Australia: Construction & Infrastructure - What's News - 20 January 2015

In the media

National Energy Efficient Building Report highlights industry concerns with effectiveness of National Construction Code
The National Energy Efficient Building Project (NEEBP), has released the Phase 1 National Energy Efficient Building Report this month, highlighting stakeholder concerns that compliance with the National Construction Code's energy performance requirements is generally poor, and that Australia's energy performance is far from best practice. More... More...

Australia attracts $660 million in new offshore exploration
Industry Minister Ian Macfarlane today announced the awarding of seven new permits worth more than $660 million as part of Round 2 of the Australian Government's 2013 Offshore Petroleum Exploration Acreage Release (17 December 2014). More...

Coordinated and strategic" law breaking costs CFMEU & organisers $205,100
The Federal Court's Justice White has penalised the CFMEU and 10 of its current and former officials a total of $205,100 for illegal activity on four Adelaide construction sites, describing their behavior as "coordinated and strategic" (15 January 2015). More...

Expert warns not enough is being done to prevent risk of cyberattack on critical infrastructure
Inadequate training and a culture of complacency among many owners and operators of critical infrastructure are significantly raising the risks of highly damaging cyberattack throughout the world (09 January 2015). More...

Record Residential Approvals Building for a Resilient 2015
Strong ABS Building Approvals numbers recorded for November 2014, support ongoing activity in the pipeline for new homes to provide a much needed boost for housing supply and construction jobs, as we move into 2015 (09 January 2015). More...

Construction weakens in December
The construction sector remained in contraction for the second consecutive month in December, compounding fears over the state of the broader Australian economy. The Australian Industry Group and Housing Industry Association's Performance of Construction Index dropped one point to 44.4 in December from 45.4 in November (09 January 2015). More...

Construction Employment Surges to Record Highs
Even as the general economy slows, employment levels within the construction industry in Australia have soared to record highs. On a seasonally adjusted basis, the overall number of people employed throughout the sector in the three months to November rose by 6,600 (0.63 per cent) from 1.048 million to 1.0546 million (07 January 2015). More...

Resources and energy earnings to decline in 2014-15
Australia's resources and energy commodity export earnings are forecast to decline by 10 per cent in 2014-15 to $176 billion according to the Resources and Energy Quarterly–December Quarter 2014, released today by the Department of Industry (22 December 2014). More...

New South Wales

Infrastructure priority on India-NSW agenda
The NSW government has big plans for infrastructure and other engineering industries in strengthening its relationship with India by smoothing the way for project collaboration and investment. According to the Baird government, India plans to build around US$1 trillion of infrastructure by 2017, making it an attractive partner for the state (16 January 2015). More...

NorthConnex motorway construction begins
Construction of the $3 billion NorthConnex motorway in Sydney begins in February. The conditions of approval include a visibility standard which has never existed in NSW before. NorthConnex will operate in line with world's best standards and can be reassessed by the Department of Planning every 5 years (16 January 2015). More...

Delivering WestConnex: M4 Widening work approved to start
With planning approval now granted, preparatory work will begin along the corridor later this month. The Rizzani De Eccher Leighton joint venture has been contracted to design and construct the 7.5 kilometre project, due for completion in early 2017 (09 January 2015). More...

Approval granted for Bankstown Airport Master Plan
Today Deputy Prime Minister and Minister for Infrastructure and Regional Development Warren Truss announced his approval of the Bankstown Airport's 2014 Master Plan (05 January 2015). More...

Sale of Colongra Power Station in NSW
Treasurer Andrew Constance today announced the NSW Government has agreed to sell Delta Electricity's gas-fired Colongra power station to Snowy Hydro for $234 million. As a result of the transaction, the $90 million liability associated with the Colongra gas lateral pipeline lease is also removed from Delta's balance sheet (29 December 2014). More...

Queensland

Coastal engineers concerned at instructions to Moreton Bay Council on sea level rise
An expert group within peak engineering body Engineers Australia has today questioned the basis for a recent decision by the Queensland Minister for State Development, Infrastructure and Planning, Jeff Seeney, to order Moreton Bay Council to remove all references to climate change induced sea level rise in its regional plan (06 January 2015). More...

First plans for Queen's Wharf Brisbane
Deputy Premier and Minister for State Development, Infrastructure and Planning has revealed the design concepts submitted by two major consortiums competing for the multi-billion dollar Brisbane Queen's Wharf Integrated Resort Development (22 December 2014). More...

Victoria

Spike in dodgy tradesmen targeting elderly, disabled, Victorian Government warns
Victorians are being urged to report unsolicited approaches from trade workers, after a spike in the number of con artists operating across the state (14 January 2015). More...

Building surveyor fined for unpaid building permit levies
A building surveyor has been penalised more than $23,000 after he was found guilty of 17 charges relating to various sites in suburbs including Prahran, Ivanhoe and West Preston, after he failed to submit details of the building permits he had issued over a two-year period, and did not pass on the associated building permit levies to the VBA (22 December 2014). More...

Victorian Construction Forecasts
The latest construction forecasts for all states and territories have been released by the Australian Construction Industry Forum. In Victoria, residential building is the dominant sector of activity, with a slight downturn in spending projected for 2014-15, with marginal growth predicted in the two years following (18 December 2014). More...

Published – articles, papers, reports

Building and construction insolvency - some recent developments
Michael Murray, ARITA, Jan 07, 2015
There is a Senate inquiry into insolvencies in the building and construction industry; the NSW government is proposing new laws to protect subcontractors and others in construction company failures; and various reports and other inquiries touch upon the issues in this industry, including unlawful phoenix activity. More...

Resources and energy earnings to decline in 2014-15
Australia's resources and energy commodity export earnings are forecast to decline by 10 per cent in 2014-15 to $176 billion according to the Resources and Energy Quarterly–December Quarter 2014, released today by the Department of Industry (22 December 2014). More...

Resources and Energy Quarterly December 2014 (PDF 1.2MB)
December 2014 Resources and Energy Quarterly has been released

Australian Bureau of Statistics releases January 2015

Building Activity, Australia, Sep 2014 (cat no. 8752.0) – 15 January 2015
Construction Activity: Chain Volume Measures, Australia, Sep 2014 (cat no. 8782.0.65.001) – 15 January 2015
Engineering Construction Activity, Australia, Sep 2014 (cat no. 8762.0) – 14 January 2015

Practice and courts

Safework Australia: Construction Information Sheets
The following Information Sheets provide guidance for persons conducting a business or undertaking (PCBUs) on managing risks at construction workplaces.

Construction work – Work of a minor nature– provides general guidance on what might be considered 'work of a minor nature' and is therefore not covered by Chapter 6 of the Work Health and Safety Regulations when testing, maintaining or repairing a building or structure.

Workplace induction for construction workplaces – provides general guidance on what should be included in workplace specific induction training and task specific training for construction work.

Safe work method statement for high risk construction work – provides general guidance on the function, content and application of safe work method statements (SWMS) that are required for high risk construction work (18 December 2014). More...

Construction Site Safety Guides 2014/15 Released
Latest edition of the QLD and NSW Construction Site Safety Guide – distributed free of charge - is a great go-to for keeping your construction site free from harm (28 December 2014). More...

Dispute resolution
Australasia's two largest membership organisations for ADR practitioners, LEADR and the Institute of Arbitrators and Mediators Australia (IAMA) made the historic decision to become a single entity. The members of both organisations voted overwhelmingly to proceed to a single, integrated body on 1 January 2015. More...

NSW Fair Trading: Tougher home building laws commence
From today, builders and traders face up to 12 months in prison if they are repeat offenders of unlicensed contracting work or don't have the required insurance. New laws include changes to licensing to modernise industry practices in NSW, in accordance with other jurisdictions (15 January 2015). More...

NSW BPB: December 2014 e-news
The e-news is a monthly digest of work by the Board, legislative updates, events, training and consultation opportunities (17 December 2014). More...

QLD Building and Plumbing Newsflash No 537: A revised version of Queensland Development Code Mandatory Part 1.4—Building over or near relevant infrastructure (MP 1.4)
The revised version will commence on 15 December 2014. More...

Cases

BHP Billiton Minerals Pty Ltd v Maritime Union of Australia [2014] FCA 1357
INDUSTRIAL LAW – unlawful industrial action – where respondents instigated unlawful industrial action by members of the first respondent – where unlawful industrial action caused disruption to the applicant's business and resulted in commercial losses – where parties agreed on liability of the respondents – determination of appropriate penalty – whether unlawful industrial action was a worst possible case justifying maximum penalty. Corporations Act 2001(Cth), s 50. The respondents pay to the applicant damages in the amount of $1,000,000 as provided in Order 7. More...

Omega House Pty Ltd v Khouzame [2014] NSWSC 1837
Declare that the adjudication determination made by the second defendant on 16 September 2014 is void. BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - payment claim made after termination of contract - claim seeking retention moneys and other amounts - whether payment claim valid - whether reference date available for claim - whether contract provides that reference dates cease on termination. Building and Construction Industry Security of Payment Act 1999 (NSW) ss 8, 13. Corporations Act 2001 (Cth) s 491. More...

The Owners - Strata Plan No 68372 v Allianz Australia Insurance Limited [2014] NSWSC 1807
BUILDING AND CONSTRUCTION - adoption of referee's report - UCPR, r 20.24 - application of parties opposing adoption of referee's report on certain matters - whether third defendant developer a "developer" under Home Building Act 1989 (NSW), s 3A and thus liable to plaintiff owners corporation under s 18C for contractor's breach of s 18B implied warranties - whether claim brought under s 18C an apportionable claim - whether referee erred in selecting cheaper option for rectification of laundry waste defects - where referee applied relevant Australian Standard but failed to consider compliance with contractual specification - where insistence on contractual compliance not unreasonable - Bellgrove v Eldrige and Tabcorp Holdings Ltd v Bowen Investments Pty Ltd - whether plaintiff failed to mitigate its loss by pursuing claim against second defendant insurer diligently - whether third defendant entitled to indemnity from first defendant insurer - whether certain defects due to design default and thus excluded from cover by terms of insurance policy - where multiple causes of damage and not all causes covered by insurance policy - Wayne Tank principle. BUILDING AND CONSTRUCTION - adoption of referee's report - where issue before referee raised questions of law, court to consider the issue afresh - whether developer able to be held liable under s 18C where contractor not in breach of s 18B implied warranties - whether defect within scope of contractor's duty. Civil Liability Act 2002 (NSW), Pt 4, ss 34, 35; Home Building Act 1989 (NSW), ss 3, 3A, 18B, 18C. More...

Jakeman Constructions Pty Ltd v Boshoff [2014] QCA 354
PROCEDURE – JUDGMENTS AND ORDERS – IN GENERAL – STATEMENT OF REASONS FOR DECISION – where the respondent sued the applicant for damages for "wrongful dismissal" and "breach of contract of employment" and applied for summary judgment – where the primary judge gave summary judgment for the respondent's claim for "wrongful dismissal" – whether the primary judge gave adequate reasons for giving summary judgment PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – DISPOSITION WITHOUT TRIAL – where the respondent sued for "wrongful dismissal" and was granted summary judgment – where there will be a trial for the respondent's remaining claims for relief – where the applicant employer had dismissed the respondent with four weeks pay in lieu of notice – where the applicant argues the fixed term employment contract had been previously varied to permit this, which gave rise to an arguable defence to the part of the claim for which summary judgment was granted – whether the applicant had no real prospects of successfully defending that part of the claim – whether there was no need for a trial of that part of the claim. EMPLOYMENT LAW – CONTRACT OF SERVICE – VARIATION OF CONTRACT – where the respondent had pleaded he had been wrongfully dismissed, but had not pleaded that he had accepted the dismissal as a repudiation and elected to terminate the employment contract – whether the statement of claim required amendment. More...

CFMEU v Boral Resources (Vic) Pty Ltd & Ors [2014] VSCA 348
TORT – Common law of Australia – Intimidation – Existence of tort established by 1971 appellate decision – Whether still good law – Whether decision overtaken by subsequent decisions of High Court and House of Lords – Whether tort subsumed in broader tort of unlawful interference with business – No reason to doubt correctness of decision – Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association [1971] 1 NSWLR 76 applied – Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307, OBG Ltd v Allan [2007] UKHL 21; [2008] 1 AC 1 considered – Appeal dismissed. More...

BHP v Steuler; Protec v Steuler [2014] VSCA 338
TRADE PRACTICES – Misleading and deceptive conduct – Whether manufacturer made representation to purchaser that a high density polyethelene product was suitable for use as a long term containment liner for concrete solvent extraction tanks at mine – Pre-existing choice of product – Whether any reliance – Whether representation misleading or deceptive – Whether any misleading conduct caused loss – Proof of alternative transaction – Whether fire requiring replacement of liner was a supervening event – Method of assessing damages – Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494, applied – Henville v Walker [2001] HCA 52; (2001) 206 CLR 459, Abigroup Contractors Pty Ltd v Sydney Catchment Authority [No 3] [2006] NSWCA 282; (2006) 67 NSWLR 341, distinguished – Trade Practices Act 1974 (Cth), ss 52 and 82. SETTLEMENT – Whether settlement of proceedings between mine owner and installer of the liner was objectively reasonable – Absence of evidence from lawyers – Whether trial judge was obliged to assess for himself whether the settlement sum was reasonable – Lack of proof of elements of cause of action compromised – Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603, BNP Paribus v Pacific Carriers Ltd [2005] NSWCA 72, applied. CONTRACT – On-site Service Agreement for installation of the liner – Whether trial conducted without distinguishing between different Protec entities – Whether reliance by installer on any misrepresentation by manufacturer when entering the On-site Service Agreement – Whether agreement contained warranty about suitability of the liner. More...

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) [2014] VSC 400
PRACTICE AND PROCEDURE – Overarching obligation not to make a claim or a response to a claim without a proper basis – Whether breached by solicitor for losing party – Liability of solicitor for wasted costs – Requirement that solicitor's conduct be unreasonable – Briefing of experts – Preparation of witness statements – Investigation of factual basis for a claim - Discretionary considerations in wasted costs jurisdiction – Discretionary considerations under s 29 Civil Procedure Act – Whether solicitor entitled to benefit of a doubt because claims of client legal privilege not waived – Whether relevant privileged communication established – ss 18, 22, 23, 29, 42 Civil Procedure Act 2010 (Vic) – r 63.23 Supreme Court (General Civil Procedure) Rules 2005. LEGAL PRACTITIONERS – Overarching obligation not to make a claim or a response to a claim without a proper basis – Whether breached by solicitor for losing party – Liability of solicitor for wasted costs – Requirement that solicitor's conduct be unreasonable – Briefing of experts – Preparation of witness statements – Investigation of factual basis for a claim – Discretionary considerations in wasted costs jurisdiction – Discretionary considerations under s 29 Civil Procedure Act – Whether solicitor entitled to benefit of a doubt because claims of client legal privilege not waived – Whether relevant privileged communication established – ss 18, 22, 23, 29, 42 Civil Procedure Act 2010 (Vic) – r 63.23 Supreme Court (General Civil Procedure) Rules, 2005. More...

Ruckschloss v Simmons and Anor [2014] ACTSC 340
ADMINISTRATIVE LAW – Appeals from Administrative Authorities – separate question – whether construction occupations registrar can impose conditions on licensed building surveyors relating to acceptance of advice from engineers or from a named engineer.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appeal from interlocutory decision of Master answering a separate question – appeal lies to single Judge – Master's reasoning not shown to have been erroneous – Master's answer to question not shown to be wrong – appeal dismissed. STATUTES – ACTS OF PARLIAMENT – Operation and Effect of statutes – Construction Occupations (Licensing) Act 2004 (ACT) – separate question – whether there is power under s 21 of the Act to impose conditions on the licences of building surveyors relating to engineers. More...

Legislation

Commonwealth

Queensland

Subordinate legislation as made, 19 December 2014

Substantial changes to the planning, environment and property landscape were listed on 19 December 2014. More...

No 329 Coastal Protection and Management Amendment Regulation (No. 2) 2014
No 330 Coastal Protection and Management Amendment Regulation (No. 3) 2014
No 332 Petroleum and Gas (Production and Safety) Amendment Regulation (No. 3) 2014
No 334 Water and Other Legislation Amendment Regulation (No. 1) 2014
No 340 National Gas (Queensland) Regulation 2014
No 341 Housing Amendment Regulation (No. 3) 2014. More...

Subordinate legislation as made No 332 – 19 December 2014. More...
Amends the Petroleum and Gas (Production and Safety) Act 2004 – new 6AA Substances prescribed for Act, s 402; Replacement of s 54AA (Operator to ensure drilling rig workers meet competency requirements) effective 01 January 2015 and Amendment of sch 9 (Fees).

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.