Congratulations to Ben Cowling - construction law ‘Young Gun'
Ben Cowling, a Senior Associate at Corrs Chambers Westgarth in Melbourne and Master of Construction Law student, has been named as a ‘Young Gun' in Lawyers Weekly (19 September 2008, page 24). Ben has been recognised for his work on some of the largest legal disputes and transactions in the infrastructure sector, including the BassGas project (acting for Clough in its $300M arbitration) and Minerva project (acting for AJ Lucas in a Supreme Court litigation). He is currently on secondment to the Victorian State Government as Legal Advisor to the $3.1B Desalination Project.

Proportionate liability:  towards a national scheme?

The schemes for proportionate liability (under Part IVAA of the Wrongs Act (Vic) and equivalent legislation at Commonwealth and State level) have generated a great deal of controversy since their introduction half a decade ago.  One of the key criticisms has been the lack of a consistent approach in the legislation enacted in the various States and Territories. 

In a significant step towards such a national approach, the Standing Committee of Attorneys General has authorised the publication on its website of Reports prepared by Tony Horan and Professor JLR Davis.  Mr Horan is a Senior Fellow within our Program and one of the coordinators of Construction Risk:  Allocation and Insurance.  He was, when writing his report, a Partner at DLA Phillips Fox and is now at the Melbourne Bar.  Professor Davis is Emeritus Professor at ANU.

You will be aware of the many detailed critiques of the schemes published in recent years, including those by our Senior Fellow Andrew Stephenson and Justices Byrne (the Patron of our Program) and McDougall.  Much of the criticism has been directed against the schemes in their entirety and, in particular, their potential to unravel centuries of jurisprudence relating to joint and several liability.  Other critiques have focused on the workability (or otherwise) of particular aspects, including the lack of consistency of approaches between different Australian jurisdictions (for example, the fact that some schemes allow for contracting out whereas others do not).

The next chapter in the history of this crucial area seems set to be written, based upon two very significant works produced for the National Justice CEOs Group during the past 12 months.  They have now been published on the SCAG website.  Mr Horan's Report canvasses the history, purpose and commentary in respect of the schemes, and provides recommendations as to its review.  Professor Davis's Report reviews Mr Horan's Report and puts forward more detailed proposals.

The Reports will no doubt themselves be the subject of detailed study and analysis.  I think it worthwhile making the following observations at the outset:

·        the terms of reference for Mr Horan's Report were to seek to make the legislation "more workable, consistent and certain" - hence, his Report (and Professor Davis's Report which builds upon it) are not directed towards whether there should be proportionate liability legislation at all; rather, as Mr Horan notes, the underlying principles are to ensure that:

o       the effect of the legislation is consistent with the purpose for which it was enacted;

o       the meaning of the legislation is clear; and

o       the legislation is workable in practice;

·        both Reports (and especially Mr Horan's) provide a very valuable repository of materials relevant to the schemes, including the legislation itself, cases upon it and critiques; and

·        12 proposals are set out in Professor Davis's Report, including (as proposal 11) that "the legislation in all jurisdictions prohibit parties to whom it would otherwise be applicable from contracting out of its terms".

MB 3 Sep 08