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International Construction Law Review

WHITE CONSTRUCTIONS PTY LTD V PBS HOLDINGS PTY LTD [2019] NSWSC 1166 ANDREW STEPHENSON AND DADO HRUSTANPASIC Corrs Chambers Westgarth, Melbourne, Australia OVERVIEW This decision is a judgment of the New South Wales Supreme Court, a first instance court in the most populous Australian state. The judge, Justice Hammerschlag, is the List Judge of the Technology and Construction List, and has considerable experience in construction law cases. Three aspects of Hammerschlag J’s decision have caught attention: (a) His Honour rejected both parties’ delay analysis methodologies, despite them being familiar approaches referred to in the Society of Construction Law Delay and Disruption Protocol (SCL protocol). The court reiterated that it is concerned with common law notions of causation and the “only appropriate method” requires paying close attention to the facts of the case to assess whether delay has been proved; (b) In so doing, His Honour acted on the advice of a non-party expert appointed by the court, a power rarely used in Australian courts; and (c) In concluding that the claimant had not proven its case, His Honour emphasised that the contemporaneous record, while stating a delay was occurring, did not record which activities were being adversely affected and could not explain how the delay event impacted on other activities. From those conclusions, one can see how the decision might have caused some surprise and controversy for parties and practitioners. In particular, it calls into question what has become the common practice of leaving questions of causation to an expert. As the Australian High Court has pointed out on a number of occasions, causation for the purposes of legal analysis is very different to causation for scientific purposes. 1 However, irrespective of whether the causation analysis is being done for the purposes of the law or science, both require a proper analysis of the facts. In this note we will give some context to and explore His Honour’s conclusions. Overall, our respectful view is that His Honour is plainly correct 1 See March v E & MH Stramere Pty Ltd (1991) 171 CLR 506, Henville v Walker (2001) 206 CLR 459 and I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 . The High Court of Australia is Australia’s ultimate court of appeal. Pt 2] White Constructions Pty Ltd v PBS Holdings Pty Ltd 183

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