Australian security of payment legislation: impact of inconsistent case law

In Australia, a supreme court has a supervisory role over the statutory adjudication process that has been established within the security of payment legislation. In this role, the courts have quashed many adjudication determinations on the grounds of jurisdictional error in recent years. This is a problem as the courts’ involvement in statutory adjudication is contrary to the object of the legislation. When reviewing adjudication determinations, the courts have adopted different approaches with respect to determining the role of adjudicators and the essential jurisdictional facts that must exist in order for an adjudicator to have jurisdiction to hear a referred disputed matter. This diversification of judicial interpretation with respect to jurisdictional error is confusing, not only to construction professionals, but also to many lawyers. Via a desktop study– where the evidence is mainly garnered from case law, governmental reports and commentaries – this paper reviews the legal complexities involved in diagnosing jurisdictional errors. In doing so, the paper aims to answer the question as to why the adjudication process has become bogged down in the quagmire of judicial review. The paper concludes that the evolving inconsistency of case law in relation to statutory adjudication is a crucial factor contributing to the erosion of the object of the security of payment legislation in Australia. Moving forward, the paper argues that establishing a legislative review mechanism of jurisdictional challenges may be sufficient to address this problem

Examining the approaches to diminish judicial intervention in statutory adjudication in Australia

In Australia, statutory construction adjudication is a fast payment dispute resolution process designed to keep the cash flowing down the hierarchical contractual chain in construction projects. Its rapid, highly regulatory and temporarily binding nature have led to it being often described as a ‘quick and dirty’ process that delivers ‘rough and ready’ justice. Adjudicators often have to grapple with complex legal issues related to jurisdictional facts and interpretation of contract provisions, though the majority of them are not legally trained. This has often led to a poor quality of adjudication outcome for large and complex payment claims which has, in turn, led to a mounting dissatisfaction due to the many judicial challenges to adjudicators’ determinations seen in recent years. The evolving tension between the object of the security of payment legislation and excessive involvement of the courts has often been the subject of comment by the judiciary. This paper aims to examine the legislative and judicial approaches to support the object of the security of payment legislation to ease cash flow. The paper adopts a desktop study approach whereby evidence is gathered from three primary sources – judicial decisions, academic publications and governmental reports. The paper concludes that there is a need to adopt other measures which can provide more convenient relief to aggrieved parties to an adjudication process, such that the adjudication process is kept away from the courts as far as is possible. Specifically, it is proposed that a well-designed expanded legislative review scheme of allegedly flawed adjudication, based on that provided in the Western Australian legislation, might stand as a promising remedy to eliminate the evolving tension

Metals detected by ICP/MS in wound tissue of war injuries without fragments in Gaza

<p>Abstract</p> <p>Background</p> <p>The amount and identity of metals incorporated into "weapons without fragments" remain undisclosed to health personnel. This poses a long-term risk of assumption and contributes to additional hazards for victims because of increased difficulties with clinical management. We assessed if there was evidence that metals are embedded in "wounds without fragments" of victims of the Israeli military operations in Gaza in 2006 and 2009.</p> <p>Methods</p> <p>Biopsies of "wounds without fragments" from clinically classified injuries, amputation (A), charred (C), burns (B), multiple piercing wounds by White Phosphorus (WP) (M), were analyzed by ICP/MS for content in 32 metals.</p> <p>Results</p> <p>Toxic and carcinogenic metals were detected in folds over control tissues in wound tissues from all injuries: in A and C wounds (Al, Ti, Cu, Sr, Ba, Co, Hg, V, Cs and Sn), in M wounds (Al, Ti, Cu, Sr, Ba, Co and Hg) and in B wounds (Co, Hg, Cs, and Sn); Pb and U in wounds of all classes; B, As, Mn, Rb, Cd, Cr, Zn in wounds of all classes, but M; Ni was in wounds of class A. Kind and amounts of metals correlate with clinical classification of injuries, exposing a specific metal signature, similar for 2006 and 2009 samples.</p> <p>Conclusions</p> <p>The presence of toxic and carcinogenic metals in wound tissue is indicative of the presence in weapon inducing the injury. Metal contamination of wounds carries unknown long term risks for survivors, and can imply effects on populations from environmental contamination. We discuss remediation strategies, and believe that these data suggest the need for epidemiological and environmental surveys.</p

Designing an artefact for sharing and reusing teaching practices in Higher Education institutions : an exploratory study

Knowledge management (KM) is considered as a significant source of success in many organisations, specifically higher education institutions. Instructors generate a considerable amount of valuable teaching-related knowledge that should be identified and shared among communities of instructors to enhance informal learning and deliver better quality teaching. However, many universities are facing difficulties in documenting, sharing and applying the teaching experiences gained by instructors. In the field of KM, a vast amount of research exists focusing on the activities of sharing knowledge, disregarding the importance of knowledge application and reuse. This research aims to close this gap by designing a system enabling instructors to share and apply teaching experiences. Therefore, we have followed a design research approach to explore meta-requirements by conducting an investigative study with instructors who work in Saudi universities. Through our exploratory study, we identified three challenges that might prevent instructors from sharing and reusing knowledge using the current communication channels: lack of access to experts and expertise, lack of structured knowledge, and lack of motivation. To overcome these challenges, a new artefact will be designed based on the resulting meta-requirements to ensure effective sharing and reuse of teaching experiences

A diplexer with direct coupled resonant junction

Conventionally, diplexers are designed by connecting two filters of different frequencies using a transmission T‐line junction which acts as a distribution network serving the individual filters. Here, a novel diplexer has been proposed and designed to utilize a directly coupled resonator as the distribution network. The directly coupled resonator is designed using two square open‐loop resonators of the same resonant frequency of 1.95 GHz. Coupling of the two resonators is achieved using a λ/4 transmission line to directly couple them. This process made the resonator pair to possess a dual‐mode resonator function, resonating at 1.85 and 2.05 GHz. Two bandpass filters are then designed in the corresponding modes of the resonator pair with 5% fractional bandwidth and coupled accordingly. This technique allowed the resonator pair to contribute to the resonant poles of the diplexer while functioning as the distribution network

Beware fast tracking complex high rise buildings

Skaik, S ORCiD: 0000-0003-2154-0201In complex high rise projects, employers tend to fast track works where construction can begin while design is still incomplete following three main phases of procurement. Shoring system and piling are firstly procured and awarded to an enabling contractor. Upon completion of enabling works, main design and traditional tendering of the second phase can be concluded in order for main construction works to commence on site. While main work is progressing, design of specialist packages will be completed and nominated subcontractors are appointed in a timely manner shaping the third phase of procurement. Such common phased construction usually results in substantial time saving in project life cycle. However, many fast track projects suffer time and cost overruns due to inherent risks of fast tracking such as design deficiencies and ambiguities in risk allocation between involved parties. This paper aims to investigate pros and cons of fast track procurement approach for complex high rise projects and examine how relevant risks are allocated among enabling contractors, main contractors, nominated subcontractors and project consultants in theory and practice. The paper will demonstrate an interesting case study of a fast track overseas super high rise building. The case study will demonstrate real problems associated with using fast tracking delivery method and involving sequential contractors. It will will discuss the taken measures by the project management team to redress problems and mitigate risks during construction. In conclusion, lessons learnt from the case study will be summarized with recommendations to have better practice of fast tracking approach in complex high rise buildings. Beware Fast Tracking Complex High Rise Buildings (PDF Download Available)

The tip of the iceberg: Jurisdiction of statutory construction adjudicators in Australia

Paying parties often rely up on jurisdictional objections as a delaying tactic, in order to “frustrate” adjudication process, which may undermine the attainment of the legislative intent of the Australian security of payment legislation. Encouraging adjudicators (who are not required to be legally trained) to determine questions relating to their jurisdiction is only the tip of the iceberg. This article explores, not only the hidden complexities associated with the jurisdiction of adjudicators, but also the unhealthy practices adopted by stakeholders as an inevitable result of lack of legislative direction and inconsistent case law on dealing with jurisdictional issues. Moving forward, the article proposes a roadmap with six identified hold points to address the problem towards necessary reform in the security of payment legislation

Australia: the East Coast model (Queensland)

The author provides an overview of statutory adjudication in Queensland, Australia

Disputes resolution: Can BIM help overcome barriers?

Skaik, S ORCiD: 0000-0003-2154-0201Many researchers consider disputes as part of the project lifecycle. Although preventative actions exist, it is not utterly possible to avoid them. Once the disputes arise, an appropriate resolution technique should be adopted. Common perception is referring to a resolution method either internally or via a third party; which may also be binding by law. The resolution process requires attention to the disputed claims. Hence, deep investigation of the claims and choosing the appropriate method is crucial for the successful project delivery and reputation of the industry. Preparation of disputed claims and resolution process also faces many debates. Conducting To effective dispute resolution requires attention to proper preparation and presentation of the incurred events. All the required information should be acquired to estimate and present the claim, for a smooth settlement. As an integrated digital model of the project, BIM, stores all the information of the projects in detail. Retrieval of the required information for the disputed issues can easily be obtained from the model. It is also possible to embed the construction schedule, change orders and variations, specifications and financial data such as cash flow along with the multidisciplinary drawings. As this model stores all the information at every particular time and phase, disputes can be concluded quick and accurate. In this research, using a case study and literature review, disputes and resolution processes are deeply studied. A BIM model is created to investigate benefits on overcoming the challenges; during claiming, and resolution of the disputes. It is seen that the claims are prepared faster and more accurate in a visualized environment provided by BIM. Furthermore, substantiating and presenting the disputes for the resolution purpose was incomparable to the traditional methods. The conclusions recommend that; even the project did not adopt a BIM model earlier; it can be created for a smooth process, during claiming and resolution of disputes