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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ItemContract Damages for Defective Construction Work: An Unsolvable Puzzle?(Society of Construction Law, 2022)The paper considers the assessment of damages for defective work and the puzzle posed by rectification damages. It outlines the high-level principles applicable to it in the UK and Australia, and goes on to focus on the 2017 Australian decision of Stone v Chappel. In that case the court distilled the factors relevant to whether it is reasonable to award damages based upon the rectification measure, and provided a ‘shopping list’ of principles, which has been recently borne out in Xtraordinary Constructions Pty Ltd v Luppino. The paper suggests that the approach taken in Luppino demonstrates that the list in Stone is sufficiently flexible and robust and is worthy of consideration in other jurisdictions. However, the author highlights a risk that the codification of factors as expounded in Stone could undermine considerations which should be overarching, such as the need for the building to be safe for all occupants. He warns that a potential disparity in bargaining positions could encourage builders to reflect these factors in their contracts in order to preclude arguments that residents should expect anything better than a baseline level of quality. For these reasons, the paper suggests that it should be an overriding factor within any adopted menu of elements that rectification 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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ItemHome is Where the Heart(ache) is: Building a Regulatory Regime for Residential Construction Which More Effectively Meets Community Expectations for Occupant Health and Safety( 2019)This thesis examines the ability of legal regulation to address the threat posed by residential construction defects to the health and safety of dwelling occupants. It focuses on the experience in England and the Australian state of Victoria. In these jurisdictions, defects are endemic and their consequences occasionally catastrophic. The thesis uses regulatory theory - especially, the pluralist perspectives of 'responsive' and 'smart' regulatory scholarship - as the touchstone for its analysis. This analysis allows the thesis to make several novel contributions to the ongoing consideration of the vital societal problem posed by residential construction defects. These include, principally, the thesis's establishment of a regulatory goal that dwellings protect occupants' health and safety during the life of the building, and its critique of the effectiveness of the existing regulatory regimes in England and Victoria in achieving that goal. The thesis synthesises community expectations in order to identify this regulatory goal. It proposes that an effective regulatory regime to achieve this goal should incorporate six elements: information, responsibility, standards-setting, competence, quality assurance, and rectification. It advocates deployment of a pluralist mix of tools, appropriate to the jurisdiction, in order for those elements to operate effectively within the regime. The thesis also analyses the regulatory regimes in England and Victoria, as they stood at 31 December 2018 (including reforms proposed to those regimes as at that date). It concludes that, whilst these regimes are broadly aligned with achievement of the regulatory goal, further reforms are necessary in order to entrench an appropriately-robust commitment to the paramountcy of the goal amongst policy-makers, the construction industry, and the broader community.
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ItemStandard forms of contract in the Australian construction industry: Research report(Melbourne Law School, 2014)
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