Building better construction lawyers

By Lianne Hall

MLS News spoke to industry professionals and legal specialists about working in the rapidly-changing field of construction law.

Sarah Landsberger loves her job. The 26-year-old contract administrator with Baulderstone is part of the team rejuvenating Melbourne's Hamer Hall to a state-of-the-art facility with world-class acoustics. She works on the $128.5 million redevelopment project, hiring contractors, managing costs and writing contracts.

The renovated concert hall is due to open next month, when Melburnians will get their first glimpse of the reborn auditorium. After two years work, the 30-year-old building boasts cutting-edge technical and staging facilities, faux-rock walls repainted by the original artists, 2,640 burnt orange seats upholstered in Spain, original leather-panelled walls and exciting new foyer spaces.

"This is an interesting job because it's an alliance – the first building alliance in Victoria – which means it's effectively an integrated project venture between the client, the builder and the architect," says Sarah.

The complexity of the project means that the interdisciplinary team shares an office in close proximity to the historic site.

"It's a really modern way of building," says Sarah.

The challenges facing Sarah in this rapidly changing industry saw her make the decision last year to take up masters-level study in construction law at Melbourne Law School.

"That's why I decided to study law. I've been working in the industry since 2004 and have a keen interest in the commercial aspects of building. When I saw what the Law School offered in the Masters Program, I thought it would really complement what I do on a day-to-day basis in my job."

"I can't tell you how much it's aided my role on-site ... With a better understanding of the law I have more pulling power behind client and sub-contractor decisions made every day."

We want students to understand that they are one discipline in an interdisciplinary team.

 Senior Lecturer and Co-Director of Studies for Construction Law, Matthew Bell, says that the Law School is working to meet the construction industry's educational needs and professional challenges.

"We want students to understand that they are one discipline in an interdisciplinary team," says Matthew.

Construction law is a relatively young, yet highly specialised, area of legal practice. Even as recently as  15 years ago, the absence of tertiary-level study in this field meant that most construction lawyers were trained on the job. Newcomers learnt the basics of construction law doctrine directly from experienced colleagues and through exposure to clients.

Matthew observes that, whilst professional experience remains crucial, this traditional 'learn on the job' model came under strain in the late 1990s and early 2000s as the volume and complexity of construction work increased. In turn, there has been a growing demand for universities to act as intersection points between the academy and the professions, where lawyers can enhance their skills and knowledge in construction law by learning from experienced experts.

Melbourne Law School has been at the vanguard of this development, having taught construction law at masters level since 2000 to lawyers and industry professionals, to LLB students since 2007 and, in 2012, to JD students. The teaching program was established under the direction of Professor Ian Bailey SC (who remains Co-Director of Studies in addition to his practice at the NSW Bar) and Dr Paula Gerber (now an Associate Professor at Monash University Law School).

… bringing in legal specialists from within the construction law community gives students access to an exceptional resource and ensures that subjects are relevant and cutting-edge.

This month, construction law professionals from around the world converged on Melbourne for the Fourth International Conference in Construction Law.

"The conference cemented Melbourne's status as a hub for construction law," says Matthew.

"Our program was a supporting organisation for the conference, with a focus on an academic forum attended by teachers and researchers from around the world."

Australia's prominence in the field is due in no small part to Melbourne Law School's program being one of only a handful of comprehensive masters-level programs in construction law in the world.

Matthew observes that it is essential that Melbourne's program maintain close touch with the constantly-evolving legal and commercial aspects of construction practice. He believes that, in an increasingly complex and specialised regulatory environment, the first step is for lawyers and industry professionals to understand each other's perspectives.

"The challenge for the construction industry is that construction professionals, including lawyers, often  don't speak the same language. We might be looking at the same project – say, an excavation – and the engineer says, 'I wonder how we prop that up?'; the lawyer sees potential liabilities to neighbours and workers; and the architect sees an opportunity to design something innovative."

"That's why we take our students out on site whenever we can. Wearing hard hats, high-visibility vests and boots, they can appreciate the practical issues that should be borne in mind when it is time to draft or negotiate a contract, or cross-examine an engineer in the witness box."

"Construction law is inherently practical: any time we as lawyers lose sight of that, at best it causes misunderstanding and at worst it can lead to real angst."

One of the key aspects of Melbourne Law School's program has been that, as well as covering the full range of legal topics required by construction lawyers and industry professionals, the school has also worked with experts from the Melbourne School of Design  and Melbourne School of Engineering to offer a subject that covers technical aspects for lawyers.

"These are not explicitly 'legal' topics", Matthew notes, "but they are essential to practise as a construction lawyer. If a lawyer wants to understand a claim or contractual term involving geotechnical issues or engineering failures, for example, then they need to at least understand the basics of the technical aspects."

Many of the students who undertake the Master of Construction Law come to the program with significant experience in the field already under their belts. Kim Rosenberg, a Senior Associate with the Magic Circle fi Freshfields Bruckhaus Deringer based in London (who completed her Master of Construction Law in 2006), wanted to supplement the skills she had already learnt on the job as a construction law specialist.

"The course was an extremely rewarding experience in terms of increasing my knowledge bank and interacting with lecturers who are some of the pre-eminent lawyers in their field in Australia," she says.

One of the industry leaders contributing to the program – as a founding member of the Advisory Board and having taught 15 subjects over the past decade – is Professor Doug Jones AM. Head of Clayton Utz's Construction and Major Projects Group, he is recognised as one of the leading construction and infrastructure lawyers in the Asia-Pacific region.

According to Professor Jones, bringing in legal specialists from within the construction law community gives students access to an exceptional resource and ensures that subjects are relevant and cutting-edge.

"The program covers a wide range of topics relevant to local and international construction from project inception to dispute resolution and is taught by industry leading lawyers and other project professionals from both the public and private sectors," he says.

"The construction law program, which has few counterparts worldwide, is uniquely placed to equip practitioners domestically and internationally for participation in the construction industry as lawyers and  industry  professionals."

For current student Sarah Landsberger, the course  is already bringing new skills and a new perspective.

"There are so many diverse backgrounds in class – lawyers, project managers, contract administrators, directors of subcontracting companies – everyone has so much to contribute and I enjoy being part of the conversations in class."

"I want to stay working at the coal face of commercial construction. Getting a legal perspective through my masters degree, on top of my construction management background, will immensely benefit my future in a commercial construction role."

Banner image: Sarah Landsberger at Hamer Hall

This article originally appeared in MLS News, Issue 7, May 2012.