It is rare for the courts to provide explicit comments on the proper management and presentation of construction litigation and signpost a potential change in the Court’s own approach to such litigation. The WA Supreme Court has done this. In a recent decision, the Court criticised the “extravagant” approach to the litigation in the case and the presentation of a mass of materials that amounted to “trial by avalanche” and “served only to obscure rather than elucidate”. The Court outlined how to better conduct such litigation and appears to herald a change in the way the Court has historically dealt with its power to appoint referees. The judgement also contains a very useful summary of the elements necessary to prove certain non-contractual claims.
