L7, 110 Eagle Street
4000, Brisbane, Australia
Paul Roberts is highlighted among peers for providing market-leading written and oral evidence in domestic and international litigation proceedings.
Paul is a chartered quantity surveyor with over 35 years of experience in all facets of commercial, contractual and dispute management.
He has specialised as an expert witness for over 15 years on building, engineering, mining and petrochemical projects located throughout Australia, South East Asia and UK.
Paul is formally trained and experienced as adjudicator, arbitrator, expert determiner and mediator. As expert witness Paul has been cross-examined in litigation and arbitration, including giving concurrent evidence.
How does your experience as a mediator and adjudicator enhance your role as an expert witness?
When acting as mediator, subject to any specific agreements between the parties, I do not make a determination. My focus is on assisting the parties reach their own negotiated settlement, which usually involves me interacting closely with both parties. As the parties are in control of the process and are free to decide on their own terms, settlement agreements are often not based on the parties’ respective contractual or legal entitlements. However, I will assist the parties draft their settlement agreement in order to ensure the provisions of the agreement are clearly stated.
As an adjudicator, my primary duty is to make a determination based on the parties’ contractual entitlements, which must also comply with the provisions of the applicable State or Territory statutory legislation. Unlike meditation, apart from being able to give the adjudicator additional time in which to deliver the decision, there is no opportunity for the parties to agree on the process, procedures or terms of settlement. The deliverable is my decision, which clearly sets out my findings on which party must pay whom and by when.
In fulfilling my role and duties as an expert witness, subject to specific instructions, tribunal rules and professional practice statements, I am required to apply my technical expertise, training and knowledge in order to give my independent opinion based on the material provided to me. Therefore, in common with adjudication, and unlike meditation, I am largely bound by the relevant procedures. In common with adjudication, the deliverable, being my report in this case, clearly sets out my opinion in respect of the matters put to me.
Accordingly, because being a mediator is a facilitative role with a large degree of flexibility, the experience has not enhanced my role as an expert witness. Conversely, acting as adjudicator has required me to produce written findings under strict procedural conditions and timeframes and this experience has enhanced my role as expert witness.
What has been the most memorable case you have testified in to date?
All the matters in which I have testified have been unique and hence memorable in their own way.
However, the matter of Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal  QSC 85, in which I gave evidence seven years ago, has been the subject of appeals and further reported judgements and I am therefore periodically reminded of my involvement. The most recent judgment on the matter, concerning the parties’ costs, is Civil Mining & Constructions Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd  QSC 92, delivered on 5th May 2023.
The plaintiff was a Queensland based construction company engaged by the defendant to carry out bulk earthworks and associated civil engineering works for a large coal and export facility in Queensland.
The elements of the dispute relevant to my testimony were typical of those I am regularly instructed to opine on, including variations, directions and the prolongation costs resulting from delays to practical completion.
Although the elements of the dispute were typical, and hence not particularly memorable, this was the first time I had been involved in litigation where expert evidence was given concurrently; a process sometimes referred to as ‘hot tubbing’.
Other memorable aspects of this case are, although I was not involved, the subsequent reported appeals, including submissions on the value the judge decided should be applied to the separate delay durations and settlement offers.
If you could reform one aspect of the expert witness role, what would it be and why?
There is no aspect of the expert witness role that I would reform. However, if I could reform one aspect of working as an expert witness, particularly in Australia, it would be the manner in which experts are briefed.
When I work in most jurisdictions outside Australia, in order to save time and for the sake of efficiency, instructing solicitors will often send me drafts of their proposed instruction letters and/or witness statements.
When working on matters in most Australian states and territories, subject to the relevant legislation on disclosure and privilege, instructing solicitors rarely send copies of such documents. The way the content of such draft or interim documents is relayed to the expert in order to allow the expert to make progress and avoid delaying completion of reports is by way of telephone call or video conferences, which can often be time consuming.
However, because disclosure and privilege is determined by the various state and territory legislation, it is unlikely that the manner in which experts are briefed on Australian matters will change significantly.
How might an increasing appetite for renewables projects in Australia impact the nature of disputes? What implications might this have for experts?
Australian renewables projects have had, and continue to have, significant impact on the nature of disputes. In my experience of renewables projects, the impact is that both the number of individual disputes resulting from poor productivity and defective workmanship, and the high value of such disputes as a proportion of the overall project value, is higher on renewables projects compared to other Australian construction and engineering projects. From my perspective, this is due to the typically remote geographical location of most renewables projects compared to most other construction projects.
The main reason for the high incidence of poor productivity and defective workmanship on projects in remote locations is the inability to attract and retain skilled and motivated labour resources when compared to projects located elsewhere. This has led to facilities being constructed by less experienced personnel which in turn results in defective installations and disputes over defects.
The main implication for experts is the difficulty in accessing these remote locations for site visits, of which I have had first-hand experience. For example, on one occasion, this required a two-hour flight and overnight stay in a regional town. The following day, starting at sunrise, a five-hour drive, largely on unsealed roads, to spend two hours alone on site in 35 degrees Celsius heat, before the return five-hour drive to catch a flight home.
How are pressures on costs and pricing structures changing the litigation sector? What advantages and disadvantages does this challenge bring for expert firms?
Clients and in turn their legal representatives are increasingly seeking either detailed budget fee estimates with an expectation that these estimates will accurately reflect the final fees payable or capped fees. In some cases clients request lump sum fee proposals.
The advantage for expert firms is that these pricing structures encourage the firms to give more detailed consideration of the likely resource and time requirements which, in turn, can assist the firms in planning and managing their own resources.
Using a capped fee as an example, in addition to the time and unrecoverable cost incurred in preparing the detailed fee estimate, the obvious main disadvantage is that if the actual time taken to complete the services exceeds the estimate or lump sum, the firm will expend resources for which it will not be paid and which could have been engaged on fee-paying work on other matters. Another possible disadvantage, which would not apply to me or Secretariat, is that some firms may risk tailoring the service to the fee estimate. This latter disadvantage has potentially dual adverse impacts. First, it may result in the expert’s client not obtaining the result it would have done if the expert had spent all the time necessary to undertake a thorough analysis and report and secondly, as a result of the first, there may be an adverse effect on expert and the expert’s firm’s reputation.
How might developments in AI impact the methods of quantum analysis? In your view, is this something experts should be exploring now?
In the same way that AI is being used in other parts of the building, construction and engineering industries (e.g. BIM), because quantum analysis is having to deal with ever increasing volumes of data, developments in AI will impact various aspects of quantum analysis. This will require firms to employ experts with new skills and provide training for existing experts.
Some of the key examples where AI developments will assist the efficiency and speed of quantum analysis are the use of algorithms to analyse and sort large amounts of data, preparing bills or schedules of quantities and pattern recognition and predictions.
Yes, experts should be exploring AI developments in quantum analysis. In my view, because AI is being used increasingly throughout the building, construction and engineering industries, it is essential for experts to explore and adopt the use of AI for quantum analysis. Secretariat are already using AI as part of our services and we continue to explore how AI can be used to increase efficiency and improve client service.
You have had an impressive 35 years of experience as an expert witness. What has been the key to your success, and how do you remain at the cutting edge of the field?
There has been no single reason for me being in the position I am today. I would say that my success, whatever that means, is a combination of good luck and hard work.
I have been extremely fortunate throughout my career to have worked for high quality and professional organisations, which has allowed me to gain experience on a wide variety of projects throughout the world, whilst learning from, and being mentored by, some of the most highly regarded professionals in their respective fields.
I started my career in a traditional UK private quantity surveying practice, gaining experience on a variety of building projects and then moved to a multidisciplinary international consulting firm working on major civils, heavy engineering and infrastructure projects, with whom I moved to Hong Kong, where I received my first expert witness appointment. During this time, I was mentored by a highly regarded quantum expert witness and arbitrator, who encouraged me to study and gain qualifications in dispute related subjects.
This excellent grounding has enabled me to set up, develop and run successful disputes services divisions within large organisations, which, in turn, has allowed me to establish myself as an expert witness with an excellent support team, upon whom I rely to remain busy through instructions from most of the best Australian and international construction lawyers.
What is the best piece of career advice you've ever received?
Without doubt, the best piece of career advice was from my father almost 40 years ago who, at the time, was a quantity surveyor and regional director for a large UK construction contractor. The advice was quite simple and went something like: ‘In your early career, forget about salaries and packages, focus on getting as much varied experience with high quality firms as possible’.
I am glad that I took his advice, which is the same advice I give to young people starting their careers and my younger colleagues who are looking to develop their careers.