Security, but no Master Key

By far the majority of my work, these days, is either interstate or international. In even a dispute arising under the biggest South Australian project with which I am currently dealing (no names, no pack drill, but it is a very large project) is being dealt with in New South Wales (I am pretty much the only lawyer based in South Australia involved in the dispute).

Also, the majority of my work (not all of it, of course) deals with the adjudication of disputes under what is known, in Australia, as the security of payment legislation[1]. I do not think I have dealt with any security of payment issues in the ACT. But I have been instructed, and have acted, in security of payment disputes in every other state and territory. And of course New Zealand.

It is utterly bizarre that there is a different statutory regime in every State and Territory. I have particular sympathy for the specialist Continue reading

Forecasting the Law

Philip_E._Tetlock

Professor Philip E Tetlock

As lawyers, a lot of what we do is make predictions. At its most basic level, every bit of legal advice as to what the legal position is in any case is essentially a prediction: what would the courts make of it? In practice, the prediction is more subtle. What is the likely outcome of a legal engagement, bearing in mind that the vast majority of cases settle?

A good question is “How do we make these predictions?” And more importantly, “What can we do to make such predictions more accurate?”

These questions have hit a bit of additional topicality following the recent row in the UK about Andrew Sabisky. He is a special adviser, only recently appointed by Downing Street, who is what is known as a “superforecaster”. There is more science to this expression that you might think, not least because of the work of Philip Tetlock, who is a professor at the University of Pennsylvania, in the USA. He has done a good deal of work over the years on the subject of forecasting, or predictions, and has organised, through the Good Judgment Project, a series of forecasting tournaments over the last three decades. It turns out that the majority of people, including people ordinarily regarded as experts, are pretty rubbish at forecasts, barely better than random. In the longer the range of forecasts, the poorer their accuracy. But there are a few people – the so-called superforecasters – who are really rather good at it. It is not just luck. Time and again, these superforecasters (typically the best 2% of forecasters) prove themselves to be much better than run-of-the-mill experts are predicting what is going to happen. And Professor Tetlock and his team have done a good deal of work in identifying what makes these superforecasters better than others.

The answer turns out to be quite complicated; the superforecasters have a range of talents and techniques. One is the use of Continue reading

Tabs

workplacesI am not at all sure that I like Google following me around like this.

Not that it is a huge secret that my work takes me all around Australasia.  And there is nothing special abount these trips.

But, even so… suppose my work took me somewhere that my clients wouild prefer the world Continue reading

Appealing

Almost all legal systems provide for appeals in some shape or form, such that a dubious decision of a more junior judge may, subject to some constraints, be reviewed by a more senior judge. In England and Wales, for example, there is a Court of Appeal which hears appeals from other judges in the High Court. Sensibly, this is divided up into The Court of Civil Appeals and The Court Of Criminal Appeals because, obviously enough, there is no point in appeals being heard by judges who are more senior but less experienced in a particular area of the law. Indeed, the current system ensures that there is at least one construction law specialist in the Court of Civil Appeals, and at the moment that is the very competent Lord Justice Coulson.

In some Australian jurisdictions, the bizarre practice that has applied (including, until now, in South Australia) is that appeals in the Supreme Court are not heard by more senior judges, but just more judges of the same seniority, known as the Full Court[1]. Where cases are managed (sensibly enough) on the basis that specialist cases (such as construction cases) are heard in the first instance by a judge with some experience in that area (especially in construction cases), the effect of this is that appeals are heard by judges who are less qualified than the judge who heard the case in the first place. Particularly unsatisfactory is that commercial cases, including construction cases, come before judges sitting in the Full Court whose expertise lies in the area of criminal law. Unsurprisingly, this is meant that the track record for South Australia when decisions of its Full Court go to appeal to the High Court of Australia has been very poor.[2]

LiveseyAccordingly, it is much to be welcomed that the Parliament of South Australia has now passed legislation setting up a new Court of Appeal in South Australia, and also to be welcomed is the announcement by the Attorney-General Vickie Chapman that Mark Livesey QC has been appointed to preside over that new Court of Appeal. As the Attorney-General says in her announcement, Mark Livesey is highly respected, and with good reason:  he has an expertise in commercial cases which is not presently ubiquitous on the South Australian Supreme Court bench.

The majority of my time is spent in relation to large construction projects, and accordingly I practice far more in the courts of other States and Territories of Australia than in my home state of South Australia. I’m sorry to say that Continue reading

Wins

Set of the Year 2019Keating Chambers has again won the Legal 500 Construction and Energy Set of the Year Award[1]. My colleagues in Chambers do indeed represent a formidable cadre of construction law expertise.[2]

That is good news, of course. Also good news is that I have been obtaining some good results for clients here in Australia, including a couple this week. But neither in litigation. One was a result obtained by adjudication, and another by means of mediation. It has been remarked many times that litigation is an extraordinarily Continue reading

Coggins Wins

Jeremy CogginsI was very pleased to see that my friend Jeremy Coggins[1] won the Brooking prize this year with his paper ‘Levelling the Playing Field’ – A proposal for the regulation of unfair contract terms in construction contracts. It is hard to disagree with the thrust of what Jeremy suggests.

Although generally not a fan of government interference in commercial affairs, there is, it seems to me, a very strong case for some more legislation in this field, particularly since the courts appear to be becoming more weak-kneed in their use of the available legal principles to prevent abuse of power in the construction contract arena. Jeremy is kind enough in his paper to mention the contribution I made to the recent Murray review, suggesting some wording for an effective statutory ban.[2]

Some statutory bans certainly have been effective. In particular, the bans both in the UK and in Australasia on Continue reading

Mann down

langtree courtThe decision of the High Court in Mann v Patterson [2019] HCA 32 came out today. It makes depressing reading for anybody interested in fair play in the construction industry in Australia.

The basic point can be explained fairly simply. If, during the course of a building contract, an owner is in severe breach of the terms of the contract, then the builder is entitled to terminate the contract at common law. The builder does not have to terminate, of course, but has an election; he can either leave the contract in place, or he can accept the owner’s conduct as repudiatory such that the contract is then at an end.

Then, according to the law as it has existed in common law jurisdictions for well over a hundred years, the builder has another choice. He can either elect to recover the amount of the contract price that he has earned up to the time of the termination, and also recover damages for breach of contract. Or, if he wants, he can instead take the much simpley course of claiming a quantum meruit for the whole of the work that he has done on the contract which has been repudiated.

The effect of this latest decision is to remove this second election, at any rate in large measure. The builder cannot now recover a quantum meruit for the whole of the work that he has done. In large measure (I get back to this in a moment) he has to be satisfied with whatever the contract permitted by way of recovery for the work done prior to the determination.

The effect of the decision is that the courts have shown common cause with owners who are in serious breach of their contracts, and the decision will cause further pain for innocent builders.

For the benefit of readers of this Continue reading