International Construction Law Review
INTRODUCTION
CHANTAL-AIMÉE DOERRIES KC
PROFESSOR DOUGLAS S JONES AO
Risk, and its identification and management, lies at the heart of a successful construction project. It is likewise critical for successful dispute resolution. In this second part of 2024 contributors consider different categories of risk faced by the construction industry. We start with the recent and highly topical Sir Francis Burt Oration, delivered by the Hon James Allsop AC, “The Legal System and the Administration of Justice in a Time of Technological Change: Machines Becoming Humans, or Humans Becoming Machines?”. Allsop’s topic is technology and the law and the administration of justice – in other words, law and justice, being the elements of a just society, bound together as the intertwined fabric of democratic, free society. His focus is on the likely transformative changes which digital technology and artificial intelligence (AI) are likely to impose on our lives, the law and the administration of justice. While his emphasis is not on construction, the insight of Allsop, the immediate past Chief Justice of the Federal Court of Australia, is nonetheless highly relevant to those participating in dispute resolution, whether as practitioners or as parties. Professor Douglas S Jones AO’s introduction to this contribution focuses on the construction industry and the present and future possibilities offered by AI. Allsop’s thought-provoking assessment offers a salutary warning that the greatest danger is not from the machine, but from the human who thinks like the machine about the law. We should not lose sight of the fact that while the results of the application of the law may be mimicked by a machine, for there to be a system of justice there must be the human process of engagement.
Next, in “Fraud in Statutory Adjudication: A Comparative Study of Common Law Jurisdictions”, S Magintharan and Dr Andrew Agapiou analyse the nature, scope and effect of fraud allegations in the enforcement of (and challenges to) statutory adjudication decisions. They do so by carrying out a comparative assessment of recent developments in four common law jurisdictions, Australia, Malaysia, Singapore and the UK. The authors present a detailed review of the legal definition of fraud in the context of statutory adjudication, and the rationale, scope, principles and judicial tests adopted by the respective courts when approaching fraud as a ground to set aside enforcement of an adjudication determination. Based on this review the authors conclude that the just judicial approach, in law and practice, when considering setting aside an adjudication determination on the ground of fraud (proved during or after the adjudication proceedings), is for the courts, unless the justice of the case requires otherwise, not to set aside the whole adjudication decision, but to sever that part of the determination which is tainted by fraud, while at the same time temporarily enforcing the untainted parts of the adjudication decision.
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