Melbourne Law School - Research Publications
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ItemBoulevards of broken dreams(Law Institute of Victoria, 2024-03-01)Lawyers commencing legal action to enforce clients' rights can feel like they are confronted with an impenetrable maze. A raft of regulatory reforms proposed or in train at the start of 2024 offer a pathway through that, maze, but one which requires careful navigation.
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ItemForty Years on: The International Construction Law Review, 1983-2023(Informa Intelligence, 2023)In this article, we look back at the 40 volumes – comprising (on a conservative estimate) around 1,000 feature articles, 20,000 pages and six million words – which constitutes the first 40 years of the ICLR. Whilst we cannot offer to provide a full summary of that opus, we are able to give some insights here into how the ICLR has played a crucially-important role in both reflecting, and leading, construction law reforms and scholarship.
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ItemBringing Home Reform: A Principles-Based Approach to Regulation of Construction for Residents' Safety(Monash University, 2023)This article contributes to construction regulatory reform programmes currently underway in Australia, the UK and beyond. It does so by proposing six regulatory design principles in pursuit of a goal of ensuring that dwellings are built so as to keep residents safe. The article critically examines perspectives from regulatory theory, workplace health and safety, and civil aviation to distil the six principles. It concludes by offering an example of how the principles may holistically be applied as a tool for regulatory analysis and design in the context of construction practitioner competence.
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ItemContract Damages for Defective Construction Work: An Unsolvable Puzzle?(Thomson Reuters (Professional), 2022-11-11)This article considers how the common law decides upon the appropriate measure of damages where there is a breach of contract resulting in defective construction work. It focuses upon recent case law from South Australia offering a “menu” of factors which can be taken into account in deciding whether damages based upon the cost of rectification of the work ought to be awarded. This “menu” is by no means unproblematic; it sits in tension with High Court authority which leaves unresolved the more nuanced aspects of how parties’ performance interests are to be upheld by way of damages awards. Hence, the “puzzle” aspect of the article’s title. The article concludes that the “menu” is worthy of consideration outside of South Australia, but should include an overriding factor that rectification will be deemed reasonable to the extent that the defect threatens the health and safety of occupants of the building.
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ItemConstruction Regulatory Reform: Where to from here?(Informa Intelligence, 2022)During the latter part of the 2010s, a series of high-profile residential building failures, including the Grenfell Tower tragedy in London, turned the spotlight onto the deficiencies in construction regulation. It has also shone light onto the endemic level of defects in dwellings, which until now has been largely a matter of private angst for owners and occupiers. In the 2020s, jurisdictions across the world are coming to terms with how difficult a regulatory problem the achievement of safe, defects-free homes is. This is especially because “regulation” in the context of construction inevitably involves a dynamic combination of legislation, common law and industry practice. As has been diagnosed by series of expert reviews, much of the regulatory challenge is bound up in the ever-present commercial and technical tensions in the industry. These tensions are in many cases magnified by the industrialised scale of urban residential building, rendering the delivery of safe, affordable housing vulnerable to international supply chains and global financial pressures. This paper puts these developments in their broader regulatory and international context, offering insights from academics and practitioners who have worked with residents, policymakers and the industry across Australia, England and Wales, and Ireland.
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Item"How is that Even Possible?" Raising Construction Regulation from the Ashes of Grenfell Tower(Informa Intelligence, 2018-03-28)The paper explores the challenge for construction law regulation identified in the wake of the Grenfell disaster, and similar residential building fires around the world. At its heart, the challenge is to devise effective legal means by which dwellings can be built, and maintained, so that they remain safe for their residents. Achievement of this ambition may appear straightforward; however, the complex interplay of commercial, technical and legal pressures involved in modern urban developments means that the regulatory regime needs to be carefully calibrated. Matthew Bell examines the approach taken to re-thinking the regulatory system for residential building by reviews which have been instigated as a result of these fires, in the UK and Australia. Prominent amongst these reviews is that of Dame Judith Hackitt in the UK, which published its Interim Report in December 2017. This Report shows a clear intention towards an holistic reassessment of measures and philosophies which underpin the current regulatory regime, including performance-based specification. As the paper notes, a similar willingness to reassess regulatory strategies has been shown in Australia, with significant reforms recently enacted or in prospect.
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ItemInternational construction law as a 'Private Legal System': emerging from the 'primordial soup' in the search for coherence(The Romanian Society of Construction Law, 2016)
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ItemConstruction defects in apartment blocks: Whose problem?(LexisNexis Australia, 2021)This article contributes to comparative analysis in pursuit of effective reforms to the regulatory regimes directed at the minimisation of defective work, and its consequences, in respect of high-rise apartment buildings. Its subject jurisdictions are England and Wales and the Australian states of New South Wales and Victoria. The centrepiece of the article is a case study of an apartment development in northwest England which has occupied the courts for several years without residents yet being able to return to their defects-riddled homes. We conclude that tenure differences between long leasehold in England and Wales and strata title (or equivalent) in Australia are less significant in explaining this negative outcome than the greater rights of action made available by the NSW and Victorian regimes, against builders or other parties who contribute to defects.
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ItemMajor Security of Payment Changes on their Way in South Australia(Swap Exchange Pty Ltd and Society of Construction Law Australia Ltd, 2021)