Construction Dispute Resolution

This subject is not offered in 2014.

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

This subject provides both a broad overview of the range of dispute resolution options available to parties in relation to construction disputes, also detailed insights into the practical aspects of, and policy-drivers for, those options. It provides an opportunity to understand how to efficiently conduct construction dispute procedures in various Australian courts, arbitration (both domestic and international) and expert determination. It also engages with key industry debates about the rational reform of dispute processes in Australia and internationally. The lecturers bring extensive dispute resolution expertise to the subject and have been involved in many of Australia’s most significant construction-related disputes.

Principal topics will include:

• Practice and procedure in the Supreme Courts of New South Wales and Victoria and the Federal Court of Australia, considering differences and assessing where best practice lies
• Evidence for construction cases—how to identify what is necessary for the principal claims that arise in construction case (e.g. variations, delay, prolongation and latent conditions claims)
• Special issues relating to expert evidence and practical issues arising from the rules of evidence
• Pleading claims
• Problems with Discovery and how they may be solved. This involves a review of the policy considerations which underlie the recent changes to the Federal Court Rules and the Victorian Supreme Court Rules as well as practice in International Arbitration
• Managing the trial or hearing so that it is as efficient as possible
• The appeal process that is available
• Domestic arbitration legislative framework: why it is currently out of fashion and how it can be improved.

A student who has successfully completed this subject should:

• Understand the provenance of forms of dispute resolution in the construction industry
• Be familiar with and understand the legislation governing construction dispute resolution
• Be able to manage all stages of a construction litigation, arbitration, expert determination or adjudication
• Be able to critically assess and advise on different tactics and strategies for construction dispute resolution.

• Take-home examination (100%) (25 – 28 July)
  or
• 10,000 word research paper (100%) (20 August) on a topic approved by the subject coordinator

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Details regarding any prescribed texts will be provided prior to the commencement of the subject.

This subject is not available as a breadth subject.