21 August 2017
Jaclyn Masters: Commentator – Corrs Chambers Westgarth – Senior Associate, Melbourne
Shaun Bailey: Corrs Chambers Westgarth – Construction Partner, Sydney
Raeesa Rawal: Corrs Chambers Westgarth – Associate, Sydney (on secondment – Germany, Gleiss Lutz)
JACLYN: Hello and welcome to High Vis, the Corrs Chambers Westgarth Construction podcast. My name is Jaclyn Masters and I’m a senior associate in the construction team here at Corrs. Late last month, the Society of Construction Law Australia held its national conference on the Gold Coast with the theme of the conference being the new wave capturing the new wave of infrastructure growth taking place across the country. To speak to some of the key takeaways from the conference and what they mean for clients in the construction industry, I am joined today by my colleagues, Shaun Bailey, a partner in our Sydney team and Raeesa Rawal, an associate in our Sydney team currently on secondment in Germany at Gleiss Lutz. Raeesa, along with Antoine Smiley, was the recipient of the 2017 Brooking Prize essay competition for the paper “Locked Behind Time Bars”. So welcome to both Raeesa and Shaun.
Shaun, we heard some exciting presentations on a range of topics facing Australia in the construction industry. What were some of the key themes that you saw emerging from the conference?
SHAUN: What really stood out was the desire to embrace new technology. It wasn’t just the construction professionals either. It’s also their professional advisors and the discussion wasn’t just about looking for different ways to do things. Technological advancement was discussed as a pathway to transformational change in how we live, where we live and what we do. This wasn’t a barren detached discussion of the law by any means.
JACLYN: The keynote address at the conference looked at the development of the Hyperloop and the efficiencies it offers in the transport sector. Shaun, why do you think this is a particularly exciting development for Australia?
SHAUN: Once again, it’s the Sydney/Melbourne corridor that came up for discussion. For more than 30 years now we’ve been talking about servicing the corridor with high speed rail. All of a sudden, new technologies are now knocking at the door and we heard from Sean Duggan of Ultraspeed Australia who really challenged the orthodox view of what our future might look like. Just imagine the ability to move people on this corridor in under an hour between the Sydney/Melbourne CBDs. Extending the corridor to Newcastle and Geelong and passing through Port Botany you’re really adding freight and containers to the mix. Technology is the economic enabler here. Take friction out of the equation with magnetic levitation and guidance, take aerodynamic resistance out of the equation by running the pods through low pressure tubes and Ultraspeed is talking about speeds over a 1000kmh. This is 2½ times faster than high speed rail. That kind of speed opens up Shepparton, Wagga and Albury/Wodonga and their surrounding districts as dormitory suburbs for work and projects in Sydney, Canberra and Melbourne. Indeed, it also opens up the economic opportunity for those rural towns along the corridor. Another aspect that I found to be of great interest is that Ultraspeed is talking about lower land take than high speed rail. Capital costs of up to 25% less than high speed rail. Operational costs of up to 60% less than high speed rail. Fast construction times and lower maintenance requirements.
JACLYN: One of the sessions that I found particularly interesting at the conference was the data analytics session that KordaMentha delivered. Many of our construction industry clients may be aware of the use of data analytics in a disputes context with it being utilised on platforms like Ringtail. One of the opportunities that was mentioned at the conference was that this can now be used to monitor projects in real time to avoid claims or prepare claims as they’re occurring. This promises some real commercial and cost saving opportunities for clients in this area. Shaun, what were some of your thoughts on this?
SHAUN: Well I must confess that I’ve sometimes been a little sceptical about some of the grander claims associated with the rise of technology so I found the discussion to be quite thought provoking. Artificial intelligence was really at the heart of the discussion. The common thread that ran through the presentations was technology being used to drive productivity gains, cost reduction and to improve workplace safety. We saw some examples at site level of the kind of technology that is being used such as body sensors that detect physical risks that can lead to injury and sickness. Laing O’Rourke’s toolbox spotter was also interesting - apparently it assists in detecting people on railway lines. This was a very practical example of the beneficial use of technology. Driver Trett’s discussion concerning the application of IATA project planning was also fascinating. To my mind, the use of principles and processes that are derived from nature to develop algorithms that underline modern AI really start to distinguish these processes from simple logic based coding exercises. We heard about the Darrell and Wallace derived genetic algorithm, the Ant algorithm which apparently is modelled on the processes used by ants to map out routes to their food sources and we heard about particle swarm optimisation which is based on the behaviour of swarming animals. We saw an example of how some of these models can be used in optimising project scheduling. What was particularly interesting was the impact on scheduling once the concept of mutation was introduced into the analysis. Driver Trett showed us that while such an analysis couldn’t guarantee that a project would be delivered on time it could clearly optimise the mitigation of the impact of a delay. Not only could this assist some project planners to develop better outcomes but it is also of great assistance in testing whether the mitigation offered is truly best for project and value for money. Perhaps of more direct interest to the lawyers was the discussion on predictive coding in construction litigation. As Justice Vickery, Jenny Baker, Alicia Whey and Heidi Swickert pointed out predictive coding when implemented thoughtfully has the potential to reduce litigation costs dramatically directly through the reduction and discovery cost and indirectly through the greater accuracy is achieved. Justice Vickery’s 2016 decision in McConnell Dowell Constructions Australia and Santam (No. 1) looked at the question and endorsed the benefits of predictive coding in appropriate circumstances. This is great news for litigants in the event that they’re able to work together in search of mutual benefit.
JACLYN: And what about the use of AI on projects? Are construction lawyers going to become obsolete?
SHAUN: Never! As artificial intelligence grows and learns it’s becoming a great tool to assist us. It’s helping us to reach greater accuracy in all manner of research. It’s helping us with new ways of addressing problems, understanding the data available to us and in doing so we’re increasing efficiency but as construction lawyers I think that we’re so much more than just technical analysts. We do more than just give an answer to a question. We exercise judgment on esoteric notions such as reasonableness, fairness, good faith and the equities of a situation which so often inform the outcome. We’re strategists, we’re project managers, we understand the human element whether it be the business relationship that’s in play or whether it’s working out how best to deal with personalities. I think that the technology will help us to do more, to do it better and to do it for less.
JACLYN: One of the other presentations that really stood out during the conference was delivered by Dr Sean Brady and Dr Brady looked at how we make judgments based on the prism of our expertise be that as lawyers or engineers or other professions. Shaun what did you take from Dr Brady’s presentation?
SHAUN: Dr Brady often seems to run the first conference session on a Saturday morning. It’s just as well that he’s such an engaging speaker. With such a technological focus to the conference, Dr Brady reminded us of the need for human intellectual input and the need for that input to be effective. Dr Brady spoke of a structural collapse brought about by ineffective computerised structural calculations. The computer didn’t get the answer wrong rather the operator fed it the wrong input. At one level this might support the notion whether we’re better off placing our future into the hands of artificial intelligence with a view to avoiding such mistakes but I was surprised to learn that apparently even the fastest computers struggle to match the speed of the human brain to undertake calculations. What I took from Dr Brady was that as new technologies emerge we need to understand how our thinking is primed to respond to a given situation and we need to be prepared to challenge our own thinking.
JACLYN: Raeesa, if we can turn to you now. We were fortunate to hear both yourself and Antoine Smiley present your Brooking Prize winning paper “Locked Behind Time Bars”. We’re seeing time bars as a particularly pertinent issue in the context of the John Murray National Security of Payment Legislation Review this year. Can you tell us a little bit about what prompted you and Antoine to write this paper?
RAEESA: Thanks Jaclyn. Antoine Smiley and I had previously researched time bars in-depth. Like many construction lawyers, this is necessary to provide advice to clients who frequently come up against these causes or seek to enforce them, sometimes with quite harsh consequences. When held up against other areas of contract law which prevents such harsh outcomes such as the doctrine of penalties it occurred to us that this was an area in which a better balance could be struck through tailored legislation.
JACLYN: And Raeesa what is the key message that comes out of your paper?
RAEESA: In essence, the paper proposes a model for legislative intervention in the area of time bars. It takes the reader on a journey and begins by looking at the judicially recognised purpose of time bars and then the common ways that claimants seek to overcome them. We point out that a time bar is always enforceable as a term of contract and so the ways to escape their consequences are merely techniques to circumvent rather than cut down a time bar. Absent these narrow methods of circumvention, time bars remain enforceable regardless of their consequences. We then take the reader across the world looking at other jurisdictions and how they deal with time bars and whether there are lessons to be learned from them. We also look at the experience in other industries in Australia where legislature has chosen to intervene in a market and prohibit or limit the effect of setting contractual clauses. Our paper concludes with the proposed legislative model that seeks to introduce a safety net to aid a claimant in those harsher cases. The model seeks to strike a balance between, on one hand, the party’s freedom of contract and the important purpose the time bar serve in a construction contract and on the other hand, the need to provide a remedy against the imposition of a time bar without recognised purposes not being served at all. Antoine and I will be discussing our paper in further detail in an upcoming Corrs High Vis podcast.
JACLYN: Thank you for joining me today Shaun and Raeesa. To our listeners, we hope you will join us again for the next episode of Corrs High Vis.
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.
This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.