O'DONNELL GRIFFIN PTY LTD -v- JOHN HOLLAND PTY LTD [2009] WASC 19 (5 February 2009)
Last Updated: 6 February 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION : O'DONNELL GRIFFIN PTY LTD -v- JOHN HOLLAND PTY LTD [2009] WASC 19
CORAM : BEECH J
HEARD : 15 DECEMBER 2008
DELIVERED : 6 FEBRUARY 2009
FILE NO/S : CIV 1588 of 2008
BETWEEN : O'DONNELL GRIFFIN PTY LTD
Plaintiff
AND
JOHN HOLLAND PTY LTD
MACMAHON CONTRACTORS PTY LTD
MULTIPLEX CONTRACTORS PTY LTD t/as RAILLINK JOINT VENTURE
Defendants
FILE NO/S : CIV 1746 of 2008
BETWEEN : JOHN HOLLAND PTY LTD
MACMAHON CONTRACTORS PTY LTD
MULTIPLEX CONTRACTORS PTY LTD
Applicants
AND
O'DONNELL GRIFFIN PTY LTD
ROGER KENNETH FREDERICK DAVIS
Respondents
Catchwords:
Administrative law - Prerogative writs - Writ of certiorari - Whether adjudication under the Construction Contracts Act 2004 (WA) sufficiently affects rights to be amenable to certiorari - Whether legislation reveals an intention to exclude prerogative relief - Construction of privative clause
Building and construction - Payment dispute - Security of payment legislation - Determination by an adjudicator under Construction Contracts Act 2004 (WA) - Application for writ of certiorari to quash determination - Whether adjudication application made out of time - Whether adjudicator was obliged to dismiss the application without determining the merits - Whether jurisdictional error by the adjudicator
Legislation:
Construction Contracts Act 2004 (WA), s 6 , s 26 , s 31 , s 46
Result:
Application dismissed
Category: A
Representation:
CIV 1588 of 2008
Counsel:
Plaintiff : Mr F Tiernan QC & Mr L E James
Defendants : Mr C L Zelestis QC & Mr V Lui
Solicitors:
Plaintiff : Kott Gunning
Defendants : Minter Ellison
CIV 1746 of 2008
Counsel:
Applicants : Mr C L Zelestis QC & Mr V Lui
Respondents : Mr F Tiernan QC & Mr L E James
Solicitors:
Applicants : Minter Ellison
Respondents : Kott Gunning
Case(s) referred to in judgment(s):
BEECH J :
Introduction
1 On 10 April 2008 Mr Roger Davis made a determination of an adjudication application under the Construction Contracts Act 2004 (WA) (the Act). On 10 May 2008 Mr Davis amended the determination.
2 The effect of the determination as amended was that the parties known as the RailLink Joint Venture (RLJV) were ordered to pay an amount of about $7.3 million to O'Donnell Griffin Pty Ltd (ODG).
3 There are two applications before me. First, the applicant in CIV 1588 of 2008, ODG, applies for leave under s 43 of the Act to enforce the determination as a judgment of this court. Secondly, in response to that application, in CIV 1746 of 2008, RLJV applies for a writ of certiorari to quash the determination in part, insofar as it ordered payment by RLJV to ODG of the sum of $4,118,429.73.
4 RLJV's application also sought to quash that part of the determination by which the adjudicator found that ODG was entitled to retain the sum of $5,171,000. However, RLJV abandoned that part of its application before the hearing.
5 RLJV seeks an order nisi for a writ of certiorari quashing the determination in part. They also seek an order that the order nisi be made absolute and that the writ of certiorari be issued. (Orders were made by consent that the application for an order nisi and the application that the writ of certiorari be issued be heard together). Alternatively, RLJV seeks a declaration that the adjudicator did not have jurisdiction as regards the claim for $4,118,429.73. RLJV's opposition to ODG's application for leave to enforce the determination is based solely on its application to quash the determination for jurisdictional error. Thus the real issues relate to RLJV's application for a writ of certiorari or for a declaration.
6 The main issues on RLJV's application for relief are:
Did the application for adjudication fail to comply with s 26(1) of the Act insofar as ODG sought to advance the claim of $4,118,429.73?
If so, did the failure of the adjudicator to reject that claim on that ground constitute an error for which certiorari should lie on ground of excess of jurisdiction?
7 For the reasons that follow, I would determine both these issues adversely to RLJV and would, consequently, dismiss RLJV's application.
8 I propose to outline the facts, the provisions of the Act and RLJV's complaint, before turning to these issues.
The facts
9 The following facts are established by the affidavit evidence.
10 RLJV is the head contractor for what is termed the package 'A' works of the South-West Metropolitan Railway line under a contract with the Public Transport Authority of Western Australia.
11 ODG is a subcontractor to RLJV. By the Subcontract dated 14 February 2005 (the Subcontract) ODG agreed to carry out works, in broad outline, to supply and install electrical equipment and systems for the supply of power to trains, signalling systems and communication systems. The Subcontract was for a lump sum of $89,796,678.93, excluding GST.
12 The Subcontract includes provision in cl 37 for progress payments. Clause 37.1 and cl 37.2 are in these terms:
37.1 Progress claims
The Subcontractor shall claim payment progressively in accordance with Item 37.
An early progress claim shall be deemed to have been made on the date for making that claim.
Each progress claim shall be given in writing to the Subcontract Superintendent and shall include details of the value of WUS done and may include details of other moneys then due to the Subcontractor pursuant to provisions of the Subcontract .
37.2 Certificates
The Subcontract Superintendent shall, within 14 days after receiving such a progress claim, issue to the Main Contractor and the Subcontractor :
(a) a progress certificate evidencing the Subcontract Superintendent's opinion of the moneys due from the Main Contractor to the Subcontractor pursuant to the progress claim and reasons for any difference (' progress certificate '); and
(b) a certificate evidencing the Subcontract Superintendent's assessment of moneys due from the Subcontractor to the Main Contractor pursuant to the Subcontract .
If the Subcontractor does not make a progress claim in accordance with Item 37, the Subcontract Superintendent may issue the progress certificate with details of the calculations and shall issue the certificate in paragraph (b).
If the Subcontract Superintendent does not issue the progress certificate within 14 days of receiving a progress claim in accordance with subclause 37.1, that progress claim shall be deemed to be the relevant progress certificate .
The Main Contractor shall within 21 days after receiving both such certificates, or within 35 days after the Subcontract Superintendent receives the progress claim, pay to the Subcontractor the balance of the progress certificate after deducting retention moneys and setting off such of the certificate in paragraph (b) as the Main Contractor elects to set off. If that setting off produces a negative balance, the Subcontractor shall pay that balance to the Main Contractor within 21 days of receiving written notice thereof.
Neither a progress certificate nor a payment of moneys shall be evidence that the subject WUS has been carried out satisfactorily. Payment other than final payment shall be payment on account only. (original emphasis)
13 On 24 December 2007 ODG issued its progress claim No 44 for December 2007 (the December Claim). By the December Claim ODG claimed that an amount in excess of $43 million, exclusive of GST, was outstanding in relation to scope works completed and variation works under the Subcontract. The claim giving rise to this application, being a claim for $4,118,429.73, is not readily identifiable within the numerous individual component subclaims of the December Claim. However, it is common ground that this claim was, in some way, part of the total amount claimed in the December Claim.
14 It was agreed between the parties to treat the December Claim as having been received by RLJV on 7 January 2008.
15 On 21 January 2008 Mr Brady, the Subcontract Superintendent, issued a certificate under cl 37.2(a) of the Subcontract (the January Certificate) assessing that ODG was entitled to an amount of nil in relation to the December Claim. There was no specific reference in the January Certificate to the (approximately) $4 million claim giving rise to this application.
16 On 21 January 2008 Mr Brady also issued a certificate under cl 37.2(b) of the Subcontract (the 37.2(b) Certificate). That certificate certified that after setting-off the amounts paid by RLJV to ODG and the assessed progress, ODG owed RLJV the amount of $16,059,520.77.
17 As at January 2008 RLJV and ODG were in dispute in relation to various aspects of the works completed and amounts payable under the Subcontract. On 14 January 2008 an adjudication determination (the January Determination) was handed down in respect of an earlier progress claim by ODG, determining that RLJV was liable to pay ODG a sum in excess of $14 million and interest thereon. On 22 January 2008 RLJV and ODG entered an agreement referred to as the Standstill Agreement. By cl 1 of the Standstill Agreement ODG agreed not to enforce payment of the sum the subject of the January Determination or to take any other legal action against RLJV until 16 February 2008, with one exception. The exception was the making of an adjudication application by ODG under the Act in respect of RLJV's certification (by the January Certificate) of the December Claim (referred to in the Standstill Agreement as the December 2007 payment claim). By cl 2 of the Standstill Agreement, RLJV agreed not to take any legal action against ODG until 16 February 2008.
18 The parties agreed to meet, by their senior executives, and to use their best endeavours to resolve the whole of the dispute between them.
19 Clause 4 of the Standstill Agreement provided as follows:
If ODG does initiate adjudication application under the Act in respect of the RLJV's December 2007 payment claim certification the parties agree that no steps will be taken in the resultant adjudication (including the provision by ODG of the details in relation to the application which are otherwise required pursuant to section 26(2) of the Act and the written response by the RLJV which is otherwise required pursuant to section 27 of the Act) other than:
notification to the appointor;
appointment of the adjudicator;
i joint confirmation to the adjudication of written agreement in accordance with this clause;
a joint consent application to the adjudicator, pursuant to section 32(3) of the Act, for an extension of time prescribed by section 31(2) of the Act for making a determination such extension being until the expiration of 42 days after 1 March 2008 (or such later date as may be agreed in writing by the parties);
a step otherwise jointly agreed by the parties,
will be undertaken until after 1 March 2008 (or such later date as may be agreed in writing by the parties).
20 Clause 6 provided that if ODG is satisfied that RLJV has complied with its obligations under the Standstill Agreement, ODG will extend the period referred to in cl 1 to 1 March 2008, in which case RLJV would extend the period referred to in cl 2 to 1 March 2008.
21 After 22 January 2008, a number of meetings occurred between RLJV and ODG in an attempt to resolve the issues between the parties.
22 On 16 February 2008 ODG sent a demand for payment of the sum the subject of the January Determination.
23 On 29 February 2008 RLJV wrote to ODG advising that RLJV considered ODG's demand for payment was a breach of the Standstill Agreement and that, in consequence, RLJV was terminating the Standstill Agreement.
24 On 18 February 2008 ODG issued an application (the February Adjudication Application) for adjudication under the Act. The application comprised four pages and attachments. The application identified the prescribed appointor, the applicant, the applicant's representative and its address, the respondent and the Subcontract. The payment claim was identified as progress payments claimed by ODG under the December Claim. The due date for payment was said to be 11 February 2008. The amount claimed was said to be $23,143,729.59. The February Adjudication Application did not identify how the amount claimed was comprised. The amount paid by RLJV was said to be nil. Page 3 of the document concluded in the following terms:
ODG hereby applies for adjudication of the payment claim pursuant to section 25 of [the Act] as set out in the submissions to follow...
25 The fourth page comprised a table of contents of the attachments. At the bottom of that page it was stated 'further submissions deferred by agreement of the parties'. The attachments were the December Claim, the January Certificate, the 37.2(b) Certificate, the Standstill Agreement and the Subcontract.
26 On 6 March 2008 the adjudicator held a preliminary conference by telephone. RLJV submitted that the adjudicator should dismiss the application on the ground that it did not comply with the requirements of s 26(2) of the Act because the application did not set out the details of or have attached to it all the information, documentation and submissions on which ODG relied in the adjudication. After hearing submissions the adjudicator gave brief oral reasons for his decision to proceed with the adjudication. He stated that he would give written reasons for his decision to proceed with the adjudication in his reasons for determination.
27 By his letter of 6 March 2008 the adjudicator requested that:
(a) ODG provide such further submissions and materials as it considered necessary to fully inform the adjudicator with respect to the February adjudication application by 14 March 2008; and
(b) RLJV provide such further submissions and materials as it considered necessary to reply to ODG's further submissions by 31 March 2008.
The adjudicator said that he made those requests pursuant to s 32(2)(a) of the Act.
28 On 14 March 2008 and by letter of 25 March 2008, ODG made further submissions regarding the February Adjudication Application.
29 In its further submissions of 14 March 2008, ODG stated that the matters in dispute in the adjudication were:
(a) the delay cost claims in the sum of about $10.9 million;
(b) the reduced value of ATP transponders, about $6.4 million;
(c) overhead wires reduced value, about $5.2 million;
(d) the reduced value of other unvaried work, $4,118,429.73;
(e) other variations totalling about $1.4 million as set out in a schedule.
The claim summarised at par (d) is the subject matter of RLJV's application in these proceedings.
30 The total amount claimed by ODG, according to its further submissions of 14 March 2008, was $28,153,561.49.
31 On 18 March 2008 the adjudicator convened a telephone conference. He did so at the request of RLJV's solicitors who had expressed concern that the sum sought in the February Adjudication Application ($23,143,729.59) had increased in the further submissions of 14 March 2008.
32 The adjudicator's letter of 19 March 2008 recorded that ODG's solicitor had, during the telephone conference on 18 March 2008:
[E]xplained that in [ODG]'s haste to submit an application in the context of the Standstill Agreement, [ODG] had overlooked one category of rejection or reduction effected by the Subcontract Superintendent in progress certificate 44, namely the reduction in the value of unvaried or scope work.
That is plainly a reference to the other unvaried work claim in the sum of $4,118,429.73.
33 On 18 March 2008 the adjudicator gave oral reasons for his decision to dismiss the objection by RLJV and to permit the increased sum claimed in ODG's further submissions of 14 March 2008. By his letter of 19 March 2008 he set out his reasons for that decision in the following terms:
I ruled that I am prepared to consider the total claim now brought by the applicant, in the sum of $28,153,561.49. In the context of the Standstill Agreement, the spirit and intent of which I have previously noted and observed, there was no necessity for the actual figure claimed in the skeleton application to be completely accurate. Both parties were aware that the applicant intended in this adjudication to seek payment of progress claim 44 [ie the December Claim]; the precise sum by which that claim was reduced was not at that time to the point. Under the Standstill Agreement the parties did not intend that the respondent should prepare its response until after the applicant had delivered a fully particularised application. The respondent has not been prejudiced to any material extent in the preparation of its response by the inconsistent figures. In my opinion I should consider the entirety of the applicant's claim.
In this application RLJV contends in effect that that ruling (and the implicit maintenance of that ruling in the adjudicator's Determination and Reasons) involved a jurisdictional error on the part of the adjudicator.
34 On 31 March 2008 RLJV filed its response to ODG's further submissions. In its response, RLJV contended that ODG had widened the scope of claims the subject of the February Adjudication Application to include the other unvaried works claim. At pars 7.2 and 7.3 of its response RLJV submitted that Mr Davis did not have jurisdiction to consider the other unvaried works claim because that claim was not made within 28 days of the payment dispute arising.
35 On 10 April 2008, the adjudicator issued his determination in the February adjudication. He determined that the amount of $17,921,119.33 was payable by RLJV to ODG. That amount included the sum of $4,118,429.73 for 'the remainder of the unvaried scope works' ie the other unvaried work: see the adjudicator's Reasons [23.3] and [94].
36 In his reasons for determination, the adjudicator referred to RLJV's contention that the February Adjudication Application failed to comply with s 26(2) and that the application should be dismissed on that ground. The adjudicator referred to the width of the power of an adjudicator under s 32(2)(a). That power is to be exercised by an adjudicator 'in order to obtain sufficient information to make a determination.' The adjudicator stated that this power could be exercised to remedy the deficiency in the information contained in the application, in circumstances where it had been agreed by the parties under the Standstill Agreement that the application would be deficient in that respect. RLJV does not challenge that ruling in this application. That may be because, even if jurisdictional error were demonstrated, RLJV's agreement, by the Standstill Agreement, to non-compliance with s 26(2) may have provided a substantial obstacle to the favourable exercise of the discretion to grant relief.
37 The adjudicator's written reasons for determination did not address RLJV's submission that the adjudicator had no jurisdiction in respect of the other unvaried works claim. Evidently, that was because it had, in substance, been dealt with at the conference on 18 March 2008 and in the adjudicator's letter of 19 March 2008.
38 In light of RLJV's abandonment of its complaint in relation to the sum of $5,171,000, it is not necessary to detail the submissions and correspondence that lead the adjudicator to amend his determination on 10 May 2008. Nor is it necessary to detail the reasons of the adjudicator in amending his determination. The amendment did not affect the relevance of the claim for $4,118,429.73 which had been allowed by the adjudicator in his original determination on 10 April 2008.
39 It is convenient to outline the relevant provisions of the Act before turning to the ground on which RLJV contends the determination should be quashed (insofar as it permitted ODG to claim the sum of $4,118,429.73).
The Construction Contracts Act 2004
40 Some of the following summary draws on the outline of the Act I gave in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58.
41 The Act has, as its long title suggests, two primary objects. The first, dealt with in pt 2, relates to the content of construction contracts. The second primary object of the Act is to provide a means for adjudicating payment disputes arising under construction contracts. That is dealt with in pt 3 of the Act. These proceedings concern that second aspect of the Act.
42 Section 25 permits any party to a construction contract to apply to have a payment dispute adjudicated under pt 3 of the Act.
43 A payment dispute arises (relevantly) if by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full or the claim has been rejected or wholly or partly disputed: s 3 and s 6.
44 A payment claim may be a claim for payment by the contractor or by the principal: s 3. So far as is presently relevant, a payment claim includes a claim 'made under a construction contract by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract'.
45 Section 26 sets out the process for commencing adjudication of a payment dispute. An application must be made within 28 days after the payment dispute arises. Section 26 is in the following terms:
Applying for adjudication
(1) To apply to have a payment dispute adjudicated, a party to the contract, within 28 days after the dispute arises or, if applicable, within the period provided for by section 37(2)(b), must –
(a) prepare a written application for adjudication;
(b) serve it on each other party to the contract;
(c) serve it –
(i) if the parties to the contract have appointed a registered adjudicator and that adjudicator consents, on the adjudicator;
(ii) if the parties to the contract have appointed a prescribed appointor, on that appointor;
(iii) otherwise, on a prescribed appointor chosen by the party;
and
(d) provide any deposit or security for the costs of the adjudication that the adjudicator or the prescribed appointor requires under section 44(8) or (9).
(2) The application –
(a) must be prepared in accordance with, and contain the information prescribed by, the regulations;
(b) must set out the details of, or have attached to it –
(i) the construction contract involved or relevant extracts of it; and
(ii) any payment claim that has given rise to the payment dispute;
and
(c) must set out or have attached to it all the information, documentation and submissions on which the party making it relies in the adjudication.
(3) A prescribed appointor that is served with an application for adjudication made under subsection (1) must comply with section 28.
46 Section 27 sets out the process for responding to an application for an adjudication of a payment claim.
47 Section 30 provides that the object of an adjudication of a payment dispute is to determine the dispute fairly and as quickly, informally and inexpensively as possible. The explanatory memorandum for the Bill says, in reference to s 30, that the adjudicator is expected to balance the need for precision with the need for a rapid outcome.
48 Section 31 prescribes short time limits for an adjudicator to make a determination. The time limit for the making of a determination can be extended only with the consent of all parties.
49 Section 31(2)(a) provides that the adjudicator must dismiss the application without making a determination of its merits if any of s 31(2)(a)(i) to s 31(2)(a)(iv) apply. Otherwise, by s 31(2)(b), the adjudicator must determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment or to return any security, and if so, determine the amount to be paid or returned; any interest payable on it; and the date on or before which the amount is to be paid.
50 Section 31(2)(a) is in the following terms:
(2) An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) –
(a) dismiss the application without making a determination of its merits if -
(i) the contract concerned is not a construction contract;
(ii) the application has not been prepared and served in accordance with section 26;
(iii) an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or
(iv) satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason.
51 By s 31(3), if an application is not dismissed or determined under s 31(2) within the prescribed time, or any extension of time under s 32(3)(a), the application is taken to have been dismissed when the time has elapsed.
52 Section 37(2) makes provision in relation to an application that is, by operation of s 31(3), taken to be dismissed. RLJV made some submissions in relation to this section but the proper construction of s 37(2) does not seem to me to bear on the issues in this application.
53 By s 38, an appointed adjudicator's determination is binding on the parties to the construction contract under which the payment dispute concerned arose, even though other proceedings relating to the payment dispute have been commenced before an arbitrator or other person, or a court or other body. The explanatory memorandum describes this section as 'a key provision in this Act that ensures money continues to flow in the contracting chain, even though the claim for payment is disputed under the contract'.
54 Section 39(1) provides that a party who is liable to pay an amount under a determination must do so on or before the date specified by the determination.
55 Division 5, containing s 42 and s 43, sets out the rights a successful claimant has to enforce payment of a determination.
56 Section 42 permits a contractor to give to the principal notice of intention to suspend the performance of the contractor's obligations in circumstances where the principal has not paid in accordance with a determination. The explanatory memorandum says that this provision provides some incentive to ensure prompt payment, and gives the claimant protection if it stops work.
57 Section 43(2) provides that:
A determination may, with the leave of a court of competent jurisdiction, be enforced in the same manner as a judgment or order of the court to the same effect, and if such leave is given, judgment may be entered in terms of the determination.
58 By s 44(2), an adjudicator who dismisses a claim under s 31(2)(a) is entitled to be paid.
59 Section 45 is in the following terms:
Effect of this Part on civil proceedings
(1) This Part does not prevent a party to a construction contract from instituting proceedings before an arbitrator or other person or a court or other body in relation to a dispute or other matter arising under the contract.
(2) If other such proceedings are instituted in relation to a payment dispute that is being adjudicated under this Part, the adjudication is to proceed despite those proceedings unless all of the parties, in writing, require the appointed adjudicator to discontinue the adjudication.
(3) Evidence of anything said or done in an adjudication is not admissible before an arbitrator or other person or a court or other body, except for the purposes of an application made under section 29(3) or an appeal made under section 46.
(4) An arbitrator or other person or a court or other body dealing with a matter arising under a construction contract –
(a) must, in making any award, judgment or order, allow for any amount that has been or is to be paid to a party under a determination of a payment dispute arising under the contract; and
(b) may make orders for the restitution of any amount so paid, and any other appropriate orders as to such a determination.
60 The explanatory memorandum states that s 45(1) allows a complex claim to be fully and properly considered in parallel with an adjudication under the Act. Section 45(4) is said to allow for 'payments on account' made through adjudication under the Act to be allowed for or modified in arbitration or litigation.
61 Section 46 is in the following terms:
Review, limited right of
(1) A person who is aggrieved by a decision made under section 31(2)(a) may apply to the State Administrative Tribunal for a review of the decision.
(2) If, on a review, a decision made under section 31(2)(a) is set aside and, under the State Administrative Tribunal Act 2004 section 29(3)(c)(i) or (ii), is reversed the adjudicator is to make a determination under section 31(2)(b) within 14 days after the date on which the decision under section 31(2)(a) was reversed or any extension of that time consented to by the parties.
(3) Except as provided by subsection (1) a decision or determination of an adjudicator on an adjudication cannot be appealed or reviewed.
62 I turn to RLJV's complaint in relation to the determination.
RLJV's complaint
63 RLJV's complaint can be distilled into the following propositions:
The other unvaried work claim was part of the amount claimed in the December Claim (albeit not specifically identifiable).
The February Adjudication Application was made on 18 February 2008 and stated that the amount claimed was $23,143,729.59.
In the further submission of 14 March 2008 ODG sought to claim a total sum of $28,153,561.49 which was said to include an item 'reduced value of other unvaried work - $4,118,429.73'.
ODG admitted to the adjudicator (on 18 March 2008) that the February Adjudication Application had not included the claim for other unvaried work in the sum of $4,118,429.73.
Section 26(1) provides that in order to have a 'payment dispute' adjudicated, the applicant must prepare and serve an adjudication application within 28 days after the dispute arises.
The payment dispute in relation to the other unvaried work claim arose when the December Claim was rejected in the January Certificate on 21 January 2008.
In the circumstances, on a proper construction of the Act, that payment dispute was separate from the payment dispute or disputes the subject of the February Adjudication Application.
Accordingly the application, as it related to the claim for other unvaried work, was made outside the time delimited in s 26(1).
As a result, the adjudicator was obliged by s 31(2)(a)(ii) to dismiss the claim for other unvaried work.
Accordingly, the adjudicator did not have jurisdiction over or power in respect of the dispute relating to the claim for other unvaried work.
His determination should (to the extent that he considered and allowed the other unvaried work claim) be set aside on that ground.
64 Propositions 1 - 9 contend that the adjudicator erred in failing to dismiss the February Adjudication Application, insofar as ODG sought to claim the sum of $4,118,429.73, on the ground that such claim was made outside the time required by s 26(1) of the Act. Whether that is so is the first main issue. Propositions 10 and 11 contend that that error meant that the arbitrator had no jurisdiction, and prerogative relief to quash the determination should be given on that ground. Whether such relief should, on that ground, be given is the second main issue.
65 I begin by considering the first issue.
Did the adjudicator err in failing to dismiss the claim for other unvaried work for non-compliance with s 26(1)?
66 Propositions 1, 2, 3 and 5 are uncontroversial and I accept them. I am content to proceed on the assumed basis that proposition 4 is correct. Although ODG contended the contrary of proposition 4, it is not necessary to decide that issue because of the conclusions to which I have come in relation to propositions 6 and 7.
67 Proposition 7 is an essential element of RLJV's case. RLJV must show that the payment dispute in relation to the other unvaried work claim was a separate and distinct payment dispute from the payment dispute or disputes the subject of the February Adjudication Application (as made on 18 February 2008). If and only if that were so would there have been non-compliance with s 26(1) in relation to the other unvaried work claim. If the rejection of the other unvaried work claim was not a separate payment dispute, but was part of a wider payment dispute, and that wider payment dispute was the subject matter of the February Adjudication Application, then s 26(1) was complied with. The application was made within 28 days of when 'the dispute', as so characterised, arose. (Section 26(2) would, in these circumstances, not have been complied with in relation to the other unvaried work claim, but, for reasons I will explain, that would not assist RLJV).
68 Propositions 6 and 7 seem to me to raise a question of construction of the phrase 'payment dispute' in s 6 and s 26 , and a cognate question of construction of 'payment claim' in s 3. Section 26 directs attention to the time when the payment dispute the subject of a proposed adjudication application arose. The definition of payment dispute refers to the time when the amount claimed in a payment claim is due to be paid. Does a progress claim that comprises a number of individual claims constitute one payment claim, or a number of payment claims? If a contractor makes a number of individual claims in a progress claim, and the principal rejects some of those individual claims, is there one payment dispute in respect of the progress claim (to the extent that it was rejected) or is there a number of payment disputes in respect of each rejected individual claim?
69 RLJV's submissions did not approach the question in this way. That may have been because even if the individual component subclaims of a progress claim are separate payment claims, on a reading of the December Claim it would be difficult to identify the claim of $4,118,429.73 in respect of other unvaried work as a separate payment claim. As I have said, a claim in that amount and of that character is not readily identifiable within the December Claim, and senior counsel for RLJV accepted as much (although it is common ground that the other unvaried work claim is part of the amount claimed in the December Claim).
70 Senior counsel for RLJV submitted that:
(a) an applicant for adjudication may well seek to challenge, in an adjudication, part only of what was claimed in a progress claim and rejected by the principal;
(b) it is when an application under s 26 is made that the question of whether the requirements of that section are satisfied is to be addressed;
(c) the question of what payment dispute or disputes arose from the rejection by a principal of a progress claim is to be determined at the time an adjudication application is made and by reference to the claim or claims pursued by the contractor in the adjudication application. It is not a matter capable of being determined, or usefully to be determined, at the point in time when the principal rejected (in whole or in part) the progress claim;
(d) the nature of the task of the adjudicator under s 31(2)(b) - to determine whether any party is liable to make a payment - requires that the legal and factual basis for any claim sought to be the subject of an adjudication be identified in the application;
(e) that supports a conclusion that each component subclaim of a rejected progress claim which, taking into account the grounds of rejection, has a distinct legal or factual basis is a separate 'payment dispute' for the purposes of s 26 ;
(f) it would be contrary to the scheme of the Act if a contractor were permitted to prepare and serve an adjudication application relating to one disputed component of a progress claim and then, after the expiry of the 28 day period in s 26(1) , add a claim for additional components of the progress claim;
(g) consequently, the need to read s 26(1) with s 26(2) supports RLJV's construction relating to the identification of the relevant 'payment dispute'; and
(h) (apparently) the substance of s 6 is to identify the time at which a payment dispute arises; the section does not identify the content of the dispute.
71 If those propositions were accepted then it would follow that the rejection of the other unvaried work claim constituted or gave rise to a payment dispute that was separate from the payment dispute or disputes the subject of the February Adjudication Application. In particular, proposition (e) would, in the circumstances of this case, lead to that conclusion. Consequently, the application would have failed to comply with s 26(1) insofar as it related to the other unvaried work claim.
72 However, I do not accept the propositions at (c), (e), (g) or (h). I do accept the propositions at (a), (b), (d) and (f), but in my opinion those propositions are consistent with my preferred construction of 'payment claim' and 'payment dispute'. I outline my preferred construction below.
73 A difference between my construction, and the construction advanced by RLJV, may be illustrated by reference to the December Claim and the January Certificate. If the December Claim is not characterised as involving a single payment claim, it is difficult to identify the payment claims which it contained. Upon receipt by ODG of the January Certificate, what payment dispute or disputes had arisen? Senior counsel for RLJV did not provide an answer to that question. That was because, on RLJV's submissions, that question does not arise. Rather, the only question according to RLJV is to identify the payment dispute or disputes agitated in an adjudication application and then to identify when those disputes arose. Because it was common ground in this application that the other unvaried work claim was part of the December Claim, it followed, RLJV's submission continued, that the payment dispute in respect of that claim arose when ODG gave the January Certificate.
74 By contrast, I prefer a construction which enables the parties to identify the payment dispute or disputes arising from the rejection of a progress claim at the time of that rejection.
75 Such a construction is, I think, supported by the language of the Act. I do not accept RLJV's apparent contention that the substance of s 6 is only to identify the time at which a payment dispute arises, and not to identify the content of the dispute. Section 6 states that a payment dispute arises if , not when, by the time the amount claimed is due to be paid the amount has not been paid, or the claim has been rejected or wholly or partly disputed. Moreover, s 3 provides that 'payment dispute' has the meaning given to that term in s 6. Thus, in my opinion, s 6 does not merely identify the time at which a payment dispute arises; it identifies the payment dispute.
76 Consequently, at the time the amount claimed in a payment claim is due to be paid, the content of the payment dispute is then ascertainable. There will be a payment dispute to the extent that the amount claimed in the payment claim has not been paid in full or the claim has been rejected or wholly or partly disputed.
77 Thus the definition of payment dispute directs attention to the identification of the payment claim that gave rise to the dispute.
78 In my opinion, generally at least, a progress claim by a contractor will constitute one payment claim, not a series of payment claims each constituted by the individual component subclaims within the progress claim. Such a construction is consistent with the language of the definition of 'payment claim' in s 3 as being a claim for payment 'of an amount in relation to the performance by the contractor of its obligations'. The 'amount' can be seen as a reference to the total amount claimed in the progress claim, rather than to the amount of each individual component subclaim. Further, in my opinion, the object and purpose of the Act is advanced by that construction no less than a construction that each individual component subclaim of a progress claim is a separate payment claim. That opinion takes into account the operation of s 26(2) of the Act. I will say more about that subsection shortly.
79 Consequently, when a progress claim is rejected, generally that will give rise to a single payment dispute.
80 I have expressed the position in the preceding paragraphs as being the general position. Depending on the circumstances and the contents of a progress claim, it may be that, in some cases, a progress claim may be characterised as containing more than one payment claim. However, for the reasons I have given, in my opinion that will be so only if the contents of the progress claim and the circumstances existing at the time of the claim justify such a conclusion. There is, in my opinion, on the evidence before me, nothing to sustain the conclusion that the December Claim, construed in the circumstances then existing, contained more than one separate payment claim one of which was the other unvaried work claim.
81 Even if, contrary to my view, 'payment claim' is construed to mean that individual component subclaims of a progress claim are separate payment claims, such a construction would not seem to assist RLJV. That is because, as I have said, it is difficult to identify the other unvaried work claim as a separate component of the December Claim.
82 For these reasons, I am not persuaded that the other unvaried work claim was a separate payment claim from the payment claim or claims comprising the December Claim and the subject matter of the February Adjudication Application (as made on 18 February 2008).
83 I accept that the Act is to be construed in the framework that the subject matter of an adjudication application may be only a subset of the payment dispute or disputes that arose upon the rejection of a progress claim. In other words, a contractor whose progress claim was rejected may well choose to advance in an adjudication application only part of what was claimed in the progress claim and rejected.
84 I also accept RLJV's contention that, if an adjudication application is prepared and served, and that application relates only to a particular subset of the payment dispute (or disputes) that arose upon the rejection of a progress claim, the applicant cannot, after the expiry of the 28 day limit referred to in s 26(1) , add a claim for additional component claims of the progress claim. However, I do not accept that that proposition supports RLJV's construction of 'payment dispute' and 'payment claim'. When an application for adjudication is prepared and served, s 26(2)(c) requires that the application set out or have attached to it all the information, documentation and submissions on which the applicant relies in the adjudication. Any attempt by an applicant to add additional component subclaims to the subject matter of an adjudication application, after the 28 day time period has expired, would fail. In my opinion, that would be by force of s 26(2)(c) , not because the additional component subclaims of the progress claim are necessarily different payment claims. It is not necessary to construe 'payment claim' as meaning that each component subclaim is a separate payment claim in order to reach that outcome. Nor is it necessary to adopt RLJV's construction of 'payment dispute' to reach that outcome.
85 For the reasons I have given, on a proper construction of the Act:
(a) I am not persuaded that the January Certificate gave rise to a dispute in respect of the other unvaried work claim that was separate from the payment dispute (or disputes) the subject of the February Adjudication Application;
(b) any omission in the February Adjudication Application in respect of the other unvaried work claim would have been a matter for complaint under s 26(2) but did not involve a failure to comply with the time limit in s 26(1) ;
(c) accordingly, there was no error by the arbitrator in deciding that s 26(1) did not remove his jurisdiction in respect of the other unvaried work claim.
As I have said, RLJV makes no complaint in these proceedings as regards non-compliance with s 26(2).
86 It follows from these conclusions that RLJV's application should be dismissed. There having been, on my analysis, no error by the adjudicator in relation to s 26(1) , the question of whether such an error was a jurisdictional error does not arise. Nonetheless, for the sake of completeness, I will state my conclusions on the question of whether certiorari would lie in respect of an adjudication where the application for adjudication failed to comply with s 26(1) of the Act.
Is a failure to dismiss an adjudication application that does not comply with s 26(1) a jurisdictional error for which certiorari lies?
87 Whether an error by an adjudicator in failing to dismiss an adjudication application because it does not comply with s 26(1) attracts a grant of prerogative relief involves the application of common law principles to the Construction Contracts Act . Other States and Territories have legislation that creates a substantially similar scheme for the enforcement by contractors of contractual rights to payment under construction contracts. Corresponding questions, as to the availability of prerogative or other relief in respect of the grounds of jurisdictional error, have arisen elsewhere in Australia, especially in New South Wales. Because, as I will explain, the legislation in the other States is materially different, the decisions in those States do not engage the principle that intermediate appellate courts and trial judges should not depart from decisions in intermediate appellate courts in other jurisdictions on the interpretation of uniform national legislation or on matters of common law unless convinced the decision is plainly wrong (as to which see Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485 , 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135]).
88 Nonetheless, as the parties framed their submissions partly by reference to the approach taken in New South Wales, it is convenient to outline that approach before focusing on the position in Western Australia under the Act. I will also make brief mention of the approach in Queensland and the Northern Territory.
The approach taken in New South Wales, Queensland and the Northern Territory
89 In Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421, the New South Wales Court of Appeal considered the availability of relief in the nature of certiorari, or other curial relief, in relation to an adjudication made under the Building and Construction Industry Security of Payment Act 1999 (NSW). Hodgson JA (Mason P and Giles JA agreeing) concluded as follows:
I agree with McDougall J that the scheme of the Act appears strongly against the availability of judicial review on the basis of non-jurisdictional error of law. The Act discloses a legislative intention to give an entitlement to progress payments, and to provide a mechanism to ensure that disputes concerning the amount of such payments are resolved with the minimum of delay. The payments themselves are only payments on account of a liability that will be finally determined otherwise: s 3(4) and s 32. The procedure contemplates a minimum of opportunity for court involvement: s 3(3) and s 25(4). The remedy provided by s 27 can only work if a claimant can be confident of the protection given by s 27(3): if the claimant faced the prospect that an adjudicator's determination could be set aside on any ground involving doubtful questions of law, as well as of fact, the risks involved in acting under s 27 would be prohibitive, and s 27 could operate as a trap.
However, it is plain in my opinion that for a document purporting to be an adjudicator's determination to have the strong legal effect provided by the Act, it must satisfy whatever are the conditions laid down by the Act as essential for there to be such a determination. If it does not, the purported determination will not in truth be an adjudicator's determination within the meaning of the Act: it will be void and not merely voidable. A court of competent jurisdiction could in those circumstances grant relief by way of declaration or injunction, without the need to quash the determination by means of an order [in] the nature of certiorari.
What then are the conditions laid down for the existence of an adjudicator's determination? The basic and essential requirements appear to include the following:
The existence of a construction contract between the claimant and the respondent, to which the Act applies (s 7 and s 8).
The service by the claimant on the respondent of a payment claim (s 13).
The making of an adjudication application by the claimant to an authorised nominating authority (s 17).
The reference of the application to an eligible adjudicator, who accepts the application (s 18 and s 19).
The determination by the adjudicator of this application (s 19(2) and s 21(5)), by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable (s 22(1)) and the issue of a determination in writing (s 22(3)(a)).
The relevant sections contain more detailed requirements: for example, s 13(2) as to the content of payment claims; s 17 as to the time when an adjudication application can be made and as to its contents; s 21 as to the time when an adjudication application may be determined; and s 22 as to the matters to be considered by the adjudicator and the provision of reasons. A question arises whether any non-compliance with any of these requirements has the effect that a purported determination is void, that is, is not in truth an adjudicator's determination. That question has been approached in the first instance decision by asking whether an error by the adjudicator in determining whether any of these requirements is satisfied is a jurisdictional or non-jurisdictional error. I think that approach has tended to cast the net too widely; and I think it is preferable to ask whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator's determination.
In my opinion, the reasons given above for excluding judicial review on the basis of non-jurisdictional error of law justify the conclusion that the legislature did not intend that exact compliance with all the more detailed requirements was essential to the existence of a determination: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 - 391. What was intended to be essential was compliance with the basic requirements (and those set out above may not be exhaustive), a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and reasonably capable of reference to this power (cf R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598) , and no substantial denial of the measure of natural justice that the Act requires to be given. If the basic requirements are not complied with, or if a purported determination is not such a bona fide attempt, or if there is a substantial denial of this measure of natural justice, then in my opinion a purported determination will be void and not merely voidable, because there will then not, in my opinion, be satisfaction of requirements that the legislature has indicated as essential to the existence of a determination. If a question is raised before an adjudicator as to whether more detailed requirements have been exactly complied with, a failure to address that question could indicate that there was not a bona fide attempt to exercise the power; but if the question is addressed, then the determination will not be made void simply because of an erroneous decision that they were complied with or as to the consequences of non-compliance.
It was said in the passage in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 ; [1969] 2 AC 147 , quoted by McDougall J, that a decision may be a nullity if a tribunal has refused to take into account something it was required to take into account, or based its decision on something it had no right to take into account. However, in Craig v South Australia (at 177) the High Court said that this would involve jurisdictional error if compliance with the requirement in question was made a pre-condition of the existence of any authority to make the decision. I do not think that compliance with the requirements of s 22(2) are made such pre-conditions, for the same reasons as I considered the determination not to be subject to challenge for mere error of law on the face of the record. The matters in s 22(2), especially in pars (b), (c) and (d), could involve extremely doubtful questions of fact or law: for example, whether a particular provision, say an alleged variation, is or is not a provision of the construction contract; or whether a submission is 'duly made' by a claimant, if not contained in the adjudication application (s 17(3)(b)), or by a respondent, if there is a dispute as to the time when a relevant document was received (s 20(1) and s 22(2)). In my opinion, it is sufficient to avoid invalidity if an adjudicator either does consider only the matters referred to in s 22(2), or bona fide addresses the requirements of s 22(2) as to what is to be considered. To that extent, I disagree with the views expressed by Palmer J in Multiplex Constructions Pty Ltd v Luikens
....
The question then is whether there is available a remedy in the nature of certiorari, in circumstances where the determination is not void by reason of defects of the kind I have been discussing. In my opinion it is not, because the availability of certiorari in such circumstances would not accord with the legislative intention disclosed in the Act that these provisional determinations be made and given effect to with minimum delay and minimum court involvement; and because it is by no means clear that an adjudicator is a tribunal exercising governmental powers, to which the remedy in the nature of certiorari lies.
For these reasons, I disagree with the view expressed in Musico and the cases which followed it, to the extent that they hold that relief in the nature of certiorari is available to quash a determination which is not void [51] - [56]; [58] - [59].
The approach stated in Brodyn Pty Ltd was also applied in Transgrid v Siemens Ltd [2004] NSWCA 395; (2004) 61 NSWLR 521 [29] - [30].
90 In Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; (2005) 63 NSWLR 385, leave to reargue Brodyn Pty Ltd was refused by the Court of Appeal: [49], [69]. Basten JA stated that there were aspects of the reasoning in Brodyn Pty Ltd that might require reconsideration: [71] - [77]. Basten JA made the following observations as to what he considered had been decided by Brodyn Pty Ltd :
The first question identified in relation to Brodyn , at [47] above, implies that, according to Brodyn , a determination may be challenged if invalid, in the sense that it is attended by jurisdictional error, but may not be 'quashed, for example for error of law on the face of the record'. If Brodyn in fact drew a distinction in those terms, there is an arguable case for reconsideration. That is because, to state the question in this way, would appear to involve a departure from the question set out in Brodyn at [54] which asks whether a requirement was intended by the legislature to be an essential precondition to the exercise of power. In relation to questions of law, the issue is whether the adjudicator was intended by Parliament to have power to determine such questions or, as it is sometimes put, only to apply the law correctly. As Craig v South Australia demonstrates, there is an important distinction to be drawn (at least in this country) between administrative decision-makers and courts of law: 184 CLR at 179. Properly understood, Brodyn may be saying that the structure of the Act demonstrates that, contrary to the general rule with respect to administrative tribunals, an adjudicator has been given power to determine a payment claim so long as he or she takes into account the legal parameters prescribed by the Act and the contract, and whether or not the decision actually made reflects a correct understanding of the legal principles to be derived from those sources. If that is the correct understanding of the judgment of Brodyn in this Court, it would appear to accord with the judgment of Einstein J at first instance, and with the approach adopted by McDougall J in Musico v Davenport [2003] NSWSC 977, as noted by Palmer J, in reaching a similar conclusion, in Multiplex Constructions Pty Ltd v Luikens (above) at [42]. Nothing put to the Court in this case demonstrated any basis for reconsideration of that aspect of Brodyn , so understood [78].
91 In Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229, leave to reargue Brodyn Pty Ltd was also refused: [32]. Basten JA said as follows:
For reasons explained in Hargreaves at [72] - [77], it is not possible to construe s 13(2) as doing otherwise than imposing mandatory requirements with respect to the making of payment claims. However, it does not follow that the Court should set aside a determination in circumstances where, in its view, the claim does not satisfy those requirements, or the determination goes beyond the parameters of the claim, properly understood. Intervention on that basis will only be justified if the legislature has imposed an objective requirement, rather than one which the adjudicator has power to determine. It is well established that the mere fact that a requirement is objectively expressed, rather than by reference to the satisfaction of the officer or tribunal concerned, is not decisive of the construction issue. Indeed, in relation to inferior courts, it has been said that there is a strong presumption against any jurisdictional qualification being interpreted as contingent upon the actual existence of a state of facts, as opposed to the decision-maker’s opinion in that regard: see Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391 (Dixon J). A factor favouring that approach is 'the inconvenience that may arise from classifying a factual reference in a statutory formulation as a jurisdictional fact': Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55 at 72 (Spigelman CJ) [44].
92 In John Holland Pty Ltd v Roads and Traffic Authority of NSW [2007] NSWCA 19 [62] Hodgson JA summarised the effect of Brodyn Pty Ltd as being that although there was not, in the New South Wales Act, an explicit exclusion of the jurisdiction of the court (ie there was no privative clause) an intention was disclosed by the Act to exclude intervention for errors of law or other errors short of errors causing invalidity, and that in those circumstances the Hickman criteria ( R v Hickman; Ex parte Fox & Clinton [1945] HCA 53 ; (1945) 70 CLR 598) were applicable. Basten JA reiterated his view that the power to resolve questions said to be pre-conditions to the valid exercise of power by the adjudicator were, on a proper analysis, questions for the adjudicator and not for the objective determination of the court: [71] - [72].
93 In Downer Construction (Australia) Pty Ltd v Energy Australia [2007] NSWCA 49; (2007) 69 NSWLR 72, the New South Wales Court of Appeal again refused an application to reopen Brodyn Pty Ltd . Giles JA (Santow & Tobias JJA agreeing) referred to Brodyn Pty Ltd and to the observations of Basten JA in some of the cases to which I have referred: see [81] - [87]. Giles JA concluded [87] that determination of the parameters of the payment claim is a matter for the adjudicator. In refusing leave to reargue Brodyn Pty Ltd , Giles JA observed that:
The Act's oft-recognised objective of speedy but interim resolution of claims, attendant with the possibility of error and confined curial intervention, ... weighs heavily against substantive change in the current approach to challenges to determinations under the Act [98].
94 In Queensland, the availability of prerogative relief is controlled by legislation: Judicial Review Act 1991 (Qld). It appears to have been accepted, in decisions in Queensland, that at common law certiorari would have lain in respect of an adjudication made in excess of jurisdiction in that an essential pre-condition to jurisdiction would not have existed: Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83 [61]; J Hutchinson Pty Ltd v Galform Pty Ltd [2008] QSC 205 [28].
95 Neither the New South Wales legislation nor the Queensland legislation has provisions mirroring s 31 or s 46 of the Construction Contracts Act 2004 (WA).
96 The Northern Territory legislation (the Construction Contract (Security of Payments) Act (NT)) has provisions corresponding to s 31 and s 46. In Independent Fire Sprinklers (NT) Pty Ltd v Sunbuild Pty Ltd [2008] NTSC 46 [32] - [50] (Mildren J) the court held that:
(a) non-compliance with the time limit for preparing and serving an adjudication application was a question for the adjudicator, not a matter for objective determination by a court (referring to Parisienne Basket Shoes Pty Ltd v Whyte (1937 - [1938] HCA 7 ; 1938) 59 CLR 369) [40] - [48];
(b) an adjudication is not void if the adjudicator wrongly concludes that the time limit has been complied with [48];
(c) certiorari does not lie to quash an adjudication on the ground that the adjudication application was not prepared and served within the time limit [50].
97 I turn to the question of whether a failure to dismiss an adjudication that was commenced outside the time required by s 26(1) constitutes a jurisdictional error attracting prerogative relief.
Is certiorari available in respect of an adjudication?
98 Certiorari is available in respect of a person or body of persons having legal authority to determine questions affecting rights when such person or body acts in excess of its authority: R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171, 205; Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 , 174 - 175 (footnote 53).
99 ODG submitted that an adjudication determination is not susceptible of the writ of certiorari because it does not affect rights. That is because, the submission continues, the determination of an adjudication application does not determine the parties' substantive rights; the parties' substantive rights are left to be determined by litigation or arbitration: s 45.
100 I do not accept that submission. It is true that an adjudication determination does not finally determine the parties' substantive rights. Nonetheless, in my opinion an adjudication determination has a discernible or sufficient effect on the rights of the parties: Hot Holdings Pty Ltd v Creasy [1995] HCA 60 ; (1996) 185 CLR 149, 159, taking into account the following features of the statutory scheme:
(a) A determination is binding: s 38;
(b) The party liable to pay under the determination must do so on or before the date specified in the determination: s 39;
(c) A determination can, with leave, be enforced as if a judgment of the court: s 43;
(d) A determination can, if unpaid, empower the contractor to suspend further performance: s 42.
101 That conclusion invites attention to the grounds upon which certiorari might lie in respect of an adjudication determination. In Craig (176) the court said that in considering what constitutes jurisdictional error it is necessary to distinguish between inferior courts on the one hand and tribunals exercising governmental powers on the other. The crucial question is whether the decision-maker has authority to determine questions of law authoritatively or to make decisions otherwise than in accordance with the law. If it does, the test for jurisdictional error will be that which applies to an inferior court: Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125 ; (2007) 34 WAR 342 [14]; Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [109] (Martin CJ), [181] (McLure JA).
102 In my opinion, for the purposes of an adjudication, bearing in mind that the adjudication does not determine the parties' substantive rights, and taking into account the scheme of the Act as a whole, an adjudicator has authority to decide questions of law authoritatively and wrongly. Thus, in my opinion, the test for jurisdictional error (if certiorari does lie) is that applicable to an inferior court. RLJV's submissions did not suggest otherwise.
103 In Re Carey [181] McLure JA summarised the five categories of jurisdictional error, in respect of inferior courts and analogous bodies, identified in Craig , as follows:
The scope of jurisdictional error depends upon whether or not the decision-maker has authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law: Craig at 179. If it does not have authority to do either, there can be judicial review in the broad sense where the distinction between jurisdictional error and error within jurisdiction is of no practical significance. If the decision-maker has that authority, the Court's judicial review powers are confined to errors of jurisdiction in the narrow sense. The High Court in Craig identified five types or categories of such errors. It did not suggest the list was exhaustive. However, the appellants did not contend it should be expanded in any particular way to accommodate the errors in this case. The five categories are as follows. First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the Court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case [181].
That summary was adopted in McCourt [16].
104 RLJV's submissions in effect invoke the third category of error identified in that summary.
105 RLJV submits that s 31(2)(a) unambiguously identifies essential pre-conditions to the exercise of jurisdiction by an adjudicator, namely that:
(a) the contract is a construction contract;
(b) the adjudication application has been prepared and served in accordance with s 26;
(c) there is not already an order, judgment or other finding by an arbitrator or court or other similar body dealing with the matter the subject of the application.
106 In addition, the submission continues, s 31(2)(a) stipulates the consequence of the non-existence of any of those conditions; the application must be dismissed without determining the merits. That is said to reveal an intention that there cannot be a valid adjudication determination if s 26 had not been complied with.
107 But for s 46 of the Act, there would be considerable force in those submissions.
108 I turn to the question of the effect of s 46 of the Act which is, in my opinion, of decisive significance to the availability of prerogative relief in respect of alleged non-compliance with s 26.
109 Section 46(3) is in the nature of a privative clause.
110 Section 46(3) does not refer, in terms, to an application for a writ of certiorari or other prerogative relief. Rather, it provides, in more general language, that (except as provided in s 46(1)) a determination cannot be appealed or reviewed.
111 In legislation that creates a statutory power, a privative clause is not to be construed in isolation from the legislation as a whole, including the provisions which may appear to place limits on the exercise of the power in question. In this regard, any apparently conflicting provisions must be construed so as to reconcile those provisions. In each case, this is a process of construction of the statutory provisions in question. On a proper construction, there may or may not be an apparent inconsistency: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 [26], [33], [60]; Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11 ; (1997) 191 CLR 602, 631.
112 The presence of the privative clause may be relevant to whether compliance with a particular requirement of the Act is construed as being essential to the validity of the exercise of power: Plaintiff S157/2002 [61] - [70].
113 In construing the legislation as a whole, it is necessary:
[T]o consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action.
R v Murray; Ex parte Proctor [1949] HCA 10 ; (1949) 77 CLR 387 , 400; Plaintiff S157/2002 [20], [65].
114 Another way of expressing that question is to ask whether it is a purpose of the legislation that an act done in breach of the provision should be invalid: Plaintiff S157/2002 [20] (Gleeson CJ, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355, 390).
115 Because it is presumed that Parliament does not intend to cut down the jurisdiction of the courts save as to the extent that the legislation in question expressly states or necessarily implies, privative clauses are strictly construed: Plaintiff S157/2002 [32], [72].
116 RLJV's submissions point out that the New South Wales Court of Appeal in Brodyn Pty Ltd accepted that relief should be granted when the essential requirements for an adjudication do not exist. In Brodyn Pty Ltd , the court sought to divine the essential requirements by a process of construction of the legislation. By contrast, RLJV submits, s 31(2)(a) identifies the essential requirements and unambiguously stipulates the consequences of non-compliance. In that context, RLJV submits that consistency between s 26 and s 31 on the one hand, and s 46(3) on the other, is achieved by construing s 46(3) as not precluding intervention for jurisdictional error arising from non-compliance with s 26. Any other construction would, the submission continues, defeat the intention reflected in the clear language of s 26 and s 31 by enabling an adjudicator to act inconsistently with and beyond those provisions.
117 The force of these submissions is, in my opinion, affected by the proper construction of s 46(1).
118 Section 46(1) permits a person who is aggrieved by a decision made under s 31(2)(a) to apply to the State Administrative Tribunal for a review of the decision.
119 Plainly, an applicant for adjudication who is aggrieved by a decision to dismiss the application under s 31(2)(a) has a right of review under s 46(1). The question for present purposes is whether a respondent to an adjudication application who unsuccessfully invites dismissal by the adjudicator under s 31(2)(a) is thereby aggrieved by the 'decision' not to dismiss the adjudication application. RLJV and ODG both accepted that s 46(1) applied in these circumstances. (RLJV's acceptance of that proposition was subject to a qualification, relating to the notion of a 'decision', to which I will return.)
120 Such a construction of s 46(1) is supported by both its language and by consideration of the scheme of the Act as a whole. An adjudicator who rejects a respondent's submission that the application must be dismissed under s 31(2)(a) may be said to have made a decision to that effect. The matters emphasised in RLJV's submissions as to the intention and purpose to be discerned from s 26 and s 31 would, in my opinion, support such a construction of s 46(1). Section 31(2)(a) stipulates that if any of the conditions in subparagraphs (i) - (iv) exist, the application must be dismissed without determining the merits. That reveals an intention that the non-existence of those conditions is fundamental and essential to an adjudication application. That intention is consistent with and advanced by a construction of s 46(1) as enabling a respondent to an adjudication application to apply to the State Administrative Tribunal for the correction of an erroneous refusal by an adjudicator to dismiss the application under s 31(2)(a).
121 If this construction of s 46(1) is accepted then it seems to me that much of the force of RLJV's submissions as to the construction of s 46(3) falls away. On this construction of s 46(1), it would not be necessary to preserve the availability of prerogative relief regarding errors respecting compliance with s 26 of the Act in order to give full force to the statutory command in s 31(2)(a). That is because any error by an adjudicator respecting compliance with s 26 could be corrected by invoking the right of review under s 46(1). Moreover, an appeal to this court on a question of law would lie, with leave, from the decision of the State Administrative Tribunal: State Administrative Tribunal Act 2004 (WA) s 105.
122 In construing the Act it is to be borne in mind that the object of the scheme created by the Act is, as described in the explanatory memorandum and the Second Reading Speech, to 'keep the money flowing in the contracting chain by enforcing timely payment and sidelining protracted disputes'. That object is, in my opinion, advanced by a construction of s 46 as:
(a) permitting a right of review under s 46(1) in relation to questions arising under s 31(2)(a) ; and
(b) excluding the availability of prerogative relief in relation to jurisdictional error said to be constituted by failure to dismiss under s 31(2)(a).
In my opinion the legislature can be taken to know that merits review by the State Administrative Tribunal regarding an issue of compliance with s 26 is likely to be a considerably more expeditious process than application to this court for prerogative relief.
123 Senior counsel for RLJV submitted that an important limitation on the scope of the right of review provided by s 46(1) arose from the need to identify a 'decision'. There would be a decision within the meaning of s 46(1) , he submitted, only if there were a legal or factual issue as to whether the adjudicator should dismiss under s 31(2)(a). If on a proper analysis there was no legal or factual issue in that regard, so that the power to determine the payment dispute on its merits never arose, then there was no 'decision' within s 46(1).
124 I do not accept that submission. In particular, I do not accept that the concept of a 'decision' for the purposes of s 46(1) relies on the existence of what is, on a proper analysis, an issue of fact or law. RLJV's submission seems to me to require placing a gloss on the ordinary meaning of 'decision'. Moreover, I do not think that the object and purpose of the Act supports RLJV's submission.
125 As RLJV's submissions emphasise, s 31(2)(a) is an important provision that spells out the duty of an adjudicator to dismiss an adjudication application, without determining the merits, in the circumstances set out in subparagraphs (i) - (iv). In that context, I am not persuaded that the scope of the right of review under s 46(1) should be diminished by the construction of 'decision' invited by RLJV. On RLJV's submissions, an application for review would be available in respect of an erroneous dismissal, or refusal to dismiss, under s 31(2)(a) if and only if the position in that regard, before the adjudicator, was arguable, in that there was a legal or factual issue requiring a 'decision'. There would be no right to apply for a review in respect of an error in dismissing or declining to dismiss if it were a clear case in which there was, on a proper analysis, no real legal or factual issue. That seems to me unlikely to have been intended and not to be supported by the intention revealed by the Act.
126 In my opinion, there will be a 'decision' under s 31(2)(a) for the purposes of s 46(1) , if the adjudicator:
(a) dismisses the application without making a determination of its merits in reliance on s 31(2)(a) ; or
(b) rejects a submission of a respondent to an adjudication application that the application should be dismissed under s 31(2)(a).
127 I note that a contrary conclusion was reached in Diploma Construction Pty Ltd and Esslemont Nominees Pty Ltd [2006] WASAT 350. In that case Senior Member Raymond held that the right of review in s 46(1) was not engaged when an adjudicator found that the adjudication application should not be dismissed. He construed s 46(1) as applying only when there was a dismissal under s 31(2)(a). Neither party in the case before me contended for such a construction. In any event, for the reasons I have given, I have, with respect, come to a different conclusion as to the proper construction of s 46(1).
128 In my opinion, on a proper construction of the Act, when account is taken of s 46(1) (as I have construed it), s 46(3) and the Act as a whole reveal an intention to exclude the availability of certiorari in respect of an error regarding compliance with s 26 of the Act.
129 Another way of coming to what is, in substance, the same conclusion, taking up the approach of Basten JA in the New South Wales cases to which I have referred, would be to say that, on the proper construction of the Act, whether there has been compliance with s 26(1) is a matter for the adjudicator and for the State Administrative Tribunal on a review under s 46(1) ; it is not a matter for objective determination by the court. Apart from the reference to s 46(1) , that was the approach taken by Mildren J in Independent Fire Sprinklers [32] - [50].
130 If I am wrong in my conclusion that s 46(3) excludes prerogative relief in respect of errors regarding compliance with s 26 , then I would, on my construction of s 46(1) , refuse relief on the discretionary ground that RLJV failed to exercise its right of review under s 46(1) (as to which see Re Carey [134] - [140]).
131 If I am wrong in my construction of s 46(1) , there may still be a question whether s 46(3) should be construed as excluding certiorari. Section 46(1) relates specifically to decisions under s 31(2)(a). If s 46(1) is construed as limited to decisions to dismiss an adjudication application, then, by definition, the conclusion is that Parliament did not intend the right of review under s 46(1) to extend to a decision not to dismiss. There may be a question as to the likelihood that Parliament intended to exclude a review by the State Administrative Tribunal of a decision under s 31(2)(a) not to dismiss, yet intended to preserve the availability of the slower and more cumbersome prerogative relief.
132 Moreover, I note that in Independent Fire Sprinklers Mildren J reached substantially the same conclusion as I have, but without adopting my construction of s 46(1). His Honour's conclusions were, as I have said, based on his construction of the Act as a whole that whether the application was prepared and served in time is a matter for the adjudicator. That is substantially the approach adopted by Basten JA in the New South Wales cases. Thus if I am wrong in my construction of s 46(1) , there would be a question whether the same conclusion should be reached for the reasons given by Mildren J.
133 However, in light of my conclusions as to the construction of s 46(1) , it is not necessary to say more about these questions.
Conclusion
134 For these reasons, while I would grant an order nisi, I would dismiss RLJV's application.
135 On ODG's application under s 43(2) of the Act for leave to enforce a determination, it is for RLJV as respondent to point to circumstances which justify a refusal to grant leave: O'Donnell Griffin .
136 RLJV's opposition to ODG's application for leave to enforce the determination is based on RLJV's application for prerogative or other relief. RLJV's application having failed, leave to enforce should be granted.
137 I would hear from the parties as to the precise form of order and as to costs.