Episode 18 - Lessons from Success and Failure in Major Construction Projects

Based on the V601 v Probuild case decided in the Victorian Supreme Court in December 2021, Ben McLeod presented this talk in Melbourne in February 2023.

Ben was part of the team who acted successfully for Probuild in this matter and outlines a range of complex issues, including how Principals and Superintendents should ensure that a contractor’s claims are assessed fairly; the consequences that can flow from the Superintendent's independence having been compromised; and the Court’s approach to ‘constructive acceleration’ claims.

Ben McLeod
Partner at Piper Alderman, Melbourne.
https://www.linkedin.com/in/ben-mcleod-99a0b951/

Ben is a strategic advisor across all stages of the project lifecycle, from procurement and contract administration through to dispute resolution and avoidance. He has particular expertise in the strategic management and resolution of complex disputes, having acted for principals, contractors and consultants on major infrastructure projects in Australia and internationally. He has assisted clients across a range of industries, including transport, utilities, property development and power (renewable and non-renewable).

In 2022, Ben was listed by Doyle’s Guide as a recommended ‘back end’ Construction and Infrastructure lawyer in Victoria. He was also named as a ‘Rising Star’ by Doyle’s Guide in 2021.

This podcast is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice about your specific circumstances. The views expressed in these podcasts are the speakers' own. They should not be taken as recommendations of the Society of Construction Law Australia.

Stepping back from a process to see the complex interactions happening between all of the parties can lead to insights that could prevent potentially catastrophic consequences. The failure of a pedestrian bridge at Florida International University led to 6 fatalities. In this talk, Sean explore the failures in the design, peer review and construction phases of the project, and the need for investigations to look into organisational causes of failure as well as the technical causes.

Sean Brady, Managing Director, Brady Heywood Pty Ltd
https://www.linkedin.com/in/sean-brady-11a95427/

If you’d like to learn more about complexity then be sure and check out Sean’s Simplifying Complexity Podcast at:
Apple Podcasts:  https://podcasts.apple.com/au/podcast/simplifying-complexity/id1651582236
Spotify:  https://open.spotify.com/show/3SfqApqNW3wNXcg2E7etij

This podcast is for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  You should always obtain legal advice about your specific circumstances.  The views expressed in these podcasts are the speakers' own.  They should not be taken as recommendations of the Society of Construction Law Australia.

Is the Australian industry’s Standard Form broken? If so, why and can it be fixed? The training and learning involved to build confidence in a new industry contract should be considered when making changes.
Scott Alden presents his talk “When opportunity knocks: Is NEC4 the Answer to Australia’s Broken Standard form ?”

This talk was voted by attendees as one of the Top 3 highlights of our national conference “Getting Risk Right”, held in Hobart, Tasmania in May 2022.

Scott Alden, Partner - Construction Team (Sydney), HWL Ebsworth Lawyers
https://www.linkedin.com/in/scott-alden-5884432b/

HWL Edsworth Lawyers
https://hwlebsworth.com.au/
The Australian independent commercial law firm of choice for market leading expertise and exceptional value.

This podcast is for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  You should always obtain legal advice about your specific circumstances.  The views expressed in these podcasts are the speakers' own.  They should not be taken as recommendations of the Society of Construction Law Australia.

The past, present and future of collaborative contracting models.

One of the audience-selected highlights of our national conference “Getting Risk Right”, held in Hobart, Tasmania in May 2022.

Sean Kelly and Yazmin Judd focus on the results of an anonymous industry survey which was completed by public and private sector employees, lawyers, engineers, consultants, contractors and subcontractors.

Sean Kelly, Special Counsel
https://www.linkedin.com/in/sean-kelly-450296a4/

Sean is a commercial lawyer specialising in the construction and infrastructure sectors. He acts for local and international clients regarding claims and dispute resolution on complex construction and infrastructure projects.

Sean is also a guest lecturer at the University of Melbourne, and presents at seminars and conferences on developments in the construction and infrastructure sectors.

Yazmin Judd, Lawyer
https://www.linkedin.com/in/yazmin-judd-b3b049149/

Clayton Utz
https://www.claytonutz.com/

Clayton Utz is a leading Australian law firm with a confident and engaging approach, and a genuine commitment to client service.

This podcast is for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  You should always obtain legal advice about your specific circumstances.  The views expressed in these podcasts are the speakers' own.  They should not be taken as recommendations of the Society of Construction Law Australia.

An exercise in highly paid lawyers dancing on the head of a pin. We deep dive into the roles the law, the lawyers and the courts played in this scandal.

This wasn’t a case of a few bad apples, the whole system was stacked against the Subpostmasters. The system silenced, suppressed and hid information and nothing like justice was achieved.

At some point the overriding duty to the court owed by lawyers got lost in a fog of protecting the client at all costs. The barrister acting for the Sub-postmasters, after reading internal Post Office legal advice from 2014, said “In my almost 30 years’ experience at the bar I have never come across information that has been so electrifying. It almost caused my teeth to fall out when I read it.”

It took 20 years and a class action for Tracy Felstead to recover a mere £17,000 pounds for her wrongful conviction in 2001.

And this story is far from over yet. The Solicitors Regulatory Authority is a core participant in the Post Office Horizon IT inquiry which is probing the in house and external lawyers for potential wrongdoing.

Source Material

Nick Wallis, ‘The Great Post Office Scandal’, 2021, Bath Publishing.

Paul Marshall, ‘Failed Justice - how commercial interest displaced the interests of justice in the Post Office case’, 30 March 2022, Queen’s University Belfast, Institute of Legal Studies

Disclaimer
This podcast is for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  You should always obtain legal advice about your specific circumstances.  The views expressed in these podcasts are the speakers' own.  They should not be taken as recommendations of the Society of Construction Law Australia

In the opening I introduced that the Horizon software was the main deliverable of a billion pound PFI project let by the Post Office. The contract was awarded in May 1996 to Fujitsu who won the job because of their winning offer to bear the software development costs in exchange for 8 years guaranteed transaction fee every time a customer of the Department of Social Service used their new swipe card in a Post Office.

It doesn’t take long for the deal and the software to go off the rails.

How on earth did this come about and why is it such a hard lesson for us to learn that it can be the technology at fault, not user error.

Source Material

Nick Wallis, ‘The Great Post Office Scandal’, 2021, Bath Publishing.

Paul Marshall, ‘Failed Justice - how commercial interest displaced the interests of justice in the Post Office case’, 30 March 2022, Queen’s University Belfast, Institute of Legal Studies

Disclaimer

This podcast is for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  You should always obtain legal advice about your specific circumstances.  The views expressed in these podcasts are the speakers' own.  They should not be taken as recommendations of the Society of Construction Law Australia.

The UK Post Office Scandal – Megaprojects, IT Systems and the Law

This story is about the most widespread miscarriage of justice in English history. The scale of this story exceeds the witch trials of the 16th and 17th century.

This story is relevant to every construction lawyer in Australia because it is a story rooted in how we deliver major projects, how we think about technology and its reliability and how we compromise our fundamental obligation as lawyers to act in the best interests of the law.

This story will make you shake your head in disbelief. But as you listen to it, you need to keep in mind, all the way through, that there were lawyers, just like you and me, doing what they thought was their job.

And this story is about regular people who worked for and ran Post Offices all across the UK who were prosecuted for theft by the Post Office after the launch of the Post Offices’ first digital system, called Horizon. Almost 700 people were successfully prosecuted for theft by the Post Office. But they hadn’t don’t it and it took 20 years to prove their innocence.

Source Material
Nick Wallis, ‘The Great Post Office Scandal’, 2021, Bath Publishing.

Paul Marshall, ‘Failed Justice - how commercial interest displaced the interests of justice in the Post Office case’, 30 March 2022, Queen’s University Belfast, Institute of Legal Studies

Disclaimer
This podcast is for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  You should always obtain legal advice about your specific circumstances.  The views expressed in these podcasts are the speakers' own.  They should not be taken as recommendations of the Society of Construction Law Australia.

Valuable insights into the health and wellbeing of those working in the Australian construction industry and what legal practitioners can do to improve the status quo. Dr. Natalie Galea presents the keynote for our 2022 national conference “ Getting Risk Right”, held in Hobart, Tasmania in May 2022.

Fully titled “I would like to see my son more than I see my site manager: tackling human rights risks in the Australian construction sector”. Dr. Galea outlines her industry research project into employment and workplace cultures within the construction industry. Highlighting dramatic statistics about the current shortfall in recruitment for major infrastructure projects, she presents findings from her own industry study on the positives effects of changes to entrenched working practices.

Dr Natalie Galea on LinkedIn: https://www.linkedin.com/in/nataliegalea/

Natalie Galea’s research focuses on gender equality and human rights in the Australian construction sector, and human rights and athlete abuse in elite sport.  She developed Cultivate Sponsorship, a one of a kind sponsorship program to fix male dominated sectors. If you would like more information about Cultivate, sponsorship and it's effectiveness, contact me or check out www.cultivatesponsorship.com. Before she studied the construction sector, she worked in it. Natalie spent 15 years delivering building, civil, defence and mining projects in Australia and the Middle East and North Africa. 

This podcast is for reference purposes only.  It does not constitute legal advice and should not be relied upon as such.  You should always obtain legal advice about your specific circumstances.  The views expressed in these podcasts are the speakers' own.  They should not be taken as recommendations of the Society of Construction Law Australia.

For those who missed it, this podcast is a recording of our recent webinar featuring Kiri Parr, Tony Barry and Rob Nelson-Williams. In it, they discuss the internationally renowned and widely used FIDIC suite of Contracts and their potential for wider adoption in Australia.

This podcast is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice about your specific circumstances. The views expressed in these podcasts are the speakers' own. They should not be taken as recommendations of the Society of Construction Law Australia.

Jon Davies, CEO of the Australian Constructors Association, discusses the significant challenges facing the construction industry and ACA's plan to help fix them.

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This podcast is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice about your specific circumstances. The views expressed in these podcasts are the speakers' own. They should not be taken as recommendations of the Society of Construction Law Australia