Construction Dispute Resolution

This subject has the following teaching availabilities in 2016:

This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.

136-150 hours

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

Melbourne Law Masters Students: None

JD Students: Successful completion of the below subject:

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 Student Equity and Disability Support.

This subject provides a broad overview of the range of dispute resolution options available to parties in relation to construction disputes as well as detailed insights into the practical aspects and policy-drivers for these 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 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 (eg 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: how it can be used to improve the efficiency of dispute resolution.

A student who has successfully completed this subject will:

• Have an advanced and integrated understanding of the legal, commercial and technical aspects which lead to disputes in construction projects
• Have enhanced their expert and specialised cognitive and technical skills required to practise as interdisciplinary professionals in the construction industry
• Be familiar with, be able to critically reflect on, and be confident in applying, means of resolving construction disputes
• Be able to demonstrate the analytical and communication skills required to independently investigate, examine and synthesise existing and emerging legal issues relating to dispute resolution in construction projects.

• Take-home examination (5,000-6,000 words as specified in the subject reading guide) (100%) (23 - 26 September)
  or
• 10,000 word research paper (100%) (16 November) on a topic approved by the subject coordinator

A minimum of 75% attendance is a hurdle requirement.

Specialist printed materials will be made available free of charge from the Melbourne Law School prior to the pre-teaching period.

This subject is not available as a breadth subject.