As Lawyer Monthly’s first Raising the Bar appearance, Mark Dempsey SC introduces the building & construction sphere in Australia, highlighting the challenges he has encountered throughout his legal career, some of the precedents set and seen in the field, and the standards that have changed in this field over the years.
Mark is a highly experienced commercial advocate with a wide-ranging commercial practice. He appears at trial and appellate levels in State and Federal Courts, and in Mediation and Arbitration throughout Australia.
He has developed a special expertise in construction and engineering disputes, in particular, in complex and challenging cases.
He has been recognised as a leader in the field of construction law and litigation in Best Lawyers in Australia (2017 edition), Chambers Asia Pacific (2016) and Doyle’s List (2016).
Mark provides first class service with acuity, efficiency and flexibility. He has a deep knowledge of the law and vast experience in the conduct of commercial disputes from over 30 years of legal practice, 12 as Senior Counsel.
Mark also practices as an Arbitrator (he is a Fellow of the CIArb) and Mediator. In each capacity, he deploys the high end skill sets derived from his years of practice, throughout Australia and the Asia Pacific region. Mark enjoys working closely with his instructing solicitors and clients to achieve the optimal outcome in a cost effective manner.
Seven Wentworth & Selborne Chambers is a leading Australian commercial floor of barristers based in Sydney with a leading group of practitioners specialising in Building & Construction law and dispute resolution recognised in such publications as Best Lawyers in Australia, Doyle’s List, Chambers Asia Pacific.
That group includes Mark Dempsey SC, Duncan Miller SC, Nick Kidd SC, Nuala Simpson, Justin Hogan Doran, Duncan McFarlane, Brett Le Plastrier, David Hughes, Robert Carey and Mark Sheldon.
How did you come to specialise in the legal segment of building & construction and what is it about this industry that appeals most to you?
By chance; about 25 years ago, within five minutes, I received offers of two briefs. I accepted the first (in accordance with the Bar rules) and found myself engaged in my first long-running construction arbitration as junior to a leading senior counsel instructed by Allens. One thing led to another, and from then on I have being engaged in many significant and wrong long-running disputes in court and arbitration throughout Australia.
What have been the most challenging construction and engineering disputes you have had the pleasure of heading up, and what were the complexities involved?
There is a range. From the perspective of legal complexity and difficulty, the Abigroup v Sydney Catchment Authority litigation involved a lengthy reference hearing followed by three adoption hearings in the Technology & Construction List of the Supreme Court of New South Wales, and involved two appeals to the New South Wales Court of Appeal; the final of those decisions establishing significant new law as to the measure of damages recoverable in an action for misleading or deceptive conduct.
From the perspective of commercial significance and intensity, one matter which comes readily to mind was the litigation over the design and construction of the Hilton Hotel redevelopment project in Sydney.
From the perspective of technical complexity, an action by the owner of a coal-fired power plant against an EPC contractor for defective design or construction of the internal refractory lining of the furnace was the most challenging including very complicated questions of metallurgy, combustion and materials science, and systems analysis.
From the perspective of trial advocacy and forensic challenges, a keenly contested arbitration concerning the construction of three large leachate tanks constructed for a large uranium and gold mining facility posed particular challenges in cross examination of the large number of witnesses of 30 days in the conduct of cross-examination of experts giving concurrent evidence in five disciplines over seven consecutive days.
In your more than 30 years’ experience in this field, what would you say has been the biggest precedent you have set in the practice of building &construction law?
The case in which I was involved which has set the most significant precedent is ‘Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282; (2006) 67 NSWLR 341’.
How would you justify yourself as a barrister that increasingly raises the bar when it comes to Australian building & construction law?
Dispute resolution of large and high-value construction disputes is constantly challenging.
- First, the task of marshalling and mastering of vast volumes of factual and technical information;
- Second, the selection and adducing reports from technical experts to address with rigorous logic the many difficult technical issues thrown up by construction disputes;
- Third, the strategic challenges of presenting the most legally and cost-effective case for determination;
- Fourth, the selection and effective use of the best dispute resolution procedures;
- Fifth, the effective use of technology in the collation presentation of factual and evidence;
- Sixth, but by no means least, the ever present challenge of mastery of legal principle and the adaption and development of legal principle to the facts at hand.
The great challenge and great satisfaction of practice in this area is to be continually under pressure to identify and achieve improvements in all of these aspects
To what extent do you believe there is still capacity to raise this bar further, and develop the benchmark for legal services in this field in Australia?
There is always room for improvement in all of the six aspects referred to above.
What do you find most exciting and rewarding about your role as an Australian barrister in this legal segment, and what is it that keeps you one step ahead of your colleagues?
It is a privilege to be chosen to represent the interests of parties in litigation, and to bring to bear the combined experience of over 30 years’ experience of working with and learning from first-class professionals and judges.
It is a pleasure to have the opportunity of meeting and working with highly skilled and intelligent clients, experts, solicitors and fellow barristers, and to appear before the many outstanding judges and arbitrators engaged in this field in Australia and throughout the Asia-Pacific region.
Is there anything else you would like to add?
It is great pleasure to be able to work with my colleagues on the combined 7 Wentworth & Selborne Chambers, many of whom are recognised leaders in the field of Building and Construction law and dispute resolution.
