Inside Commercial Law

Fortunes being made and lost as the world changes are very much front of mind today as AI continues its march. Yet, as Dr Lucie O’Brien tells Matthew Bell in this episode of Inside Commercial Law, financial precarity potentially leading to bankruptcy has a very long history in Australia. Giving a taste of her Rare Books Lecture at Melbourne Law School, she takes us back to the gold rush time in colonial Victoria through the lens of literary portrayals of bankruptcy; especially, the remarkable series of novels by Ethel (Henry Handel) Richardson collected as The Fortunes of Richard Mahony.

Construction law and the arbitration of construction disputes is now one of the most sophisticated areas of commercial legal practice in many places around the world. Yet, this development has only happened in the past few decades. In this episode, Matthew Bell speaks with three leaders in the global field of construction law and arbitration: Melbourne Law School Professorial Fellows Doug Jones AO and John Sharkey AM, and Professor Janet Walker CM of Osgoode Hall Law School. 

Our discussion covers the development of construction law as an area of practice, the importance of international professional associations including the International Bar Association, the Chartered Institute of Arbitrators and the Societies of Construction Law. We also discuss the potential for a symbiotic relationship between the practice and scholarship of construction law and how that potential can be realised when universities are able effectively to harness the goodwill and expertise of practitioners as teachers and researchers. 

In this episode, Matthew Bell is joined by Phillip Greenham and Rebecca Dickson. Phillip and Rebecca bring their wealth of experience in construction law practice and research to our Melbourne Law Masters classroom in the subject ‘Rethinking Construction Contracting Risk’. They give insights into how the subject offers construction professionals and lawyers the opportunity to step back from ‘business as usual’ practice to think about what our contracts should - and, should not - focus on. 

In this episode, Matthew Bell speaks with Sharon Vogel and Shona Frame during their week at Melbourne Law School teaching ‘International Construction Law’ in the Melbourne Law Masters, with a special guest appearance by Dr Donald Charrett.

They cover a smorgasbord of topics, from Indigenous consultation to security of payment, standard forms to the elusive ‘lex constructionis’, and give tips, from their extensive experience in project procurement, dispute avoidance and resolution, to students and others thinking about a career in construction law around the world. 

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In this episode, Professor Ali Noroozi gives insights from his decades of practice in tax law and policy into the challenges and possibilities for meaningful tax reform in Australia. This is a particularly acute issue as the Australian government heads towards its 2026 Budget buffeted by the political reality that tax reform inevitably creates ‘winners’ and ‘losers’.

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If you have been wondering whether to enrol in Melbourne Law School's Masters program, this episode is for you. Associate Professor Matthew Bell speaks with the Director of the Melbourne Law Masters program, Professor Andrew Godwin. They not only discuss how the program now spans more than 25 specialist practice areas, from banking to medical law, intellectual property to tax, but also about the benefits that the program's multi-disciplinary, intensive learning classrooms bring to lawyers and non-lawyers looking to take the next step in their careers. As an added bonus, Andrew proves just how many strings he has to his bow by telling us about some of his favourite composers (spoiler alert: Mozart doesn't make the list!)

In this episode, Matthew Bell speaks with Julian Bailey in London and Kim Rosenberg in Dubai. Julian and Kim both did their legal training and spent their early years in practice in Australia, and have gone on to be partners in leading international firms and to make very substantial contributions to the international construction law community through their writings, teaching and involvement with leading professional bodies.

Julian and Kim reflect on how their early days in Australia prepared them for international practice and how they have built and consolidated their careers. They also share tips for how lawyers keen to do a stint overseas (whether a year or two, or more) can leverage their Australian experience.

You can find out more about Julian and Kim via their firm websites:

In this episode, host Miranda Stewart is joined in conversation by Peter Harris, Professor of Tax Law at the University of Cambridge and Director of the Centre for Tax Law. With a career spanning many years working for the International Monetary Fund (IMF) and as a consultant for the Financing for Development Unit of the United Nations, assisting countries to develop and implement taxation policies has been central to Peter’s work.

At Melbourne Law School, Peter teaches Comparative Corporate Tax into the Melbourne Law Masters.

In late 2023, the High Court of Australia struck down the Victorian scheme requiring users of zero and low-emission vehicles (ZLEV) to pay a distance-based charge. It did so on the basis that the scheme imposed a ‘duty of excise’ and therefore impinged on the Commonwealth’s exclusive power under s 90 of the federal Constitution to levy such duties.

This has sent the Australian states and territories back to the drawing board in trying to raise money from ZLEV owners to pay their share of road maintenance funding, bearing in mind that the traditional source of such funding is the Commonwealth’s fuel excise. 

In this episode, Associate Professor Matthew Bell speaks with Professor Miranda Stewart of Melbourne Law School, and Peter Holcombe Henley and Mason Rogers of Clayton Utz about the Court’s decision and its implications. They unpack and explain the decision, noting that it was reached by a bare majority, and explore its implications for Australia’s road revenue and fiscal federalism.   

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In this episode of Inside Commercial Law, Professor Miranda Stewart is joined by Professor David Rosenbloom, director of the International Tax Program at New York University School of Law. Professor Rosenbloom is a member of Caplin & Drysdale, a law firm he rejoined in 1981 after serving as international tax counsel and director of the Office of International Tax Affairs in the US Department of the Treasury from 1978 to 1981. At Melbourne Law School, David teaches International Tax in the US into the Masters program.

When can a party sue to recover its costs under a terminated contract? In this episode, Professor Katy Barnett and Trevor Thomas discuss this issue of reliance damages for breach of contract. First, they explore the quirky history of reliance damages in Australian law. They then examine the High Court of Australia’s recent decision in the Cessnock City Council case. Is it the remedy to the bewilderment caused by Commonwealth v Amann Aviation?

In this episode, Dr Matthew Bell is joined by Michael Earwaker and Trevor Thomas in the week they are teaching the Melbourne Law Masters subject 'Advanced Construction Law'. As they explain, the subject is the 'capstone' in our construction law Masters program, giving students the opportunity to explore cutting edge issues and then write about them in a dissertation-length research paper on a topic they work up with Michael and Trevor. The class of interdisciplinary professionals - lawyers, project managers and beyond, from Australia and overseas - brings diverse and deep experience to these discussions, which touch on topics from recent High Court decisions through to staples of construction law like the prevention principle, risk allocation and reducing unnecessary complexity in contracting and disputes.

The AS4000 form of contract for construct-only delivery is one of the most widely used in the Australian construction industry. As it is now 27 years old, though, it doesn't even have a GST clause in it; let alone, provisions dealing with dispute avoidance, security of payment, collaborative contracting, or a raft of other developments which are now part of the contracting landscape. In this podcast, Co-Director of Studies for Construction Law Matthew Bell sits down with Owen Hayford (MLS Senior Fellow and principal of Sydney-based firm Infralegal). Owen was on the drafting committee for a new version of AS4000 which was released for comment in early 2024. Owen tells us about the process which has led to that draft, including the decision not to make any substantial changes to the risk allocation in the 1997 form, and why that risks being a missed opportunity for meaningful reform. He notes, though, some worthwhile changes, including an option for a dispute avoidance board, and encourages industry participants to push the publishers to be more ambitious and innovative in finalising the draft.