Before moving to Australia in 2002, I had for many years practised as a construction lawyer based in London. My practice had taken me to many countries around the world, and I occasionally heard reports of the difficulties caused by mechanics’ liens in the United States. It was not until I arrived in Adelaide that I appreciated that South Australia, alone of all the states in Australia, had similar legislation, substantially unchanged since it was enacted at the end of the 19th century.
It took me a while to get to grips with the legislation. There are no modern textbooks or other commentaries that are adequate, which is perhaps unsurprising given the relatively small legal jurisdiction in which it operates. I found myself making notes for my own purposes, and these notes have gradually expanded into this casebook.
It is hard to be enthusiastic about the merits of this legislation, unless perhaps you believe in desirability of an inefficient legal system in order to maximise income for lawyers. It was drafted by a man who had already been certified as a lunatic, and who was then repeatedly held in institutions for the insane. It was taken through parliament by a man then bound over the keep the peace for apparently intending to shoot the principal opponent of the Bill in a duel. The ineptness of its drafting has repeatedly been the subject of the most trenchant and persistent judicial criticism. The very name of the Act contains a grammatical error. The main line of judicial authority appears to stem from a factual misinterpretation of a case reported only in a newspaper, the forerunner of the local tabloid. It has proved virtually useless for the class for which it was intended – working men – but instead has been seen as a bonanza for corporate contractors. Yet for these corporate contractors, it has proved remarkably unsuccessful; in the considerable majority of cases reported in this casebook, the claimant was denied enforcement of the lien claimed. It is truly remarkable that it has survived for 115 years.
South Australia is not only the last state in Australia to retain this worker’s liens legislation, but is also the last mainland state to embrace the modern practice of adjudication in the construction industry. The Northern Territory recently introduced a modern Construction Act, including an adjudication process, and took that opportunity to repeal its worker’s liens legislation, which had been in the same form as the South Australian legislation. The case for South Australia to follow suit is a powerful one, and so this casebook may well become no more than a curiosity in due course.
The bulk of this book is taken up with the text of the relevant decisions, some of which are available electronically, and some of which are not. The cases are preceded by a commentary, which will hopefully provide a useful introduction to the bizarre drafting of the legislation and are followed by the Hansard reports, and precedents. I have largely resisted the temptation to correct idiosyncrasies in the judgments as reported, or to annotate the judgments with personal opinions. I have however introduced some formatting changes (and in particular, paragraphing, indenting of quotations and where appropriate, the adding of paragraph numbers) to make the judgments more readily digestible to the modern eye, corrected a few of the more glaring typographic errors in earlier reports and have added a few footnotes to identify other textual errors that might otherwise confuse.
I have been very conscious, when preparing the commentary, that it might take a lifetime to make such a commentary comprehensive, and that the result would be indigestible in the extreme. I soon abandoned any such objective: instead it is intended to be no more than a relatively brief introduction to the key points, and some of the more important anomalies and misunderstandings that seem frequently to arise in practice.
Hopefully, this book will be of value to practitioners in South Australia who regularly have to get to grips with the intricacies of the Act. It may also be of some value to practitioners in other states in Australia who would appreciate a single volume on the topic for those less frequent occasions when they have to get to grips with it. And for academic lawyers, it may have some interest as illustrating how a piece of poorly drafted and ineffective industrial reform has survived a century of jurisprudential failure.
I should thank my colleagues who have helped with the preparation of the book, and particularly Mandy Mansell who did the final editing. Michael Manetta checked the latin tag explanations. The Lands Titles Office kindly consented to the reproduction of their forms and notes. The photographs of Richard Baker (Swiss Studios, nla.pic-an229484445), Sir John Downer (Hammer & Co, nla.pic-an2360500) and Charles Kingston (Swiss Studios, nla.pic-an23379300) are published with the permission of the National Library of Australia. The photographs of Paris Nesbit, (SLSA: B 16966), Edward Hawker (SLSA: B 11249) and Tom Price (SLSA: B 11257) are published with the permission of the State Library of South Australia. As always, however, the errors in the text, if not in the judgments, are mine.
Robert Fenwick Elliott
Fenwick Elliott Grace
 See paragraph 346 at page 750 below.
 See paragraph 343 at page 750 below.
 See paragraph 21 below.
 See paragraph 5 below.
 See Giles v Jacob at page 360 below.
 See paragraph 91 below.
 See paragraph 30 below.