Published Papers

 

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Dr Donald Charrett, Cost Effective Resolution of Construction DisputesLitigation and arbitration of construction disputes have become increasingly expensive, time consuming and unappealing. Adjudication, expert determination and dispute boards (evaluative ADR) are increasingly being used to resolve disputes in a more timely and cost-effective manner than litigation or arbitration, In contrast to the compromise outcome typically negotiated by the parties in a mediation or conciliation, these evaluative methods of ADR result in a reasoned determination in accordance with the contract and the law, prepared by a third party independent neutral. Each of the alternatives has its advantages and disadvantages, canvassed in this paper. Statutory adjudication for certain types of disputes is mandated in a number of jurisdictions around the world, and although the resulting determination is only provisionally binding, in the great majority of cases it becomes de facto finally binding. Disputing parties can implement expert determination in either a binding or non-binding form, tailored to suit the circumstances of a particular dispute. Dispute boards come in two versions – an ad hoc dispute board set up to adjudicate a specific dispute, and a standing dispute board implemented at the start of a project that is not only able to adjudicate disputes if they arise, but is in a unique position to assist the parties to avoid disputes. The paper discusses the formal requirements for each of these evaluative methods of ADR, and makes some suggestions as to the types of disputes they are most suited to.(2015) IICJ 3nov Cost Effective Resolution of Construction Disputes
Dr Donald Charrett, Construction DisputesThe construction industry covers a vast collection of issues and is always subject to the potential
for dispute, just like any other industry. Here, as part of Lawyer Monthly’s Specialist Advocate
feature, we turn our attention to the Australian construction sector by speaking to Dr Donald
Charrett, a barrister practising in construction law, and an accredited Arbitrator, Mediator and
FIDIC trainer. His legal expertise includes litigation, mediation, expert determination, facilitation
of experts conferences, arbitration and membership of Dispute Boards. Prior to becoming
a lawyer, he worked as an engineer for over 30 years, including 12 years as a director of a
consulting engineering firm.
(2015) 64.15 Lawyer Monthly, 52
Dr Donald Charrett, Rules for Expert Evidence in AustraliaAs with many other aspects of the law in Australia, there are significant differences in the law and the rules for expert evidence between the different State, Territory and Commonwealth jurisdictions. Some jurisdictions now have Uniform Evidence Acts, whilst the common law of evidence still applies in three jurisdictions. A number of jurisdictions have explicit codes of conduct for expert witnesses, whilst the others do not. All jurisdictions have civil procedure rules that regulate expert evidence. The differences may mean that expert evidence that is complying in one jurisdiction may not necessarily comply with the rules in another jurisdiction. This paper provides a comparison of the rules relating to expert evidence in the nine jurisdictions of the state and territory Supreme Courts and the Federal Court. A table in the annexure cites for each jurisdiction the specific clause references to the requirements for expert evidence in the civil procedure rules and expert witness codes of conduct. This table provides details of the requirements for expert evidence under nine categories, including procedural requirements for expert reports, the required content of an expert report, procedural rules for expert conclaves, and giving expert evidence in court. The final section of the paper contains suggestions for the contents of an expert report that the author considers would satisfy the formal requirements in any jurisdiction, irrespective of the specific rules. Whilst this may seem to be an unnecessary counsel of perfection, this author believes there is merit in adopting a uniform approach to expert evidence that incorporates the current best practice in Australia.(2015) 163 ACLN 24 Rules for Expert Evidence in Australia
Dr Donald Charrett, Getting the most out of Expert Witnesses – Lessons from the Victorian BushfiresThe appropriate time to brief an expert in pending or actual litigation or arbitration will depend on a number of issues arising from the dispute. It also depends on what role the expert is required to fulfil expert witness, or technical expert member of the legal team.(2015) 161 ACLN 6 (Expert Evidence)
Dr Donald Charrett, The “Best” Method of Resolution of Construction Disputes; Elusive or Illusory?The argument about what is the ‘‘best’’ method of resolution of construction disputes has been a topic of discussion at recent construction law conferences, if perhaps somewhat tongue-in-cheek. For example, at the Second International Construction Law Conference in London in 2008, there was a debate entitled ‘‘Arbitration —is it the best form of dispute resolution?’’(2013) 30(1) ICLR 88 Best method of dispute resolution
Dr Donald Charrett and Cherie Holland AMOGA previous paper outlined the significant changes in work health and safety (WHS) legislation in Australia since 2011. That paper discussed in general terms that one of the significant developments in the new harmonised Work Health and Safety Act (the Act) and the Work Health and Safety regulations is the formalisation of higher WHS obligations on organisations that design, manufacture, import or supply products. However, as noted in the previous paper, the new harmonised legislation has not yet been implemented in all Australian states and territories. This paper looks in more detail at the specific new WHS obligations that have now been imposed on a design organisation by the harmonised legislation.(2013) 25(6) ACLB 101 WHS - designers obligations (Charrett & Holland)
Cherie Holland and Dr Donald Charrett AMOGSince 2011, work health and safety (WHS) legislation in Australia has undergone significant change through harmonisation across most Australian jurisdictions. The new legislation places a significantly higher burden of responsibility and compliance on organisations working in the construction industry than previously. The impact of the new legislation on an organisation needs to be carefully reviewed to ensure that personnel at all levels understand their duties and obligations, and that processes and procedures are updated and implemented to reflect the new regime.(2013) 25(3) ACLB 46 WHS in Australia (Holland & Charrett)
Dr Donald Charrett, The art of the forensic engineerThe first part of the paper discusses the role of the forensic engineer in investigating and determining the causes of structural failures, and how that role differs from that of the design engineer. The forensic engineer’s “deliverables” and “clients” require specialised skills directed to answering and communicating “why” the failure occurred. Recommendations are made for the appropriate engagement of a forensic engineer. The second part of the paper reviews the application of forensic engineering in the public reports of several structural failures.The direct “technical” causes of failurewere accompanied by contractual and project execution deficiencies that did not prevent or detect the onset of disaster before it was too late. The “non-technical” lessons learnt include implementing the appropriate contractual mechanisms for managing the project risks, the appropriate engagement of the design and checking engineers, the designer’s involvement during the construction, and the ongoing requirement for monitoring and inspection of constructed facilities.(2013) 2341 Art of the Forensic Engineer
Dr Donald Charrett, Dispute boards and dispute resolutionDispute boards have increasingly been used in Australia on major construction projects. They have been very effective in assisting parties to avoid formal disputes. If a dispute does arise, the dispute board is available to provide an expeditious and cost-effective dispute resolution service. This paper discusses the role of the dispute board in such dispute resolution. It suggests that the techniques can also usefully be applied by an “ad hoc” dispute board, constituted to determine specific disputes after they have arisen.(2013) 16(4) IHC 59 Dispute_boards_and_dispute_resolution
Dr Donald Charrett and Dr Andrew PottsContracts for engineering design normally include the obligation that the services will be performed with the reasonable skill, care and diligence that would be applied by a normally skilled member of the profession in similar circumstances. The profession makes considerable use of codes of practice, or ‘standards’, which codify current design practice. The prevailing view of the design profession is that such standards represent the ‘state of the art’ that they are expected to apply. But does compliance with the current applicable standard mean that the designer has discharged his/her contractual duty of care? Might something more be required? Does the designer need to anticipate how the design standards may evolve? This paper addresses these questions in the light of a recent on the applicable standard of care in relation to the use of current design standards may be surprising to many designers.(2013) 152 ACLN 6 Duty of Care in Design
Dr Donald Charrett & Dr Andrew Potts, What Corporate Counsel Need to Know About Engaging Forensic EngineersForensic engineering is the application of the art and science of engineering in the jurisprudence system, requiring the services of appropriately qualified and experienced professional engineers. Forensic engineering may include investigation of the physical causes of accidents and other sources of claims and litigation, preparation of engineering reports, testimony at hearings and trials in administrative or judicial proceedings, and the rendition of advisory opinions to assist the resolution of disputes affecting life or property. Forensic engineers may also be required to give evidence to a tribunal as to the cause and reasonable options for replacement or repair. This paper outlines the services that forensic engineers can provide, and emphasises the importance of their early and appropriate selection and engagement by the relevant legal team. A distinction is made between the roles of “clean” and “dirty” experts, and the need to clearly define the desired role to be undertaken by the expert. The responsibilities of corporate counsel in ensuring that appropriate information and support is provided to forensic engineers are highlighted. Examples are given from some case studies. The issues of the time and cost of forensic engineering services are discussed in the context of how these can be appropriately managed by corporate counsel. The tools available to forensic engineers to manage and report on their activities are noted, with particular reference to “CTRs” – schedules of the cost, time and resources required for the defined scope of the identifiable components of the required tasks.(2012) 5(19) IICJ 1 Engaging Forensic Engineers (Charrett & Potts)
Dr Donald Charrett & Dan Washington, Contracts for design servicesIn the construction industry, contracts for design services are frequently viewed as another “trade” subcontract, and are prepared accordingly. The paper notes the key aspects of design contracts that distinguish them from trade contracts. It highlights several types of inappropriate risk transfer in design contracts, and suggests that the owner’s risks can be more appropriately managed to obtain the best value from the designer’s services.(2012) 15(9) InHouse Counsel 293 Contracts for Design Services (Charrett & Washington)
Dr Donald Charrett & Dr Andrew Potts, Expert reports as evidence-in-chief—a curate’s
egg?
While it is now normal practice in litigation and arbitration for the evidence-in-chief of technical experts to be given in the form of written expert reports, this may not always be the best way of communicating complex technical issues to the tribunal which has to decide between conflicting opinion evidence. This paper reviews modern approachesto the evidence of experts, and suggests that the written reports may need to be supplemented by an appropriately prepared oral presentation to better convey the full technical complexity and implications thereof to the tribunal.(2012) 15(8) InHouse Counsel 266 Expert reports as evidence in chief (Charrett & Potts)
Dr Donald Charrett, Preparation of Lay Witness StatementsOn occasion, inhouse counsel will be involved with the preparation of lay witness statements. Such witness statements are standard practice in civil litigation in many courts and in arbitration proceedings. As a statement of the background facts related to particular issues, they are often an essential prerequisite to a decision on whether there are sufficient facts to sustain commercial litigation with a reasonable prospect of success.(2012) 15(6) Inhouse counsel 243 Lay witness statements
Dr Donald Charrett, Managing Design Risk – Cost, Time and Quality?Every construction project has a substantial element of design in it, whether the employer or the contractor engages the designer. In percentage terms, the cost of design is generally a small part of the overall cost of a construction project, and a very small part of the overall cost of a project considered over its life cycle. However, as it is the design that determines not only the form and nature of the construction, but also the characteristics of the constructed facility that determine the ongoing operating and maintenance costs over its entire life, its importance is substantially greater than the proportion of its percentage cost of the project. The employer in a construction project has a real interest in ensuring that design risks are appropriately managed to ensure, to the greatest extent possible, that the designer has its own commercial interest in managing the design appropriately so that its own commercial and other objectives the ways in which design risks can be managed by the employer, as well as by the designer.(2012) 142 ACLN 6 Managing Design Risk
Legal Guidelines for Forensic Engineers, Murphy-Duthie-Bielert-CharrettTraditionally, the engineer ‘wore many hats’ in connection with a construction project—as promoter, designer, project manager, contract administrator, certifier, adjudicator and sometimes even arbitrator. A number of those functions were fulfilled as ‘the engineer’ under a construction contract, in which the engineer, although engaged by the employer, was expected to act independently of both contract parties in his/her administration of the contract. It is apparent that that role is largely defunct under many modern construction contracts. The changing role of the engineer is illustrated by reference to case law and modern construction contracts. Examples are given of major problems which have arisen from an inappropriate contractual role for the Engineer resulting from inadequate definition, execution and coordination of the various engineering functions. It is suggested that, notwithstanding the changed role of the engineer, the definition and proper execution of these functions are as important to the successful outcome of projects as ever. (2010) 6(1) AJSE 11 Legal Guidelines for Forensic Engineers (Murphy, Duthie, Bielert & Charrett)
Dr Donald Charrett, The Engineer is Dead. Long Live the Engineer!This article will guide the forensic engineering expert through all aspects of an engineering dispute in Australia. This includes investigations into the failure or non-operation of materials, products, structures or components; assisting the client and their legal teams in identifying the root cause of the failure or non-operation; and issues to consider when giving evidence to a tribunal as to the cause and potential repair or replacement options.
The first part of this article provides guidance to an expert engaged as an independent expert or a “clean expert”, and the second part provides guidance to an expert engaged as an expert consultant or a “dirty expert” in relation to their role in the critical incident response through to the hearing of the dispute.
(2010) 134 ACLN 20 The Engineer