Managing Legal Risk in Construction

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.

Successful completion of either of the below subjects:

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.

Construction industry personnel and their lawyers are increasingly aware of the need to anticipate the legal implications of communication and ‘issue management’ throughout the project life cycle. This subject aims, therefore, to equip industry professionals and lawyers with the skills necessary to manage legal risk during the procurement and delivery phases. Complementing other subjects within our construction law program that examine legal risks and their management, this subject provides practical insights into key aspects of the legal/project interface, including tendering and contract preparation procedures that efficiently ‘document the deal’ and contract administration techniques that minimise disputation.

The subject lecturers are practising lawyers who have substantial expertise and experience in advising during the various phases of a project, enabling students to develop an advanced and critical understanding of this specialised area of law.

Principal topics include:

• The various stages of project inception. This will include an analysis of the role of the client, including project feasibility, financing and procurement model selection and tender preparation. It will also consider the role of the contractor in being ready for a tender, including through partnering arrangements
• The key stages of a tender, from expression of interest to requests for tender, and legal issues to be managed during this phase
• Analysis of the key project risks and their allocation and adoption between a contractor and client in negotiating a construction contract. Includes consideration of alternative approaches from contractors and clients to negotiation of these obligations
• The interface between the project management and legal disciplines, including a consideration of the ethical dilemmas that confront construction professionals. Project implementation and key steps to start a project to encourage an effective project environment
• Risk identification and mitigation strategies employed during the delivery phase and their role in avoiding unnecessary disputation
• Administering claims for time and cost under construction contracts
• Managing sub-contract risk
• Managing the ‘paper war’ during the delivery phase: legal and technical issues and the role and limits of communication between the parties (including legal privilege issues)
• A consideration of the practicalities of construction dispute resolution.

A student who has successfully completed this subject will:

• Have an advanced and integrated understanding of legal risk in relation to construction projects
• Have enhanced their expert and specialised cognitive and technical skills required to manage and advise upon legal risk in the construction industry
• Be familiar with, be able to critically reflect on, and be confident in working across, the interaction between the technical, commercial and legal aspects of construction risk
• Be able to demonstrate the research and communication skills required to independently investigate, examine and analyse existing and emerging legal issues relating to construction risk.

• Take-home examination(5,000-6,000 words as specified in the subject reading guide) (100%) (1 - 4 July)
  or
• 10,000 word research paper (100%) (8 August) 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.