appropriateness for any given case. Indeed, the Protocol itself makes it clear that the listed delay analysis methods are for guidance only and the most appropriate analysis should be determined based on the "nature, scale and level of complexity of a particular project and the circumstances in which the issue is being considered". As a contrary belief had developed in the industry, this is a welcome judgment. There are also significant practical implications for parties to a dispute involving delay analysis. Justice Hammerschlag used the phrase "close attention to the actual facts rather than opinions about what the evidence establishes" when describing the correct approach to take in determining a delay claim. The need to prove the particular consequences of delay events was emphasised. Expert programming analysis by itself is insufficient. Factual evidence that establishes the delay, including the assumptions that delay experts rely upon, is essential. This is likely to be an onerous, costly and time consuming undertaking whether for a relatively small residential subdivision or a large, complex infrastructure project. There are practical steps that project participants can take to collect and maintain evidence during the delivery phase of a project to put themselves in a position to make and prove, or to assess and reject, a delay claim. In addition to preparing current construction programs updated on a periodic basis, parties can: • prepare and maintain registers that record events relevant to potential delay claims; • update site diary precedents so that they require the identification of delay events and affected successor activities; and • if project economics permit, engage construction surveillance officers to record delivery phase progress and delay and disruption events (including by written notes and time-stamped photographs). Finally, it should be noted that the decision relates to a claim for delay damages for breach of contract, assessed by reference to common law principles. Extension of time, delay costs and disruption claims that are made under sophisticated construction contracts will be influenced by the precise language used in the relevant provisions, including perhaps the degree of causation and the kind of proof required. About the authors Sean kelly senior associate david elston lawyer clayton utz