews.