On 4 March 2024, the new Building, Engineering and Construction List (BEC List) came into operation in Queensland, under the Supreme Court of Queensland Practice Direction Number 2 of 2024.1The purpose of the list is to improve the conduct of large and complex litigation in relation to building, engineering and construction. This is a welcome development for businesses in the construction industry that may find themselves involved in litigation in Queensland and brings the Sunshine State in line with Victoria and New South Wales.
Queensland
Historically, there has been no dedicated construction list in Queensland, but construction matters may have been dealt with on the Commercial List which applies to matters of a ‘a general commercial character or that generally arise out of trade or commerce’.2
However, over the past decade in Queensland, large, complex construction disputes have taken an increasingly larger share of the Queensland courts’ time, in part due to a population boom and mega-LNG and mining projects. This shift is perhaps best exemplified by the litigation between Santos Limited and Fluor Australia Pty Ltd was noted by the judge as being on a ‘monumental scale’,3 and that one of the parties ‘…expended over 120,000 solicitor hours, $36.5 million in expert fees, $21 million in counsel fees and $2.5 million in other costs.’4
This trend has given rise to a recognised need amongst practitioners and litigants for a dedicated construction list, as is the case with the Technology, Engineering and Construction List in Victoria, and the Technology and Construction List in New South Wales. It is hoped that the introduction of the BEC List will improve the efficiency and proportionality of large, complex litigation in the construction sector, and develop a specialised judiciary to deal with such matters. The judges assigned to conduct matters on the BEC List are Justice Williams (former partner in the projects group of a national law firm) and Justice Sullivan (recognised among the State’s leading construction barristers when previously at the bar).
How to get BEC-listed
A matter may be placed on the BEC List if:
- it is of a nature and complexity warranting judicial supervision; and
- the matter involves a substantial issue in respect of building, engineering, or construction.
An issue in respect of building, engineering or construction could include (but is not limited to) the design, carrying out or inspection of any building or engineering work.
The Practice Direction specifically states that matters under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) will not usually be placed on the BEC List. This contrasts with the Technology and Construction List in New South Wales where proceedings arising out of the equivalent security of payment legislation may be entered on that list.
Flexibility
The BEC List provides maximum flexibility in several areas.
Firstly, previous Practice Directions relating to electronic document management and efficient conduct of civil litigation do not apply to matters on the BEC List (except to the extent ordered to the contrary). This provides BEC List judges with a discretion to adopt aspects of those previous Practice Directions only to the extent considered relevant and beneficial to the matter.
Another indication of the flexible approach is that a BEC List matter will be managed by case conferences rather than directions hearings. The Practice Direction states that a case conference:
- is a more informal procedure than a directions hearing; and
- can, if appropriate, take place by video link or telephone.
In our experience to date, the BEC List is providing a pragmatic approach to the management of documents and the briefing of experts, moving away from previous approaches encouraging the engagement of court appointed experts.
Time will tell whether these procedural innovations will benefit the efficient conduct of construction litigation in practice.
How can HWLE help you?
We have considerable experience in conducting construction litigation in Queensland and in every State and territory in Australia, including in New South Wales and Victoria under the construction lists in those jurisdictions.
This article was written by Laurence Terret, Special Counsel.
1https://www.courts.qld.gov.au/__data/assets/pdf_file/0004/787018/scpd-02-of-2024.pdf
2Practice Direction 1 of 2023 (Commercial List), https://www.courts.qld.gov.au/__data/assets/pdf_file/0004/750856/sc-pd-01-of-2023.pdf
3Santos Limited v Fluor Australia Pty Ltd & Anor [2023] QSC 77, [1]
4Santos Limited v Fluor Australia Pty Ltd & Anor [2023] QSC 77, [78]
