Is there Any Evidence for the Rules of Evidence?

GlassIt has been remarked that it is always a mistake to argue with an idiot: the idiot will drag you down to his own level, where he will beat you on experience.

Something of the same principle applies when we construction lawyers have to litigate a construction dispute before a generalist court with little or no construction or engineering expertise. At its worst, of course, it is a court which might be hearing a criminal case one day, and a construction case the next. And one of the worst features of such a court is a propensity to apply the strict rules of evidence.

A competent and experienced construction tribunal will, for very good reason, ignore pretty much all of the rules of evidence which, in a construction case, have the capacity to waste huge amounts of time and money, and to lead to anomalous results.

What are the rules of evidence? My copy of Cross on Evidence (the 9th Australian edition) runs to 1475 pages, and I am not intending in this post, of course, to attempt to summarise them all. The one that is best known to nonlawyers is probably the rule that the past criminal record of an accused may not be disclosed to a jury. This is an aspect of the similar fact rule, that the prosecution is not permitted to put forward evidence that the accused has a propensity to commit a particular type of crime.[1] Many of them, are highly technical and subject to lengthy and complex exceptions. However, by way of very brief indicative summary, they Continue reading

Goodbye to All That

socla logoAfter several years, I have today[1] stood down as a director of the Society of Construction Law Australia. We have decided to streamline the board, and as part of that process, the directors due to retire by rotation have advanced our departure by a couple of months.

It is a mistake to stay on the board of this sort of organisation for too long, but I will miss that regular contact with friends in the construction law world in the other Australian States.

I notice that my old friend Sir Peter Coulson is also leaving the Technology and Construction Court in London. But he is not going far: he replaces Sir Rupert Jackson as the construction specialist in the English Court of Appeal. He wound up his last judgment in Grove Developments Ltd v S&T (UK) Ltd[2] thus Continue reading

It is OK to be wrong

wrongThe High Court of Australia has today handed down its judgments in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 and Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5.

The judgments run to some 60 pages, but can be summarised in a few words: adjudicators’ decisions are not subject to judicial review on the ground of non-jurisdictional error of law.

The result makes good common sense. Many (cynics might say most) decisions of adjudicators are riddled with errors, including errors of law. Unsurprising, one might think: most adjudicators are not Continue reading

Victorian Manners

Front_facade_of_the_Supreme_Court_of_VictoriaThere are several jurisdictions in Australia, each of them with its own Court of Appeal (in some jurisdictions known as a “Full Court”).  Last week I was in the Court of Appeal of the Supreme Court of Victoria.

Victoria is a strange jurisdiction. Traditionally, solicitors in Victorian trials sit in front of counsel with their backs to the bench. Wigs are worn in civil cases in the County Court, but it is a contempt to wear a wig in a civil case in the Supreme Court. They have no robing rooms in the court buildings – counsel parade through the open streets around the courts fully gowned and tabbed – sometimes wigged – like black flamingoes returned to their waters after the rain.

The Court of Appeal was rather civilised, I thought, with judges who were Continue reading

Books, Books

CLRI am grateful to the Courts Administration Authority of South Australia for entrusting me with a set of Commonwealth Law Reports, going back to Volume 1 (1903).

These days, electronic copies of law reports have largely taken over (the Supreme Court no longer needs so many sets), but there is still a residual place for bound volumes. The earlier ones are beautifully bound in leather, and there is something about reading a case in hard copy that speaks more cogently than a computer screen.

In due course, I will pass them on to Continue reading

Well, well, well!

John Chapman

John Chapman, Commissioner for Small Business, South Australia

This is interesting for South Australian construction.

The Fair Trading (Building and Construction Industry Dispute Resolution Code) Regulations 2017 was passed a week or so ago. I have only just seen it.

It contains wide powers for the Commissioner for Small Business (a bit of a misnomer, that one?) to require builders and others  involved in a construction-related dispute to participate in a government-run ADR process, and to exchange information, answer questions and contribute to the cost of  expert advice as required by the government. There is an obligation to act reasonably, fairly, honestly and cooperatively in the ADR process.

The basic expiation fee for non-compliance is $4,000. That might just the start of penalties for those who fail to co-operate.

The Minister talks about Continue reading