Thought Leaders

Phillip has been advising the construction industry for over 35 years. He practised at MinterEllison for 33 years and was a partner for 27 years. He has been associated with the University of Melbourne for over 10 years and was recently appointed an enterprise fellow at the university. He was a founding director and chair of the Society of Construction Law Australia. He has been a member of Arbitration Chambers in Hong Kong and London for two years.

What has been your most interesting case to date and why?

The most interesting and exciting case was an arbitration that I was involved in a few years ago – the largest construction arbitration in Australia at the time. Not only did it raise interesting and complex legal issues, but it was also a significant project management exercise in its own right. The case often demanded extended hours by many people. The collegiality that thrived among those involved in the case was motivation in itself. The case was also a terrific example of the efficient management of the arbitration process and the cooperation between opposing lawyers in navigating a hotly contested dispute.

How is the boom in government infrastructure projects in Victoria affecting the market?

Industry often calls for government investment in infrastructure. However, the current boom may be a case of “be careful what you wish for”. It is placing enormous stress on the industry. A serious shortage of experienced personnel is emerging. This is associated with shortages of raw materials and manufactured items for these significant projects. Contrary to what might be expected, the boom is not guaranteeing financial success for the participants. There are many who believe that project pricing is unrealistic and that we will see many organisations suffering financial stress with possible failures. All of these challenges must be managed by government and industry if the benefits of the boom are to be realised without leaving a damaged industry in its wake.

What impact have current procurement methodologies had on public infrastructure projects?

Procurement methodology is always evolving. Old techniques are modified and recycled. Alliance contracting lost some support in Australia some few years ago. However, it and other forms of collaborative contracting are beginning to flourish again, sometimes a little under the radar. While there are some participants in the industry who support collaborative contracting, the industry is still dominated by an adversarial demeanour. I think governments still struggle to engage with the industry in a way that maximises value for money and minimises tensions and disputes. Of course there are pockets of industry players who still pursue a contractually aggressive model. While progress can be slow, the trend is unquestionably towards more collaborative models.

Australia has had problems with flammable cladding on residential towers. What has been the government’s response? What role does the legal market have to play?

In Australia, considering the government’s response means considering the response of nine governments. The federal government does not have constitutional power in this area and therefore can only be a “convenor of discussions”. The responses of the various governments with responsibility have been varied, and many would say too slow. Industry is calling for a uniform national response but this has not yet come to fruition. Responses have included the banning of certain cladding materials and the introduction of government-funded or supported cladding replacement schemes. These circumstances are a real challenge for the legal system. It is unclear as to whether the current laws will provide a timely, efficient and accessible solution for the individual owners and occupiers of these premises. The capacity for the existing legal rules to create obstacles, confusion and delay are real concerns. Then of course there is the traditional time limit on bringing relevant claims. I think there is a significant role for lawyers to design adjustments to the system to better address these concerns.

How does JBM Advisory distinguish itself from the competition?

I can provide the benefit of my many years of experience at a top-tier law firm, in a manner that provides clients with easy accessibility to that experience. The focus is to quickly find convenient, commercially palatable solutions, and to unravel the complexity of the legal landscape which is often challenging. Finally, it is my objective that the assistance I provide to clients is of a capital nature – an investment in their knowledge base. Not only do I help solve today’s problem, but I seek to provide the client with the tools and insight to solve similar problems tomorrow.

What is the greatest challenge currently facing construction specialists in Australia?

The drafting of long, convoluted and complex project contracts has become the norm. These contracts are often not administered as they are drafted – they are not accessible to those responsible for administration. A challenge for construction lawyers is to redefine what a contract for a complex project looks like: to produce a document that is clear and simple, and can be readily administered. Adding to the quality of contract administration is the most significant contribution a construction specialist can make. Breaking out of the habits of the past, which are an impediment to this, is the greatest challenge.

What advice would you give to younger practitioners hoping to one day be in your position?

Become deeply involved in the industry’s dynamics. Step outside the narrow role of a lawyer. Understand the challenges of, and be enthralled by, the industry – use your passion to drive and sustain you. If this is your focus you will win a loyal client base, gain a reputation and have a long and rewarding career.

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?

I think the construction industry is a great untapped well of philanthropic energy – its resources and know-how are so important in improving the quality of life for so many in society. That energy is very often dissipated and diluted across individual organisations. I have been exploring ways for this energy to be harnessed and magnified. Success in achieving this would be of great benefit to society and would allow the industry to stand tall and proud. These efforts build on the terrific work already undertaken by various organisations such as the Lighthouse Foundation, Architects Without Frontiers, Engineers Without Borders and the Property Industry Foundation.

Phillip has been advising the construction industry for over 35 years. He practised at MinterEllison for 33 years and was a partner for 27 years. He has been associated with the University of Melbourne for over 10 years and was recently appointed an enterprise fellow at the University. He was a founding director and chair of the Society of Construction Law Australia. He has been a member of Arbitration Chambers in Hong Kong and London for two years.

What has been your most interesting case to date and why?

The most interesting and exciting case was an arbitration that I was involved in a few years ago – the largest construction arbitration in Australia at the time. Not only did it raise interesting and complex legal issues, but it was also a significant project management exercise in its own right. The case often demanded extended hours by many people. The collegiality that thrived among those involved in the case was motivation in itself. The case was also a terrific example of the efficient management of the arbitration process and the cooperation between opposing lawyers in navigating a hotly contested dispute.

How is the boom in government infrastructure projects in Victoria affecting the market?

Industry often calls for government investment in infrastructure. However, the current boom may be a case of “be careful what you wish for”. It is placing enormous stress on the industry. A serious shortage of experienced personnel is emerging. This is associated with shortages of raw materials and manufactured items for these significant projects. Contrary to what might be expected, the boom is not guaranteeing financial success for the participants. There are many who believe that project pricing is unrealistic and that we will see many organisations suffering financial stress with possible failures. All of these challenges must be managed by government and industry if the benefits of the boom are to be realised without leaving a damaged industry in its wake.

What impact have current procurement methodologies had on public infrastructure projects?

Procurement methodology is always evolving. Old techniques are modified and recycled. Alliance contracting lost some support in Australia some few years ago. However, it and other forms of collaborative contracting are beginning to flourish again, sometimes a little under the radar. While there are some participants in the industry who support collaborative contracting, the industry is still dominated by an adversarial demeanour. I think governments still struggle to engage with the industry in a way that maximises value for money and minimises tensions and disputes. Of course there are pockets of industry players who still pursue a contractually aggressive model. While progress can be slow, the trend is unquestionably towards more collaborative models.

Australia has had problems with flammable cladding on residential towers. What has been the government’s response? What role does the legal market have to play?

In Australia, considering the government’s response means considering the response of nine governments. The federal government does not have constitutional power in this area and therefore can only be a “convenor of discussions”. The responses of the various governments with responsibility have been varied, and many would say too slow. Industry is calling for a uniform national response but this has not yet come to fruition. Responses have included the banning of certain cladding materials and the introduction of government-funded or supported cladding replacement schemes. These circumstances are a real challenge for the legal system. It is unclear as to whether the current laws will provide a timely, efficient and accessible solution for the individual owners and occupiers of these premises. The capacity for the existing legal rules to create obstacles, confusion and delay are real concerns. Then of course there is the traditional time limit on bringing relevant claims. I think there is a significant role for lawyers to design adjustments to the system to better address these concerns.

How does JBM Advisory distinguish itself from the competition?

I can provide the benefit of my many years of experience at a top-tier law firm, in a manner that provides clients with easy accessibility to that experience. The focus is to quickly find convenient, commercially palatable solutions, and to unravel the complexity of the legal landscape which is often challenging. Finally, it is my objective that the assistance I provide to clients is of a capital nature – an investment in their knowledge base. Not only do I help solve today’s problem, but I seek to provide the client with the tools and insight to solve similar problems tomorrow.

What is the greatest challenge currently facing construction specialists in Australia?

The drafting of long, convoluted and complex project contracts has become the norm. These contracts are often not administered as they are drafted – they are not accessible to those responsible for administration. A challenge for construction lawyers is to redefine what a contract for a complex project looks like: to produce a document that is clear and simple, and can be readily administered. Adding to the quality of contract administration is the most significant contribution a construction specialist can make. Breaking out of the habits of the past, which are an impediment to this, is the greatest challenge.

What advice would you give to younger practitioners hoping to one day be in your position?

Become deeply involved in the industry’s dynamics. Step outside the narrow role of a lawyer. Understand the challenges of, and be enthralled by, the industry – use your passion to drive and sustain you. If this is your focus you will win a loyal client base, gain a reputation and have a long and rewarding career.

You have enjoyed a very distinguished career so far. What would you like to achieve that you have not yet accomplished?

I think the construction industry is a great untapped well of philanthropic energy – its resources and know-how are so important in improving the quality of life for so many in society. That energy is very often dissipated and diluted across individual organisations. I have been exploring ways for this energy to be harnessed and magnified. Success in achieving this would be of great benefit to society and would allow the industry to stand tall and proud. These efforts build on the terrific work already undertaken by various organisations such as the Lighthouse Foundation, Architects Without Frontiers, Engineers Without Borders and the Property Industry Foundation.

Phillip Greenham has practised construction law for over 35 years. He was a partner at MinterEllison for more than 25 years. He headed the construction, engineering and infrastructure group in the Melbourne office for 13 years. He is a founding director and a past chair of the Society of Construction Law Australia.

Phillip’s practice encompassed commercial drafting work, contract administration and dispute work in relation to a wide variety of construction engineering and procurement projects. Phillip now practises through JBM Advisory Pty Ltd and focuses on providing advisory and training services to the construction industry and other industries involved in complex procurement. Phillip also practises as an independent arbitrator and is a member of Arbitration Chambers in Hong Kong and London.

Phillip has specialised in the area of public sector procurement and assisting international construction and engineering companies navigate the Australian commercial and legal landscape.

The analysis of risk, whether through contractual documentation or business processes and behaviour, and the development of strategies to mitigate that risk is one of Phillip’s particular interests.

Training of personnel and the provision of tools to assist in the administration and management of projects in an efficient way, consistent with the assumed obligations, responsibilities and powers is important and is one of Phillip’s key strengths.

Phillip has a BSc. He brings techniques from this discipline to his practice of the law. These include Monte Carlo-style risk assessment tools and a focus on a return-on-investment analysis of disputes.

Phillip is an Enterprise fellow in the Melbourne Law School (University of Melbourne) and presents regularly on procurement methodology, contract administration and government contracting.

Phillip Greenham has practised construction law for over 35 years. He was a partner at MinterEllison for more than 25 years. He headed the construction, engineering and infrastructure group in the Melbourne office for 13 years. He is a founding director and a past chair of the Society of Construction Law Australia.

Phillip’s practice encompassed commercial drafting work, contract administration and dispute work in relation to a wide variety of construction engineering and procurement projects. Phillip now practises through JBM Advisory Pty Ltd and focuses on providing advisory and training services to the construction industry and other industries involved in complex procurement. Phillip also practises as an independent arbitrator and is a member of Arbitration Chambers in Hong Kong and London.

Phillip has specialised in the area of public sector procurement and assisting international construction and engineering companies navigate the Australian commercial and legal landscape.

The analysis of risk, whether through contractual documentation or business processes and behaviour, and the development of strategies to mitigate that risk is one of Phillip’s particular interests.

Training of personnel and the provision of tools to assist in the administration and management of projects in an efficient way, consistent with the assumed obligations, responsibilities and powers is important and is one of Phillip’s key strengths.

Phillip also has a BSc. He brings techniques from this discipline to his practice of the law. These include Monte Carlo-style risk assessment tools and a focus on a return-on-investment analysis of disputes.

In the many large projects Phillip has managed, he has been able to apply project management and financial analysis techniques to assist clients in making the most appropriate decisions. These techniques were particularly helpful in the management of the then largest construction arbitration in Australia, the Murrin Murrin arbitration. This chess clock arbitration, conducted in an ICC framework, involved many firsts for Australia.

Phillip is a senior fellow in the University of Melbourne (Melbourne law master’s programme) and presents regularly on procurement methodology, contract administration and government contracting.

Phillip Greenham has practised construction law for over 30 years. He was a partner at MinterEllison for more than 25 years. He headed the construction, engineering and infrastructure group in the Melbourne office for 13 years. He is a founding director and a past chair of the Society of Construction Law Australia. Phillip’s practice encompassed commercial drafting work, contract administration and dispute work in relation to a wide variety of construction engineering and procurement projects.

Phillip’s dispute practice encompassed all forms of dispute avoidance, management and, resolution including court proceedings, arbitration, mediation, conciliation, court-appointed special referees and independent expert.

Phillip personally conducted the mediations on behalf of his clients and was regularly able to assist in the navigation of intractable disputes to a satisfactory agreed outcome.

Phillip’s experience in construction disputes extends over his 34 years of practice and has included Australian domestic arbitrations and mediations (acting as adviser in dozens of arbitrations in Australia relating to residential and commercial building developments) and oil and gas matters (acting as arbitrator, on a panel of three, in relation to a dispute over an LPG development in Western Australia). He has also represented Fluor Australia in relation to the Murrin Murrin arbitration; the Victorian government in relation to the long-running Seal Rocks arbitration; the Victorian Department of Health in relation to a number of disputes in connection with the construction and refurbishment of various Victorian hospitals through the litigation, mediation and expert determination process; the Victorian Department of Justice in relation to arbitration and court proceedings arising out of the construction of new police stations in Victoria; Krupp Udhe in relation to arbitral and court proceedings arising out of the construction of an Ammonium Nitrate plant; and Kilpatrick Green in relation to expert determination and court proceedings arising out of a large-scale industrial plant.

Phillip has a BSc and brings techniques from this discipline to his practice of the law. These include Monte Carlo-style risk assessment tools and a focus on a return-on-investment analysis of disputes.

Phillip has wide and deep industry connections. He is a board member of the Australian Construction Industry Forum, and a member of the International Academy of Construction Lawyers; the International Construction Lawyers Association; the Construction Lawyers Society of America; and the International Bar Association’s international construction projects committee.

Phillip is a senior fellow at Melbourne University, on the master’s programme in law, and presents regularly on procurement methodology, contract administration and government contracting.

Phillip recently joined Arbitration Chambers (with chambers in Hong Kong and London).