The law of penalties, which is highly relevant in a variety of ways to the practice of construction law, has recently been the subject of significant judicial consideration in Australia. In Andrews v ANZ [2012] HCA 30, the High Court of Australia brought down a beautifully crafted judgment setting out the history of the law of penalties and restating the doctrinal basis for this peculiar area of the law. This talk will explore this doctrinal basis, analyse the decision in Andrews and provide commentary as to the further development and application of the doctrine. It will also consider some ramifications for drafting both LD clauses and other common provisions in construction contracts which could be construed as being “penal” (e.g. an abatement regime in a public private partnership deed). The decision in Andrews is pertinent because it traces the origins of the doctrine back to its English roots and, as such, provides a fascinating retrospective for all common law jurisdictions.

About the Speaker

Trevor Thomas - Special Counsel, Clayton Utz

Trevor has worked as a construction lawyer on major infrastructure and engineering projects for the last 10 years, and is currently Special Counsel in one of Australia’s most renowned construction law practices at Clayton Utz. He has a diverse practice acting for government, principals and contractors on a range of projects including: wind farms; hydro-electric projects; coal and gas power plants; chemical plants; mines; on-shore and off-shore resource extraction and processing; sea ports; air ports; buildings; rail; road and other significant infrastructure.

He is familiar with a wide variety of procurement methods, including: Public Private Partnerships; Design and Construct Contracts; Engineering, Procurement and Construct Contracts; Supply and Installation Agreements; Construction Management Contracts; Operations and Maintenance Agreements; Engineering Services Agreements; Alliance Agreements; Managing Contractor Contracts and general Consultancy Contracts.

Prior to becoming a lawyer, Trevor worked as an engineer and project manager for almost 10 years in Australia, Germany and England. This ranged from being a design engineer to running programs for the delivery of automated assembly lines and running a major IT procurement involving the management of a team of people and resources.

For the last 2.5 years, through his consulting business, he has acted as a superintendent and owner’s engineer on the construction of a major wind farm in Tasmania (which has now achieved completion). As such, he has extensive experience on site dealing with practical construction issues and disputes.

He has won numerous prizes both in Australia and abroad in relation to his work as a construction lawyer. On completion of his 3rd masters degree (which was a thesis about relationship contracting in the construction industry) he was invited to be a Senior Fellow teaching in the construction law masters program at the University of Melbourne. He is widely published in domestic and international construction law journals and his work has been cited with approval by a number of Australian Supreme Courts.

This gives him a broad range of practical, legal, project management, people management and academic skills and experience.

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