Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 (24 September 2010)
Last Updated: 27 September 2010
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190
FILE NUMBER(S):
2010/076539
HEARING DATE(S):
2 August 2010
JUDGMENT DATE:
24 September 2010
PARTIES:
Chase Oyster Bar Pty Ltd (First Appellant)
Cheryl Fran (Second Appeallant)
Paul Della Marta (Third Appellant)
Hamo Industries Pty Ltd (First Respondent)
Peter Finnane (Second Respondent)
Attorney-General of NSW (Intervenor)
St Hilliers Contracting Pty Ltd (Intervening Applicant)
Dualcorp Civil Pty Ltd (Intervening Respondent)
JUDGMENT OF:
Spigelman CJ Basten JA McDougall J
LOWER COURT JURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
2010/76539
LOWER COURT JUDICIAL OFFICER:
McDougall J
LOWER COURT DATE OF DECISION:
21 April 2010
LOWER COURT MEDIUM NEUTRAL CITATION:
Chase Oyster Bar v Hamo Industries [2010] NSWSC 332
COUNSEL:
B DeBuse (Apellants)
B D Hodgkinson SC / C A Bolger (First Respondent)
Submitting Appearance (Second Respondent)
M G Sexton SG, SC / J K Kirk (Intervenor)
G Inatey SC / D A C Robertson (Intervening Applicant)
M A Ashhurst SC (Intervening Respondent)
SOLICITORS:
Watson & Watson (Appellants)
Fordham Lawyers (First Respondent)
MBA Lawyers (Second Respondent)
Crown Solicitors Office (Intervenor)
Colin Biggers & Paisley (Intervening Applicant)
Moray & Agnew (Intervening Respondent)
CATCHWORDS:
ADMINISTRATIVE LAW – judicial review – grounds of review – Building and Construction Industry Security of Payment Act 1999 – whether an incorrect determination by an adjudicator that a s 17(2) notice was served within the prescribed time amounts to jurisdictional error – whether Brodyn Pty Ltd v Davenport correctly decided.
ADMINISTRATIVE LAW – prerogative writs and orders – certiorari – Building and Construction Industry Security of Payment Act 1999 – whether determinations by adjudicators amenable to orders in the nature of certiorari for jurisdictional error – whether adjudicators are exercising a statutory function – whether there is a superadded requirement that an adjudicator is subject to a “duty to act judicially” before being amenable to prerogative writs.
ADMINISTRATIVE LAW – judicial review – privative clauses – Building and Construction Industry Security of Payment Act 1999 – whether the Act limits the power of the Supreme Court to review an adjudicator’s determination – whether such a limitation is permissible in light of Kirk v Industrial Relations Commission.
BUILDING AND CONSTRUCTION – security of payment – procedure for recovering progress payments – adjudication of disputes – Building and Construction Industry Security of Payments Act 1999 s 17.
LEGISLATION CITED:
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Act 2002 (Vic)
Building and Construction Industry Payments Act 2004 (Qld) Constitution of Australia
Evidence Act 1995 (NSW)
Home Building Act 1989 (NSW)
Industrial Relations Act 1996 (NSW)
Judiciary Act of 1903 (Cth)
Migration Act 1958 (Cth)
Occupational Health and Safety Act 1983 (NSW)
Supreme Court Act 1970 (NSW)
Trade Practices Act 1974 (Cth)
CATEGORY:
Principal judgment
CASES CITED:
Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510
Adamson v New South Wales Rugby League Ltd [1991] FCA 425 ; (1991) 31 FCR 242
Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564
Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Attorney General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Australian National University v Burns (1982) 43 ALR 25
Banks v Transport Regulation Board (Vic) [1968] HCA 23 ; (1968) 119 CLR 222
Baxter v New South Wales Clickers’ Association [1909] HCA 90 ; (1909) 10 CLR 114
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238 ; (2006) 67 NSWLR 9
Bread Manufacturers of New South Wales v Evans (1980) 180 CLR 404
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909
Brodyn Pty Ltd v Davenport [2004] NSWSC 254
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421
Brown v Rezitis [1970] HCA 56 ; [1970] HCA 56 ; (1970) 127 CLR 157
Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Burns v Australian National University [1982] FCA 59 ; (1982) 40 ALR 707
Campbelltown City Council v Vegan [2006] NSWCA 284 ; (2006) 67 NSWLR 372
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
City of Yonkers v United States, [1944] USSC 8 ; 320 US 685 (1943)
Clancy v Butchers’ Shop Employees Union [1904] HCA 9 ; (1904) 1 CLR 181
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 ; (2008) 237 CLR 146
Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229
Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd [2005] NSWCA 228 ; (2005) 63 NSWLR 385
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265
Director of New South Wales State Lotteries Office v Leonard (CA 285 of 1989, 18 October 1989, unreported; BC8901571)
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 ; [2009] NSWCA 69 ; (2009) 74 NSWLR 190
Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182
Ex parte Toohey’s Limited; Re Butler (1934) 34 SR (NSW) 277 ; (1934) 51 WN (NSW) 101
FAI Insurances Ltd v Winneke [1982] HCA 26 ; (1982) 151 CLR 342
Farquharson v Morgan [1894] 1 QB 552
Fish v Solution 6 Holdings Limited [2006] HCA 22 ; (2006) 225 CLR 180
Forbes v New South Wales Trotting Club Ltd [1979] HCA 27 ; (1979) 143 CLR 242
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45
Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43 ; (2008) 236 CLR 120
GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426
Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 ; (2006) 22 BCL 285
Hot Holdings Pty Ltd v Creasy [1996] HCA 44 ; (1996) 185 CLR 149
John Holland Pty Ltd v Roads and Traffic Authority of New South Wales (2007) 23 BCL
Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Kirk v Industrial Court of New South Wales [2010] HCA 1 ; (2010) 239 CLR 531
Laing O’Rourke Australia Construction v H&M Engineering and Construction [2010] NSWSC 818
Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400
Manning v Thompson [1976] 2 NSWLR 380 (first instance); [1977] 2 NSWLR 249 (Court of Appeal); [1979] 1 NSWLR 384 (Privy Council)
Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 1) [2004] NSWSC 826 , (2004) 50 ACSR 554 ; (2004) 23 ACLC 84
Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) [2004] NSWSC 829 ; (2004) 50 ACSR 554 ; (2004) 23 ACLC 215
McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470
Minahan v Baldock [1951] HCA 27 ; (1951) 84 CLR 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; [1986] HCA 40 ; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 ; (2010) 84 ALJR 369
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 78 ALJR 992
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 ; (2010) 84 ALJR 369
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; [2001] HCA 30 ; (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20
Minister for Local Government v South Sydney Council [2002] NSWCA 288 ; (2002) 55 NSWLR 381
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Musico v Davenport [2003] NSWSC 977
NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35 ; (2003) 216 CLR 277
O’Reilly v Mackman [1983] UKHL 1 ; [1983] 2 AC 237
Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7 ; (1938) 59 CLR 369
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Port Arthur Shipbuilding Co v Arthurs [1969] SCR 85
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Queen v Ross-Jones [1984] HCA 82 ; (1984) 156 CLR 185
R v Connell; Ex parte Hetton Bellbird Collieries Limited [1944] HCA 42 ; (1944) 69 CLR 407
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864
R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598
R v National Joint Council for the Crafts of Dental Technicians (Disputes Committee); Ex parte Neate [1953] 1 QB 704
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] EWCA Civ 1 ; [1952] 1 KB 338
R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1986] EWCA Civ 8 ; [1987] QB 815
R v Wilson; Ex parte Robinson [1982] Qd R 642
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 77 ALJR 1165
Re Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76 ; (2001) 85 ALR 504
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Rex v Titchmarsh (1914) 22 DLR 272
Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40
RJ Neller Building P/L v Ainsworth [2008] QCA 397
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294
Salemi v Mackeller (No 2) [1977] HCA 26 ; (1977) 137 CLR 396
Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200 ; (2004) 60 NSWLR 558
State of Victoria v The Master Builders’ Association of Victoria [1995] VicRp 47 ; [1995] 2 VR 121
Sydney Ferries Corp v Morton [2010] NSWCA 156
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; [2006] HCA 63 ; (2006) 228 CLR 152
Tasker v Fullwood [1978] 1 NSWLR 20
Testro Bros Pty Ltd v Tait [1963] HCA 29 ; (1963) 109 CLR 353
The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42 ; (1944) 69 CLR 407
The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54 ; (1994) 181 CLR 404
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55
United States v L.A. Tucker Truck Lines, [1952] USSC 94 ; 344 US 33 (1952)
Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422 ; [2004] NSWCA 422 ; (2004) 61 NSWLR 707
Yim v Industrial Relations Commission of NSW [2007] NSWCA 77
Yirrell v Yirrell [1939] HCA 33 ; (1939) 62 CLR 287
TEXTS CITED:
M Aronson, ‘Jurisdictional Error Without Tears’ in M Groves and H P Lee (ed) Australian Administrative Law (2007) Cambridge University Press M Aronson,
‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co P Craig, Administrative Law, 6th ed (2008) Sweet & Maxwell S A De Smith, Judicial Review of Administrative Law, 3rd ed (1973) Stevens and Sons Limited A M Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4 D M Gordon, ‘Relation of Facts to Jurisdiction’ (1929) 45 Law Quarterly Review 459 D M Gordon, ‘Observation of Law as a Condition of Jurisdiction’ (1931) 47 Law Quarterly Review 386
M Groves and H P Lee (ed) Australian Administrative Law (2007) Cambridge University Press
J J Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 77 W Wade and C Forsyth, Administrative Law, 10th ed (2009) Oxford University Press
DECISION:
Question 1: Whether the determination of the Second Defendant (the Adjudicator) on 18 March 2010 that he could hear and determine the first defendant’s adjudication application pursuant to the Building and Construction Industry Security of Payment Act (the Act) should be set aside or quashed for jurisdictional error in circumstances where the adjudicator incorrectly concluded (on the facts found by him and on the facts subsequently found by the Court) that the notice required by Section 17(2)(a) of the Act had been served on the Plaintiff in the time required by the Act.
Answer: The Supreme Court, in exercise of its supervisory jurisdiction:
(a) has power to determine that –
(i) an adjudication application has not been made in compliance with s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 ;
(ii) the determination of the adjudicator, made in the absence of a valid adjudication application, was invalid, and
(iii) there was non-compliance in the present case;
(b) has power to grant relief in the nature of certiorari and set the determination aside.
Question 2: Whether in light of the decision of the High Court Kirk v Industrial Relations Commission [2010] HCA 1 the decision in Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 should not be followed or was incorrectly decided so far as it held that:
a. the Supreme Court of New South Wales was not required to consider and determine the existence of jurisdictional error by an adjudicator in reaching a determination under the Act;
b. an order in the nature of certiorari was not available to quash or set aside a decision of an adjudicator under the Act;
c. the Act expressly or impliedly limited the Supreme Court of New South Wales’ power to consider and quash a determination for jurisdictional error by an adjudicator in reaching a determination under the Act.
Answer: To the extent that Brodyn Pty Ltd v Davenport held, in relation to an adjudication application which was not in compliance with s 17(2)(a) of the Act, the matters set out in the question at a, b and c, it was in error.
Question 3: Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator’s determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari.
Answer: The Act contains no such limitation. Order that, as between Chase and Hamo the costs in this Court should be Chase’s costs in the proceedings, but otherwise there should be no order as to costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 2010/76539
SC 2010/76539
SPIGELMAN CJ
BASTEN JA
McDOUGALL J
24 September 2010
CHASE OYSTER BAR PTY LIMITED v HAMO INDUSTRIES PTY LTD
Headnote
The plaintiff contracted with the first defendant for the first defendant to carry out fitout work for the plaintiff. On 31 December 2009, the first defendant served on the plaintiff a payment claim. The due date for payment of the claimed amount was 13 January 2010. The plaintiff did not provide a payment schedule in response to the payment claim. The plaintiff became liable, pursuant to s 14(4) of the Building and Construction Industry Security of Payment Act 1999 (‘the Act’), to pay the claimed amount to the first defendant by the due date, but did not do so. The first defendant made an adjudication application.
Section 17 of the Act relevantly provides:
(1) A claimant may apply for adjudication of a payment claim (an “adjudication application”) if:
...
(b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.
(2) An adjudication application to which subsection (1) (b) applies cannot be made unless:
(a) the claimant has notified the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant’s intention to apply for adjudication of the payment claim, and
(b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant’s notice.
The first defendant did not give notice until 11 February 2010: outside the 20 business day period for which s 17(2)(a) provides, but nonetheless made an adjudication application. The second defendant, the adjudicator, was appointed. The adjudicator made a determination that the first defendant was entitled to payment of the claimed amount, together with interest. Although there was no payment schedule, the adjudicator nonetheless considered whether the first defendant’s notice pursuant to s 17(2)(a) had been given within the time required, and concluded that it had. The plaintiff raised before the trial judge that compliance with s 17(2)(a) of the Act was essential if the adjudicator were to have jurisdiction, and that the adjudicator’s finding amounted to jurisdictional error.
By order made on 23 April 2010, three questions were removed into this Court:
1. Whether the determination of the Second Defendant (the Adjudicator) on 16 March 2010 that he could hear and determine the first defendant’s adjudication application pursuant to the Building and Construction Industry Security of Payment Act (the Act) should be set aside or quashed for jurisdictional error in circumstances where the adjudicator incorrectly concluded (on the facts found by him and on the facts subsequently found by the Court) that the notice required by s 17(2)(a) of the Act had been served on the Plaintiff in the time required by the Act.
2. Whether in light of the decision of the High Court in Kirk v Industrial Relations Commission [2010] HCA 1 the decision in Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 should not be followed or was incorrectly decided so far as it held that:
(a) the Supreme Court of New South Wales was not required to consider and determine the existence of jurisdictional error by an adjudicator in reaching a determination under the Act;
(b) an order in the nature of certiorari was not available to quash or set aside a decision of an adjudicator under the Act;
(c) the Act expressly or impliedly limited the Supreme Court of New South Wales’s power to consider and quash a determination for jurisdictional error by an adjudicator in reaching a determination under the Act.
3. Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator’s determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari.
The Court held:
In relation to Question 1:
1 Determinations by adjudicators are in principle amenable to orders in the nature of certiorari for jurisdictional error.
Musico v Davenport [2003] NSWSC 977 ; Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 ; Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426 ; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 ; (2010) 84 ALJR 369 ; Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 considered.
2
The Supreme Court, in exercise of its supervisory jurisdiction:
(a) has power to determine that –
(i) an adjudication application has not been made in compliance with s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 ;
(ii) the determination of the adjudicator, made in the absence of a valid adjudication application, was invalid, and
(iii) there was non-compliance in the present case;
(b) has power to grant relief in the nature of certiorari and set the determination aside: per Spigelman CJ at [2]; Basten JA at [108]; and McDougall J at [267].
Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 ; NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35 ; 216 CLR 277 ; Musico v Davenport [2003] NSWSC 977 ; Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426 considered.
In relation to Question 2:
3 To the extent that Brodyn Pty Ltd v Davenport held, in relation to an adjudication application which was not in compliance with s 17(2)(a) of the Act, the matters set out in the question at (a), (b) and (c), it was in error: per Spigelman CJ at [56]; Basten JA at [108]; and McDougall J at [287].
Kirk v Industrial Relations Commission [2010] HCA 1 followed.
Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 considered.
In relation to Question 3:
4 The Act contains no such limitation: per Spigelman CJ at [60]; Basten JA at [108]; and McDougall J at [287].
Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 considered.
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; 211 CLR 476 ; Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 ; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; 209 CLR 597 referred to.
5 In any event, Kirk has determined that it is not permissible for a State legislature to enact a privative clause which prevents the exercise by the Supreme Court of its supervisory jurisdiction with respect to jurisdictional error: per Spigelman CJ at [58]; and McDougall J at [160].
Kirk v Industrial Relations Commission [2010] HCA 1 followed.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 2010/76539
SC 2010/76539
SPIGELMAN CJ
BASTEN JA
McDOUGALL J
24 September 2010
CHASE OYSTER BAR PTY LIMITED v HAMO INDUSTRIES PTY LTD
Judgment
1 SPIGELMAN CJ : I have had the benefit of reading the judgments of Justices Basten and McDougall in draft. Justice McDougall sets out the issues, facts and relevant statutory provisions. I gratefully adopt his Honour’s judgment in these respects.
Question 1
2 I agree with the answer to Question 1 proposed by Basten JA. Subject to the following additional observations, I agree with his Honour’s analysis under the subheadings: “nature of adjudicator’s function” and “duty to act judicially”.
3 The supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 can be invoked with respect to the exercise of statutory powers and the conduct of statutory procedures, whether or not the person to whom any orders equivalent to the prerogative writs are to be directed is a public officer. The position is, if anything, more clear when, as here, that person is appointed by an “authorised nominating authority” (s 17 of the Building and Construction Industry Security of Payment Act 1999 (“the Act”)), which is itself appointed as such by a Minister of the Crown (s 28).
4 The relevant provisions of the Act are set out by McDougall J. The Act creates a statutory right to progress payments (ss 8 and 9) which cannot be modified by a contract (s 34). Part 3 of the Act sets out a procedure for recovering such payments that, save for the necessity that a builder initiate the procedure by making a claim (s 13), makes express statutory provision for each step in the dispute resolution process. This extends to provision for an “adjudicator’s determination” (s 22) which is required to be paid (s 23), and the issuance of an adjudication certificate by an authorised nominating authority (s 24), which certificate may be filed in court as a judgment for a debt (s 25).
5 The process of adjudication is not in any sense a consensual arbitration of the character which has often been held not to be subject to the Court’s supervisory jurisdiction. Rather, it is a public, relevantly a statutory, dispute resolution process, and as a consequence is subject to the supervisory jurisdiction. (See, eg, R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864 at 882.)
6 A distinction between a private arbitration and a statutory arbitration has often been drawn. (See, eg, R v National Joint Council for Dental Technicians; Ex parte Neate [1953] 1 QB 704 at 707-708, 709; Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 978; Port Arthur Shipbuilding Co v Arthurs [1969] SCR 85 ; R v Wilson; Ex parte Robinson [1982] Qd R 642.)
7 As Malcolm CJ said, when rejecting the contention that the particular statutory body which was a party to proceedings should be treated as if it were a private insurer or trustee:
“ ... [A]ny statutory authority on which Parliament has conferred statutory powers and duties, which when exercised may lead to the detriment of a person who may have to submit to its jurisdiction, is subject to supervision by the courts by way of the prerogative writs ...” ( Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen [1999] WASCA 47 ; (1999) 21 WAR 158 at [127] .)
8 This line of authority has been applied to the scheme created by the Act in reasoning which, subject to one observation, I find convincing. (See Musico v Davenport [2003] NSWSC 977 at [28] - [32]; Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 at [23] - [24]; Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 ; (2006) 22 BCL 285 at [44]; Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426 at [54] - [65], [79]-[81].
9 The matter on which I have a reservation arises from references in this case law to the concept of a “duty to act judicially”, derived from R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 at 205. This formulation has long since been superseded by the development of administrative law over the course of the last half century. This is acknowledged in Musico at [30] and Grocon at [44]. However the terminology is still deployed in Multiplex at [14] and Holmwood at [44].
10 The critical issue is whether the relevant decision-maker is exercising public power, relevantly, a statutory power. There is no longer a requirement that there be an identifiable, additional element that the relevant decision-maker has a duty to act judicially before that decision-maker is amenable to the prerogative writs. I do not share the doubt expressed by the learned authors Mark Aronson, Bruce Dyer and Matthew Groves Judicial Review of Administrative Action , 4 th ed (2009) Lawbook Co at [12.120] as to whether the superadded duty has been authoritatively rejected in Australia.
11 In the context of the obligation to accord procedural fairness, the idea that there was such an additional element was decisively rejected in Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40 at 75-80. As Sir William Wade and Christopher Forsyth say in Administrative Law, 10 th ed (2009) Oxford University Press at 517, the formulation in Electricity Commissioners should be understood to state that the supervisory jurisdiction can be exercised:
“Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and accordingly having the duty to act judicially ...” (Italicised word added.)
12 Ridge v Baldwin was quickly accepted by the High Court as providing a new basis for further development of Australian administrative law. (See, eg, Banks v Transport Regulation Board (Vic) [1968] HCA 23 ; (1968) 119 CLR 222 at 233.) Thereafter references to a “duty to act judicially”, in the sense of a superadded duty, are not apparent in High Court judgments. The rejection of any such duty is manifest in two streams of authority.
13 First, is the affirmation on numerous occasions in High Court judgments of the scope of Australian administrative law stated by Brennan J in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.”
14 There is no scope in this formulation for a superadded duty. (For subsequent acceptance of this formulation see, eg, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272; Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [195] ; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at [43] ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [73] ; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 ; (2010) 84 ALJR 369 at [19] , [116].)
15 Secondly, there are many judgments which have rejected the relevance of characterising decision-makers as “executive” on the one hand and “judicial” or “quasi-judicial” on the other hand. (See, eg, Salemi v Mackeller (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 at 419; Bread Manufacturers of New South Wales v Evans (1980) 180 CLR 404 at 415-416; FAI Insurances Ltd v Winneke [1982] HCA 26 ; (1982) 151 CLR 342 at 409-410; Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 583-584, 616-617; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 64; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; [1990] HCA 33 ; (1990) 170 CLR 321 at 365-366; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 158-159; Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [112] - [113].)
16 Perhaps the clearest indication of the change is the High Court’s overruling of its earlier decision in Testro Bros Pty Ltd v Tait [1963] HCA 29 ; (1963) 109 CLR 353. The majority judgment in that case proceeded on the basis of a superadded duty to act judicially (per McTiernan, Taylor and Owen JJ at 362-363). The dissenting judgment of Menzies J employed the terminology of “duty to act judicially”, but his Honour’s reasoning is consistent with the view that this “duty” was not additional, but was the consequence of the exercise of the statutory powers in issue (at 372-373, 375-376). The other dissentient was Kitto J, who alone referred to Ridge v Baldwin , which had been handed down between argument and judgment in Testro v Tait. His Honour treated the issue of whether the duty to act judicially was a superadded duty as open (at 369-370.). The High Court has clearly overruled Testro v Tait. (See Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 599-600; Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564 at 576-527.)
17 As the joint judgment put it in Ainsworth at 576:
“ ... [W]hat is decisive in the nature of the power, not the character of the proceeding which attends its exercise ... [S]o far as the decision in [ Testro v Tait ] was based on the character of the proceeding, it is inconsistent with the law as it has developed ...”
18 It is no accident that when the joint judgment in Hot Holdings v Creasy quotes from Electricity Commissioners supra at 158 it refers only to the words “to determine questions affecting the rights of subjects” and omits the words “and having a duty to act judicially”. Their Honours go on to state, in the same terms (at 159):
“[F]or certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights.”
19 There is no additional element required. As Basten JA has recently said, references to a “duty to act judicially” reflect the “language of an earlier age”. ( Sydney Ferries Corp v Morton [2010] NSWCA 156 at [79] .) With respect to the line of authority to the effect that the supervisory jurisdiction will not be exercised in the case of committal proceedings, to which Aronson et al refer supra at [12.20], that authority should be understood as based on the policy of preventing fragmentation of the criminal justice process.
Question 2: The Authority of Brodyn
20 As the terms of Question 2 posed for the consideration of this Court make clear, at the heart of these proceedings is the effect upon the reasoning and judgment of this Court in Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 of the subsequent High Court judgment in Kirk v Industrial Court of New South Wales [2010] HCA 1 ; (2010) 239 CLR 531. The relevant passages of Brodyn have been set out by McDougall J, but it is appropriate to repeat the most pertinent references.
21 In Brodyn, Hodgson JA, with whom Mason P and Giles JA agreed, identified at [53] a non-exhaustive list of “basic and essential requirements” for a valid adjudicative determination, within the meaning of the Act. His Honour went on to refer to some “more detailed requirements”, including, relevantly, “s 17 as to the time when an adjudication application can be made and as to its contents” [54]. Section 17 is the section which is in issue in the present proceedings.
22 His Honour went on to say:
“[54] ... 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.”
23 His Honour concluded:
“[55] ... [T]he 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] HCA 28 ; (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)...”
24 There are three aspects of this reasoning which are of significance for present purposes.
25 First, insofar as his Honour referred to the specific requirements of s 17, relevantly for present purposes s 17(2)(a), his remarks were obiter. The section did not arise in that case.
26 Secondly, his Honour’s statement that the Parliament “did not intend that exact compliance with all the more detailed requirements was essential” (emphasis added) may not mean that none of the detailed requirements are “essential”. It may leave open the possibility that some of these “detailed requirements” could be found to be “essential”. His Honour made it clear that he was not purporting to set out all of the “essential requirements” by using the word “include”, before identifying the list at [53], and by stating expressly that that list “may not be exhaustive” at [55].
27 The third consideration is of particular significance. The impact of the judgment in Kirk on his Honour’s reasons arises from his rejection at [54] of the applicability of the distinction between “jurisdictional” and “non-jurisdictional” error, on the basis that it “cast the net too widely”. His Honour went on to apply a test as to what statutory requirements constituted “an essential pre-condition”. That statement could be understood as the equivalent of “jurisdictional error”, but it appears from the passage quoted at [22] above, that that may not be what his Honour had in mind. The concept of “an essential precondition” may have been intended to be encompassed within, but narrower than, the scope of “jurisdictional error”.
28 His Honour may have been reflecting the long history of criticism of the concept of “jurisdictional error”. Perhaps the most sustained attack on the distinction between jurisdictional and non-jurisdictional error was that of D M Gordon, commencing in (1929) 45 Law Quarterly Review 459 and continuing in (1931) 47 Law Quarterly Review 386. Furthermore, Justice Felix Frankfurter, who once described the idea of jurisdiction as “a verbal coat of too many colours” ( United States v L.A. Tucker Truck Lines [1952] USSC 94 ; 344 US 33 at 39 (1952)), also referred to the “morass” in which one can be led by “loose talk about jurisdiction”, concluding that “‘jurisdiction’ competes with ‘right’ as one of the most deceptive of legal pitfalls” ( City of Yonkers v United States [1944] USSC 8 ; 320 US 685 at 695 (1943)). Lord Cooke of Thorndon expressed similar criticisms of the distinction, commencing with his 1954 unpublished PhD Thesis at Cambridge University (see M Aronson “The Resurgence of Jurisdictional Facts” (2001) 12 Public Law Review 17 at 19), which criticism was sustained by him in the New Zealand Court of Appeal and the House of Lords. Justice Kirby in the High Court frequently made similar observations. (See, eg, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [211] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76 ; (2001) 185 ALR 504 at [22] ; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [173] ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 77 ALJR 1165 at [120] .) Justices Gummow, Hayne and Heydon once characterised “jurisdiction” as a “slippery term”. ( Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 ; (2004) 219 CLR 365 at [106] .)
29 The centrality of the distinction between jurisdictional and non-jurisdictional error had been identified by the High Court in Craig v State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163. The significance of Kirk is that it has given this distinction a constitutional dimension in State law, to the same general effect as had earlier been established for Commonwealth law. That has placed this distinction at the centre of Australian administrative law jurisprudence, in a manner which is not consistent with the reasoning in Brodyn, on one view of that reasoning.
30 The distinction between jurisdictional and non-jurisdictional error is necessitated in Australian administrative law by the separation of powers established by Chapter III of the Constitution , as interpreted by the High Court. The constitutional basis of the distinction was confirmed, with respect to courts exercising federal jurisdiction, in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [98] . The judgment in Kirk identified the same distinction in State jurisdiction, arising from the fact that “the Supreme Court of any State” in s 73(ii) of the Commonwealth Constitution is a “constitutional expression”. ( Kirk at [96]. See generally J J Spigelman “The Centrality of Jurisdictional Error” (2010) 21 Public Law Review 77.)
31 In Kirk, after identifying the constitutional foundation of the supervisory jurisdiction of the Supreme Courts of the states, the High Court concluded:
“[100] ... [T]he observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context.”
32 This new dimension of the distinction between jurisdictional and non-jurisdictional error undermines the proposition in Brodyn, if that is the correct interpretation of the passage set out at [22] above, which suggests that, as a matter of statutory interpretation, a provision can constitute “jurisdictional error” but not constitute “an essential pre-condition”.
Question 2: Identifying Jurisdictional Error
33 There is no single test or theory or logical process by which the distinction between jurisdictional and non-jurisdictional error can be determined. (See M Aronson et al Judicial Review of Administrative Action, 4 th ed (2009) Lawbook Co esp at [1.80]-[1.90], [4.185]-[4.200]. See also M Aronson “Jurisdictional Error Without Tears ” in M Groves and H P Lee (ed) Australian Administrative Law (2007) Cambridge University Press; P Craig Administrative Law, 6 th ed (2008) Sweet & Maxwell, Ch 14.) Nevertheless, as Gleeson CJ has pointed out: “Twilight does not invalidate the distinction between night and day.” (A M Gleeson “Judicial Legitimacy” (2000) 20 Australian Bar Review 4 at 11. See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [163] per Hayne J.)
34 The submissions for the applicant in this Court were based on the proposition that a valid notice under s 17(2) was a jurisdictional fact. With respect to this form of jurisdictional error, the test has been expressed in a number of different, albeit equivalent, ways. The following formulation has found favour in recent High Court authority: the “criterion, satisfaction of which enlivens the power of the decision-maker”. ( City of Enfield supra at [28]; Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43 ; (2008) 236 CLR 120 at [43] .)
35 However, the element presently under consideration – “cannot be made unless” – does not, in my opinion, invoke a jurisdictional fact. Like the formulation “must not be granted” considered in Gedeon supra at [46], it “conveys the notion of a contraction in the content of what would be the power otherwise conferred”, relevantly in this case, the right to make an application under s 17(1). Similarly, an “integer or element of the right” under s 17(1) “is its exercise by application made within the time specified”. ( David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 at 277.)
36 The issue to be determined is whether the adjudicator had jurisdiction to determine an “application” which had been made without compliance with the mandatory (in a negative sense) terminology of s 17(2). The issue is not, contrary to some of the submissions made, whether the adjudicator had jurisdiction to determine that s 17(2)(a) had been complied with. That section is not addressed to the adjudicator and is not a matter which he is directed to “determine” within s 22(1) of the Act. It may be that it is a matter which he must “consider” as one of the “provisions of the Act” within s 22(2)(a). However, that section confers no power to determine the issue.
37 As Hodgson JA recognised in Brodyn, in the passage set out at [23] above, the relevant question is that which was propounded in the joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355. Section 17(2) of the Act is a procedural requirement of the kind to which the High Court referred in Project Blue Sky in the following way:
“[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[92] Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory.”
38 The joint judgment went on to approve the judgment in Tasker v Fullwood [1978] 1 NSWLR 20 , particularly with respect to the doubt expressed by this Court about the utility of the distinction between “directory” and “mandatory” requirements. The High Court concluded:
“[93] ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’. ( Tasker v Fullwood at 24.)”
39 The language of essentiality, extending as it does to words like “mandatory” and “jurisdictional” is, as has frequently been pointed out, a convenient way of expressing a conclusion. This is the result of a process of construction in which all of the relevant principles of the law of statutory interpretation are applied. (See, eg, Tasker v Fullwood supra at 23-24; Project Blue Sky supra at [93]; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55 at [39] ; Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32 ; (2008) 237 CLR 146 at [23] .) The joint judgment in Project Blue Sky supra at [91], quoted at [37] above, indicated that a range of factors have been identified as relevant to the process of statutory interpretation, but there is neither a “decisive rule” nor “even a ranking of relevant factors ... to give guidance”.
40 The first textual indicator that is always of significance is the mode of expression of the element directly in issue. Substantial, indeed often, but not always, determinative, weight must be given to language which is in mandatory form. See, for example:
David Grant v Westpac supra esp at 276-277, where the formulation was “may only”.
City of Enfield supra at [6], [28] and [32]-[33], where the formulation was “must not be granted”. SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 at [68] , [136], [173] and [206], where the language “must give” was described as “imperative”.
41 The element under consideration in the present case – “cannot be made unless” – has a similar mandatory import. To adapt the words of Gummow J in David Grant v Westpac at 277:
“ ... it is impossible to identify the function or utility of the words – “cannot be made” – if (they do) not mean what (they) say.”
42 The second aspect which must be taken into account, in addition to the text, is the structure of the legislative scheme. This is the context which must be taken into account in the first instance, not only after some ambiguity is identified in the directly operative words. (See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.) There are two particularly relevant considerations for present purposes. First, the point of time in the decision-making process at which the element under consideration occurs. Secondly, the treatment of time limits in the scheme as a whole.
43 With respect to the first aspect, it is particularly relevant that the element occurs at the application stage of the decision-making process. It does not involve consideration of matters which can arise during the course of the decision-making process itself. A traditional formulation of the relevant distinction is whether the relevant element is “a fact to be adjudicated upon in the course of inquiry” as distinct from an “essential preliminary to the decision-making process”. ( Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 443. See also the discussion in Timbarra supra at 65-67 and Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422 ; (2004) 61 NSWLR 707 at [46] - [49].)
44 As I pointed out in Woolworths v Pallas Newco :
“[47] The word ‘preliminary’ does not, in this context, refer to a chronological sequence of events, but to matter that is legally antecedent to the decision-making process ...
[48] The extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely that the fact is jurisdictional.”
45 There are a number of cases in which the absence of an element required to be present in the application which initiates a decision-making process has been held to be jurisdictional. (See, eg, Ex parte Toohey’s Limited; Re Butler (1934) 34 SR (NSW) 277 ; (1934) 51 WN (NSW) 101 ; Minahan v Baldock [1951] HCA 27 ; (1951) 84 CLR 1 ; Manning v Thompson [1976] 2 NSWLR 380 (first instance); [1977] 2 NSWLR 249 (Court of Appeal); [1979] 1 NSWLR 384 (Privy Council); David Grant supra at 276-277; and see the analysis in Timbarra supra at [56]-[60].)
46 The significance of this factor is reinforced by a second aspect of the legislative scheme. The legislation provides for a precise sequence of time stipulations, as follows:
A payment claim may be served “only” within the period identified in the contract or 12 months, whichever is later (s 13(4)).
The respondent to a payment claim becomes “liable to pay the claimed amount” if a payment schedule is not provided within the time required by the contract or 10 days, whichever is earlier (s 14(4).
A claimant may recover unpaid monies as a debt or make an adjudication application if the payment schedule has been provided in accordance with s 14(4)(b), and the respondent fails to pay within the time required or 10 days, whichever is earlier (s 16(1)(b)).
Where a payment schedule indicates that an amount less than that claimed is said to be owing, the claimant must make an adjudication application within 10 days (ss 17(1)(a)(i) and 17(3)(c)).
Where a respondent fails to pay any part of the scheduled amount accepted to be owing by the due date for payment, the claimant must make an adjudication application within 20 days after the due date for payment (ss 17(1)(a)(ii) and 17(3)(d)).
Where the respondent fails to provide a payment schedule and the claimant proposes to apply for an adjudication application, in accordance with s 15(2)(a)(ii), rather than to recover the amount claimed as debt, the claimant cannot make an adjudication application unless s/he provides a notice within 20 days of the due date for payment of an intention to apply and the respondent has been given an opportunity to provide a payment schedule for five days after receiving the notice (ss 17(1)(b) and 17(2)).
Any adjudication application pursuant to the notice referred to in the immediately preceding bullet point must be made within 10 days after the end of the five day period for providing a payment schedule (s 17(3)(e)).
The “authorised nominating authority” has a duty to refer an application to an adjudicator “as soon as practicable” (s 17(6)).
Where there has been a payment schedule provided, the respondent may lodge an adjudication response at any time within five days after receiving a copy of the application, or two days after receiving notice of an adjudicator’s acceptance of the application, whichever is later (s 20(1)).
An adjudicator is to determine an adjudication application “as expeditiously as possible and, in any case” within 10 days of notifying the claimant and respondent of acceptance of the application, or such further time as the claimant and the respondent agree (s 21(3)).
After the adjudicator has made a determination of the amount payable a respondent is required to pay an adjudicated amount on or before five days after the date of service of the determination (s 23(2)).
A claimant may suspend work or supply of services after two days from giving a notice of intention to do so (s 27(1)).
The right referred to in the immediately preceding bullet point expires three days after payment is made (s 27(2)).
47 This detailed series of time provisions is carefully calibrated to ensure expeditious resolution of any dispute with respect to payments in the building industry. The time limits are a critical aspect of the scheme’s purpose to ensure prompt resolution of disputes about payment. It is commercially important that each party knows precisely where they stand at any point of time. Such certainty is of considerable commercial value.
48 Subject only to those provisions which can be varied downwards by the contract and one provision which permits the parties to agree to an extension, there is no indication that Parliament intended the dates for which it provided to be flexible. This significantly reinforces the conclusion available from the mandatory language of s 17(2).
49 Mr B Hodgkinson SC, who appeared for the respondent, submitted that the essential element in s 17(2)(a) was the requirement of notice. The additional element – that such notice be made within 20 days after the due date for payment – was not, he submitted, essential.
50 But for the detailed sequence of the express provisions for time set out at [46] above, there may have been some force in Mr Hodgkinson’s submission. However, the structure of the legislative scheme, that I have set out above, strongly suggests that Parliament intended the time limits to operate precisely in accordance with their terms. Such an operation ensures that, at every stage, each party knows exactly where s/he stands on any day.
51 Mr M G Sexton SC, the New South Wales Solicitor General, who appeared for the intervening Attorney, submitted that although the 20 days period is easily ascertained, the commencement date, ie, when payment is due, is not always so clear. This is, in my opinion, of little weight in view of the express stipulation in s 11(1) that a progress payment becomes due and payable on the date specified in the contract or if none is specified, 10 days after a payment claim is made.
52 It is well established that the adverse effects of a finding that an element is jurisdictional should be considered before reaching a final conclusion. In Brodyn it was noted that the determination of a statutory entitlement to payment under the Act does not foreclose the possibility of an ultimate finding that the contractual rights were different. (See Brodyn supra at [51] and [88].) However, as McDougall J indicates, payment does shift the risk of insolvency, not an unknown phenomenon in the building industry.
53 The statute itself also creates another risk which may lead to irreversible contractual consequences. A claimant is given the option, at several stages of the process which I have set out at [46] above, to give notice of an intention to suspend the carrying out work or supplying services. (Section 15(2)(b), s 16(2)(b), s 24(1)(b).) S/he is given statutory protection in the event of such a suspension by s 27 of the Act. In Brodyn, Hodgson JA said at [51] that s 27 “could operate as a trap”, if the processes under the Act were subsequently set aside as void. Nevertheless, Hodgson JA went on to observe that the Court may be able to avoid injustice by the terms of any relief which it gives.
54 It may be arguable that s 27(1) applies so long as a bona fide notice of intention to suspend was given, whether or not, as a result of a subsequent court order, the fact or circumstance which authorises the notice to be given has been set aside. This issue was not the subject of submissions and need not be decided.
55 The possibility that s 27 may “operate as a trap” is a material consideration. However, it is not, in my opinion, sufficient to overcome the force of the text and structure of the legislative scheme to which I have referred. As Hodgson JA recognised in Brodyn, the purpose of the legislative scheme is best served by restricting the scope of intervention by the Courts. I do not believe that there will be frequent occasion for such interference – perhaps after a transitional period – once it is realised in the building industry that punctilious compliance with each specific time limit is required if a builder is to have the benefit of the scheme established by the Act.
56 I agree with the answer to Question 2 proposed by Basten JA.
Question 3
57 Question 3 posed for the consideration of the Court is expressed in a manner which contains a hypothesis in the words “so far as [the Act] expressly or impliedly limits the power of the Supreme Court ... to review ... for a jurisdictional error”. The relevant section of the Act which, hypothetically, could be said to have any such effect is s 25(4)(a)(iii) which provides that a respondent may not, in proceedings to have a judgment set aside, “challenge the adjudicator’s determination”.
58 In one sense this matter has been clarified by Kirk which determined that it is not permissible for a State legislature to enact a privative clause which prevents the exercise by the Supreme Court of its supervisory jurisdiction with respect to jurisdictional error. However, the position is quite clear even on the law before Kirk.
59 The section is not a privative provision of that character. Indeed, contrary to the submissions made in this Court, that was made clear in Brodyn supra at [41]-[42], [58]-[59], noting the reference to “not void” at [59]. Section 25(4) says nothing about the supervisory jurisdiction of the Supreme Court. It is addressed only to the proceedings to set aside a judgment debt. Furthermore, on longstanding authority, the reference to the “determination” in s 25(4)(a)(iii) would be interpreted to mean a determination not affected by jurisdictional error. (See, eg, Clancy v Butchers’ Shop Employees Union [1904] HCA 9 ; (1904) 1 CLR 181 ; Baxter v New South Wales Clickers’ Association [1909] HCA 90 ; (1909) 10 CLR 114 ; Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 at 172.)
60 I agree with the answer to Question 3 proposed by Basten JA.
Conclusion
61 Each of the questions should be answered as proposed by Basten JA. I agree with the order proposed by McDougall J.
62 BASTEN JA : The procedural, factual and statutory background to this matter have all been comprehensively set out by McDougall J and need not be repeated. As I have some difficulty in answering the questions removed into this Court in the terms in which they are formulated, I will set out my own reasons for reaching conclusions, which are in most respects in conformity with his Honour’s.
Amenability of adjudicator to relief in nature of certiorari
63 It is convenient to address first the amenability of the adjudicator’s determination to relief in the nature of certiorari. This issue depends upon the possible relevance of two considerations, namely:
(a) the nature of the function being exercised by an adjudicator, and its relationship with government power; and
(b) whether an adjudicator acts judicially.
(a) nature of adjudicator’s function
64 An adjudicator must be an individual having prescribed qualifications and must not be a party to the contract: Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Security of Payment Act” ), s 18. In relation to a particular adjudication, the adjudicator is a person appointed by an “authorised nominating authority” acting with the authority of the Minister: s 28. The act of the authorised nominating authority in nominating an adjudicator is one for which the authority may charge a fee: s 28(3). The parties to the adjudication are liable for the fee: s 28(4). The adjudicator is also entitled to a fee for which the parties to the adjudication are liable: s 29(1), (2) and (3). The adjudicator enjoys a statutory immunity from personal liability for things done or omitted to be done in exercise of his or her functions, if done in good faith: s 30(1).
65 It is clear from this statutory regime that an adjudicator is not an officer of the government, is not nominated by an officer of the government and is not paid by the government for exercising statutory functions. Nor does the government have any power to control an adjudicator, either when exercising statutory functions, or otherwise.
66 It follows that, for the adjudicator to be amenable to relief in the nature certiorari, such relief must be available on the basis only that the adjudicator is exercising a statutory function.
67 In this country, the role of private authorities carrying out statutory functions has been discussed primarily in relation to the concept of an “administrative” decision within the terms of s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). In Burns v Australian National University [1982] FCA 59 ; (1982) 40 ALR 707 , Ellicott J reviewed an employment decision made by the University, which was incorporated under statute. (His Honour’s finding that the decision was made “under an enactment” was reversed on appeal, but not so as to affect the following statement: Australian National University v Burns [1982] FCA 191 ; (1982) 43 ALR 25.) In relation to the question whether the decision was “administrative”, his Honour stated at 714:
“It is obviously unwise to attempt a comprehensive definition but, in my opinion, it is at least apt to describe all those decisions, neither judicial nor legislative in character, which Ministers, public servants, government agencies and others make in the exercise of statutory power conferred on them, whether by Act of the Parliament or by delegated legislation. In other words it at least covers the decisions made in executing or carrying into effect the laws of the Commonwealth.”
68 In NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35 ; 216 CLR 277 , the High Court was asked to determine whether judicial review was available under the ADJR Act in relation to a decision of a private corporation authorised by statute to grant or refuse approval, being a precondition to a statutory authority granting a licence to export wheat. The majority in the High Court held that the company’s “approval” was not a decision under an enactment but conduct undertaken in its private capacity. The statute gave effect to the result, but was not necessary to empower the conduct: at [54] (McHugh, Hayne and Callinan JJ). The majority, however, proceeded beyond the specific question as to the application of the ADJR Act, stating at [58]:
“Because the 1989 Act did not expressly or impliedly require or authorise AWBI to decide whether to approve the issue of a bulk-export permit, AWBI could not be compelled, by mandamus or otherwise, to decide whether to grant or not grant its approval. It was under no statutory, or other, obligation to consider that question.”
69 Thus, AWBI did not act by reference to “public” matters but was able to determine whether or not to grant approval purely on the basis of its private commercial interests: at [59].
70 The situation of an adjudicator under the Security of Payment Act is significantly different. He is or she is not entitled to pursue any personal interests and, at least in relation to the administration of the construction contract, is not permitted to have an interest in the outcome: s 18(2)(a). Rather, the adjudicator is required to determine an application having regard only to the matters specified in s 22(2). Although the adjudicator is entitled to be paid for his or her services, it may be assumed for present purposes that it would be legally erroneous for the adjudicator to take into account any such personal interests in making a determination under s 22. The right which is to be determined by the adjudicator is not a right which necessarily arises under contract; although the amount may depend upon the contract, the right to payment is a creation of statute.
71 In Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426 (“ Grocon ”), Vickery J concluded that an adjudicator operating under equivalent legislation in Victoria (the Building and Construction Industry Security of Payment Act 2002 (Vic)) was subject to judicial review and to relief by way of certiorari and declaration. In the result, his Honour found that there was neither jurisdictional error nor other error of law: at [283] and [284], with the result that certiorari was refused. However, it is clear that his Honour considered such relief would be available in an appropriate case. After referring to doubts expressed in this Court in Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; 61 NSWLR 421 at [46] , his Honour referred to authority for the proposition that any body of persons having statutory authority to determine questions affecting the rights of subjects might be characterised as exercising “governmental power”, sufficient to attract certiorari: see Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 ; R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 ; Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40 ; O’Reilly v Mackman [1983] UKHL 1 ; [1983] 2 AC 237. His Honour held at [50]:
“An adjudication determination cannot finally resolve all of the rights of the parties under the applicable construction contract; they are left to be determined by later proceedings in the event of a continuing dispute. Nevertheless, an adjudication determination does have the effect of finally determining the right of a claimant to immediate payment of its progress claim. This has a discernable or apparent legal effect upon rights, sufficient to found certiorari: Hot Holdings Pty Ltd v Creasy [1996] HCA 44 ; 185 CLR 149 at 159 per Brennan CJ, and Gaudron and Gummow JJ.”
72 I considered the effect of the determination on the legal rights of the parties a sufficient basis for finding inconsistency with the Trade Practices Act 1974 (Cth) in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238 ; 67 NSWLR 9 at [112] - [117].
73 In Grocon , Vickery J turned to consider whether the adjudicator was to be characterised as in a similar position to a privately appointed arbitrator whose awards have generally been considered immune from interference by prerogative writs: at [56], referring to R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] EWCA Civ 1 ; [1952] 1 KB 338 at 351 (Lord Denning). His Honour noted that the source of power of the privately appointed arbitrator was contractual and not statutory, noting the remarks of Lord Goddard CJ in R v National Joint Council for the Crafts of Dental Technicians (Disputes Committee); Ex parte Neate [1953] 1 QB 704 stating at 708:
“There is no instance of which I know in the books where certiorari or prohibition has gone to any arbitrator except a statutory arbitrator, and a statutory arbitrator is a person to whom by statute the parties must resort.”
74 Although unnecessary for his conclusion, Vickery J also referred to R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1986] EWCA Civ 8 ; [1987] QB 815. The Panel was an industry body lacking legal recognition. Its determinations were of undoubted commercial and public significance in the operation of the London Stock Exchange and the enforcement of the non-statutory City Code on Take-overs and Mergers. The Court of Appeal held that it was amenable to judicial review although a private body, because it was exercising “regulatory functions of government”: at [74]. Vickery J stated that Datafin had been “applied in Australia”, particularly in State of Victoria v The Master Builders’ Association of Victoria [1995] VicRp 47 ; [1995] 2 VR 121 (Tadgell , Ormiston and Eames JJ), and Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) [2004] NSWSC 829 ; 50 ACSR 554 ; 23 ACLC 215 (Shaw J).
75 Although his Honour noted that it was not necessary to rely upon the reasoning in Datafin to uphold the amenability of the adjudicator to certiorari, if it were correct that Datafin had been applied by the Full Court of the Victorian Supreme Court, this Court should follow the same approach, unless persuaded that the Victorian decision was clearly wrong. However, I do not read the Full Court decision as applying, or approving, Datafin . The Master Builders’ case involved a challenge to the conduct of the “Building Industry Taskforce”, which had sought to require builders involved in contracting with the Victorian Government to make a declaration that they had not engaged in unlawful tendering practices. The primary judge (Hempel J) had not granted relief pursuant to prerogative writs, but by way of declaration. Nevertheless, the Full Court considered whether the Taskforce was subject to judicial review. Tadgell J noted the remark of Sir John Donaldson MR in Datafin that the Panel was “without visible means of legal support”: at 137(10). By contrast he noted that the “source of power [of the Taskforce] is patent”. Although the membership of the Taskforce was not readily identified, it was established “under the auspices of” the Victorian Department of Justice (p 146) and the letter to contractors was sent by a solicitor on letterhead of the Victorian Government Solicitor (p 124). It was, in effect, an arm of government, although not established pursuant to statute. The real issue was whether the courts had powers in the nature of judicial review with respect to the exercise of prerogative powers of the government: at 147-148 (Ormiston J). It is possible Eames J could be said to have “applied” Datafin (at 163-164) but if so, it was clearly unnecessary to do so, the Taskforce being an emanation of government, exercising governmental power.
76 A second example relied upon in Grocon of the application of Datafin in Australia was the judgment of Shaw J in Masu (No 2) . The nature of the defendant (“FICS”) was more completely identified in a previous judgment namely, Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 1) [2004] NSWSC 826 , 50 ACSR 554 ; 23 ACLC 84. In considering constitutional issues relating to the operation of FICS, his Honour noted in Masu (No 1) that it was a registered corporation handling complaints within the financial services industry. It was said to have been “constituted under regulations and a policy statement” issued by the Australian Securities and Investments Commission: at [3]. Four of its directors were appointed by industry members and four by the Federal Minister for Consumer Affairs. Although Shaw J stated in Masu (No 2) that “the preponderance of Australian authority indicates that [ Datafin ] is applicable in this country” (at [5]), the decision did not depend upon any extension of general law principles to non-government bodies or any close comparison of FICS with the Take-over Panel in Datafin . To the extent that his Honour sought to rely upon the observations in Minister for Local Government v South Sydney Council [2002] NSWCA 288 ; 55 NSWLR 381 and in the Master Builders’ case, I would not accept that either decision demonstrates the applicability of Datafin in Australia.
77 In the High Court, Datafin has been discussed only in NEAT Domestic and then only by Kirby J in dissent. (It will be recalled that NEAT was a case concerned with the operation of the ADJR Act.) His Honour’s acceptance of its principles was not unqualified, noting at [115]:
“Whether or not the criterion of the exercise of ‘public power’ is sufficiently precise to be accepted as the basis for review of decisions under the common law, the observations about the nature of the power identified in cases such as Forbes and Datafin are helpful in analysing whether particular decisions are of an ‘administrative character’.”
78 In this Court, Datafin was referred to in Minister for Local Government v South Sydney City Council . The question was whether the Local Government Boundaries Commission was required to accord procedural fairness to the South Sydney City Council in respect of a proposed change of boundaries. The Boundaries Commission was established by statute and exercised statutory functions. The application of Datafin was not an issue in the proceedings. However, in the course of a discussion in relation to the source of the obligation to afford procedural fairness, Spigelman CJ explained that the doctrine was one of the common law which “attaches to the exercise of public power, subject to any statutory modification of the common law in that regard”: at [6]. His Honour noted that the common law basis for the duty was reflected in its extension to the exercise of prerogative powers and was the basis “for the extension of the principles of judicial review to private bodies which make decision of a public character”: at [7]. In that respect, his Honour referred to Forbes v New South Wales Trotting Club Ltd [1979] HCA 27 ; 143 CLR 242 and Datafin as examples of the scope of the principles to which his Honour was referring. The case provided no occasion for the consideration of whether Datafin applied in Australia, nor did his Honour express a view in that regard.
79 Datafin was also referred to by Campbell J in McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 at [81] . The reference was in passing, as his Honour was dealing with the application of procedural fairness to the exercise of a power of expulsion by a private club, a matter which, as his Honour noted, was the subject of well established authority permitting remedies for breach, not by issue of a prerogative writ, but by way of a declaration of invalidity: at [82]. McClelland provides a timely reminder that the duty to accord procedural fairness is not co-extensive with the availability of certiorari for breach. Indeed, as has been noted by Professor Aronson, Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; 204 CLR 82 was the first explicit recognition by the High Court that breach of procedural fairness constituted a form of jurisdictional error: M Aronson, “Jurisdictional error without tears”, in M Groves and HP Lee Australian Administrative Law (Camb UP, 2007) p 336.
80 In the Full Court of the Federal Court, Datafin was referred to in a case concerning the operation of an appeal panel dealing with breaches of the rules of the New South Wales Rugby League: Adamson v New South Wales Rugby League Ltd [1991] FCA 425 ; (1991) 31 FCR 242. Relief was granted by way of declaration that the rules were in restraint of trade. Gummow J noted at 291-292:
“Therefore, there is no need to decide a subsidiary issue which emerged at the hearing of this appeal, namely the extent to which, if at all, the proceedings of the Appeals Board would be amenable to the remedies of public law. The Board appears to be a body exclusively concerned with private rights and interests which do not have any statutory or public law source. The authorities as to the scope for public law remedies in such cases are divided and, at least in Australia, indecisive; see Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487 at 511; Shepherd v South Australian Amateur Football League Inc (1987) 44 SASR 579 ; Dixon v Australian Society of Accountants (1989) 95 FLR 231 ; R v Panel on Take-overs and Mergers; Ex parte Datafin Plc ....”
81 The result of this analysis suggests that there is an absence of authority in Australia addressing the question of whether or not Datafin applies. The authorities relied upon in Grocon do not support the proposition that it is applicable and, to the extent that it extends public law remedies to private bodies which do not exercise functions conferred by government, whether under statute or otherwise, it is not necessary to rule on its application in the present case. Suffice it to say that there is no authority in the High Court which supports its application and statements of general principle in that Court might be thought to adopt a more limited scope for the operation of public law remedies.
(b) duty to act judicially
82 There is a further question as to whether it is necessary to determine that the adjudicator had a duty to “act judicially”, in order to be amenable to public law remedies of certiorari and prohibition. The criterion of a duty to act judicially is drawn from the judgment of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 205. Atkin LJ described the writs as operating wherever “any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority”. With respect to the requirement to “duty to act judicially”, Aronson, Dyer and Groves state that Australian cases “have not yet dispensed with” that element: Judicial Review of Administrative Action (4 th ed, 2009) at [12.120]. However, that may be because it has been overtaken by other developments, which have rendered it otiose.
83 There has been a significant weakening of the nature of the affectation of legal rights since Lord Atkin wrote. A recommendation of an administrative body which a final decision-maker is required to take into account will have the requisite legal effect upon rights to attract certiorari: Hot Holdings Pty Ltd v Creasy [1996] HCA 44 ; 185 CLR 149 at 165 (Brennan CJ, Gaudron and Gummow JJ). Further, the element could have arisen in numerous cases in which certiorari has been sought in relation to the decisions of Ministers, administrative decision-makers, local councils and similar bodies where it has not only not been raised, but where the occasion has passed without comment. Finally, there is a question as to what such a duty would now refer to, given the different constitutional environment of administrative law in Australia and having regard to legal developments in the last 85 years. Such language has been used on occasion to identify circumstances attracting the duty to accord procedural fairness.
84 Although it may be unnecessary to determine in this case whether there is any requirement to identify a duty to act judicially, and what may be encompassed by the outer limits of such a requirement, I agree with the analysis of Spigelman CJ at [9]-[16] above. In any event, there seems little doubt that the adjudicator, in exercising a statutory function of determining the amount of a progress payment and the date on which such amount becomes payable, would fall comfortably within the scope of such a requirement, so as to engage, for example, an obligation to give reasons (were there no statutory requirement to that effect – see Security of Payment Act, s 22(3)(b)): see Campbelltown City Council v Vegan [2006] NSWCA 284 ; 67 NSWLR 372 at [20] (Handley JA) and at [104]-[109].
(c) operation of privative clause
85 The general amenability of a body to judicial review may be limited by statute. That raises a question as to whether there is a privative clause which restricts judicial review in the present circumstances. As noted by McDougall J, the only provision which seems to be a candidate is s 25(4), set out at [195] below. There are other provisions in the Act which limit the right of a respondent to resist judgment resulting from the service of a payment claim: see ss 15(4) and 16(4). (The operation of s 15(4) was considered by this Court in Bitannia Pty Ltd v Parkline Constructions Pty Ltd at [78]-[82].) Section 25(4), however, has an additional limb, not shared by those provisions, namely the denial of any entitlement “to challenge the adjudicator’s determination”: s 25(4)(a)(iii).
86 A number of features of s 25(4) should be noted. First, its language falls well short of common forms of privative clause, such as s 474 of the Migration Act 1958 (Cth) considered in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; 211 CLR 476 , set out at [48]. Secondly, it does not say anything directly about proceedings for judicial review of the adjudicator’s determination. It is limited to proceedings brought to set aside a judgment. There will be steps to be taken before judgment is entered of which the respondent will have notice and thus an opportunity to challenge the determination before judgment is entered. What must be filed in a court of competent jurisdiction in order to obtain and enforce a judgment for a debt, is an “adjudication certificate”: s 25(1). An adjudication certificate can only be obtained where the respondent has failed to pay the amount as adjudicated, within the period provided: s 24(1). The obligation to pay runs from a date occurring at least five business days after the date on which the determination is served on the respondent: s 23. The fact that the statute does not preclude a respondent seeking, by other proceedings, to prevent the registration of judgment before it occurs indicates that there is no clear intention to prevent review of the adjudicator’s determination.
87 Thirdly, that which is the subject of the prohibited challenge, in proceedings to have the judgment set aside, is limited to “the adjudicator’s determination”. That is not a defined term, but its meaning is readily gleaned from s 22. Thus, s 22(3) provides that the adjudicator’s determination must be in writing and must include “the reasons for the determination”. Section 22(1) specifies what the adjudicator “is to determine”: the matters identified are the amount of the progress payment (if any), the date on which the amount became or becomes payable and the rate of interest payable on such an amount. It is at least arguable that the constraint imposed by s 25(4) is limited to a challenge to those matters. (The scope of s 22(1) is also relevant to the question whether the adjudicator is empowered to determine the existence of necessary preconditions to the adjudication; if the adjudicator’s power extends so far, it is arguable that, at least by implication, the “adjudicator’s determination” may include such matters and thus those matters would fall within the area unavailable for challenge.)
88 Fourthly, there is the scope of the term “challenge”. Given the objects of the Act, as explained by McDougall J, it should not be given any narrow compass. Nevertheless, its primary purpose would seem to be a challenge to the correctness of the adjudicator’s determination, in terms of the assessment made of the factors set out in s 22(1). It is not language which is apt to protect the legal effect of a determination where the power to adjudicate was not properly engaged.
89 Fifthly, any form of privative clause is likely to give rise to the need to reconcile its effect with the mandatory language of other provisions of the statute constraining the power in question, or the circumstances in which the power is engaged. The reconciliation of such apparently conflicting provisions will involve an exercise in statutory construction: see Plaintiff S157 at [22] (Gleeson CJ), and [58]-[60] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). That process of reconciliation must take account of the objects of the statute, which are undoubtedly to provide a simple and speedy process to ensure progress payments are made in a timely fashion, but also the fact that the wider the scope given to a privative clause, the greater the limitation on the supervisory jurisdiction of this Court. Generally speaking, a constraint on the Court’s jurisdiction will require express language or at least a clear and unambiguous implication: see The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54 ; 181 CLR 404 and Kirk v Industrial Court of New South Wales [2010] HCA 1 ; 239 CLR 531 .
90 In Brodyn , Hodgson JA found in the language and purpose of the statute an intention to exclude the availability of this Court’s supervisory jurisdiction, by way of relief in the nature of prerogative writs, not only in relation to error of law on the face of the record, but more generally in relation to jurisdictional error: at [54] and [58]. With respect to the adjudicator’s determination, there is no sufficient basis to warrant exclusion of relief in the nature of certiorari for jurisdictional error.
91 Further, the matters set out above give no express indication or any clear implication for excluding judicial review for error on the face of the record. (Given the terms of s 69 of the Supreme Court Act and s 22(3) of the Security of Payment Act , the record will include both the determination and the reasons of the adjudicator.)
92 Before leaving this question, reference should be made to a factor which was treated in Brodyn as weighty support for a different view. A contra-inference to the availability of judicial review is to be drawn, it was contended, from the availability of a power in a claimant to suspend work under the construction contract without liability for any loss or damage suffered by the respondent: s 27(1) and (3). In relation to an adjudicated amount, the right to serve notice of intention to suspend work is found in s 24(1)(b). According to the argument, if the claimant is at risk of judicial review setting aside the adjudication determination as a nullity, the right to suspend work will be uncertain and reliance upon it hazardous for the claimant.
93 There may, as McDougall J suggests, be circumstances in which the uncertainty may be quite limited and the adverse consequences may well not flow. Nevertheless, the argument is not without force. It relies, however, upon the assumption that an adjudication affected by jurisdictional error is a nullity which can have no effect. The assumption calls for investigation. Thus, in Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 413, Finkelstein J stated:
“There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.”
94 That passage was cited with approval by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; 209 CLR 597. His Honour made a similar point in his own language at [11]:
“To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.”
95 It is far from clear that a claimant who has not been paid the adjudicated amount and who has served a notice of intention to suspend work, and then takes that step, will be liable for any loss or damage from which the claimant would otherwise be protected by s 27(3), in circumstances where the adjudicator’s determination is later set aside by the Supreme Court in its supervisory jurisdiction. Once the assumption is rendered doubtful, the inference to be drawn from it fails to carry sufficient weight to demonstrate an intention to remove this Court’s supervisory jurisdiction.
Essentiality of condition
96 For the reasons given by the Chief Justice at [31]-[53] and by McDougall J, I agree that compliance with the time limit specified in s 17(2)(a) is an essential condition for a valid adjudication application. The language of the provision (“cannot be made unless”) is intractable; neither the structure nor the purpose of the Act suggests a different conclusion.
Power to determine compliance
97 The power to determine compliance with the essential requirements of an adjudication application could lie with the authorised nominating authority (to whom the application is made), the adjudicator (to whom the application is referred) or the Court exercising its supervisory jurisdiction.
98 The structure of the Act might suggest that it would be inappropriate to refer an invalid adjudication application to an adjudicator; there would then be an implied obligation on the authorised nominating authority to consider the validity of the application made to it. Arguably the duty to refer an application to an adjudicator (see s 17(6)) is limited to a valid adjudication application. However, as no party before this Court argued for that construction, it may be put to one side.
99 The second possibility is that power to determine the validity of an adjudication application lies with the adjudicator. In a practical sense, there is much to recommend the view that the adjudicator is able to determine whether the application complies with provisions such as s 17(2)(a), as the adjudicator sought to do in the present case. However, there are factors which support a contrary view. First, s 22(1), identifying that which the adjudicator is to determine, makes no reference to the validity of the adjudication application. Secondly, s 22(2), limits the matters which the adjudicator is entitled to consider to the Act, the provisions of the construction contract, the payment claim, the payment schedule, submissions in support of either and the results of any inspection. In a provision which renders the consideration of any other material impermissible, the absence of any reference to the circumstances in which the adjudication application was made is highly significant.
100 Thirdly, the descriptions of the matters to which payment claims and payment schedules must relate and hence (at least implicitly) the matters to which the submissions in support can properly refer, do not expressly identify any aspect of the circumstances in which the adjudication application was made.
101 For these reasons, the proper construction of the Security of Payment Act is that it does not permit the adjudicator to determine the validity of the adjudication application. The challenge in the present case must therefore be determined on the basis of facts found by the Court.
Challenge to opinion of adjudicator
102 If the last conclusion be wrong, and the practical considerations should be considered determinative, the decision of the adjudicator in respect of the validity of an adjudication application would not be beyond review. The opinion of the Tribunal that its jurisdiction was engaged cannot be arbitrary, capricious or irrational and must be an opinion open to a reasonable person correctly understanding the meaning of the law under which authority is conferred: The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42 ; 69 CLR 407 at 430 and 432 (Latham CJ); Buck v Bavone [1976] HCA 24 ; 135 CLR 110 at 118-119 (Gibbs J); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; 197 CLR 611 at [133] - [135] (Gummow J); Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32 ; 78 ALJR 992 at [37] - [38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 ; 84 ALJR 369 at [23] - [24] (Gummow ACJ and Kiefel J, dissenting as to the result) and at [102]-[103] (Crennan and Bell JJ). Although, as noted by Gibbs J in Buck v Bavone , the Court may be slow to intervene where authority depends upon a matter of “opinion or policy or taste”, that will not be so where authority depends upon a straightforward calculation of time, as in the present case.
Conclusions
103 As McDougall J has determined, the adjudicator correctly identified the dates on which various events had occurred. However, the adjudicator’s conclusion that the adjudication application was valid depended either on a miscalculation of the period identified in s 17(2)(a), or a misreading of the statute. If the error fell into the former category, the conclusion was one which not only lacked support in, but was inconsistent with, the primary facts as found. If in the latter category, the error involved a misconstruction of the statute in relation to the conferral of authority. On either view, the error was jurisdictional and is one in respect of which this Court can intervene.
104 Because there was no contention that this Court should decline to intervene on discretionary grounds, it is not necessary to consider the role that discretion may play in particular cases in refusing relief, the claim to which has otherwise been made good.
105 The first question removed into this Court assumes that the adjudicator made a determination that he could hear and determine the adjudication application which he had accepted. I would prefer to answer the question in a manner which does not assume that the adjudicator made a determination to that effect. If he formed a view as to that matter (as he did) it was without legal consequence and arguably cannot (or should not) be quashed or set aside.
106 In relation to the second question, I note that Brodyn may not have decided the matters identified in paragraphs (a), (b) and (c) of the question in such broad terms as is there assumed. Further, although I consider each of the propositions set out in the question to be wrong, those conclusions do not follow from some reconsideration of the law required by Kirk .
107 In relation to the third question, the Security of Payment Act does not limit the power of this Court to exercise its supervisory jurisdiction in circumstances where there has been no compliance with s 17(2)(a): the question may be answered accordingly.
108 I would answer the questions as follows:
Question 1: Whether the determination of the Second Defendant (the Adjudicator) on 18 March 2010 that he could hear and determine the first defendant’s adjudication application pursuant to the Building and Construction Industry Security of Payment Act (the Act) should be set aside or quashed for jurisdictional error in circumstances where the adjudicator incorrectly concluded (on the facts found by him and on the facts subsequently found by the Court) that the notice required by Section 17(2)(a) of the Act had been served on the Plaintiff in the time required by the Act.
Answer: The Supreme Court, in exercise of its supervisory jurisdiction:
(a) has power to determine that –
(i) an adjudication application has not been made in compliance with s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 ;
(ii) the determination of the adjudicator, made in the absence of a valid adjudication application, was invalid, and
(iii) there was non-compliance in the present case;
(b) has power to grant relief in the nature of certiorari and set the determination aside.
Question 2: Whether in light of the decision of the High Court Kirk v Industrial Relations Commission [2010] HCA 1 the decision in Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 should not be followed or was incorrectly decided so far as it held that:
a. the Supreme Court of New South Wales was not required to consider and determine the existence of jurisdictional error by an adjudicator in reaching a determination under the Act;
b. an order in the nature of certiorari was not available to quash or set aside a decision of an adjudicator under the Act;
c. the Act expressly or impliedly limited the Supreme Court of New South Wales’ power to consider and quash a determination for jurisdictional error by an adjudicator in reaching a determination under the Act.
Answer: To the extent that Brodyn Pty Ltd v Davenport held, in relation to an adjudication application which was not in compliance with s 17(2)(a) of the Act, the matters set out in the question at a, b and c, it was in error.
Question 3: Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator’s determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari.
Answer: The Act contains no such limitation.
109 It is not for this Court, which was asked to answer questions, to make consequential orders. With respect to costs, I agree with the order proposed by McDougall J.
110 McDOUGALL J : The Building and Construction Industry Security of Payment Act 1999 (NSW) ( Security of Payment Act ) seeks to ensure, among other things, that those who perform construction work pursuant to construction contracts have enforceable rights to progress payments. The statutory mechanisms for achieving that aim include a number of elements. There is a statutory right to progress payments despite any contractual provision to the contrary. In the event of disagreement, there is a statutory mechanism, called adjudication, for the interim determination of entitlements to progress payments.
111 This case raises two essential issues for decision. The first is whether, as a matter of principle, the determinations of adjudicators are amenable to relief in the nature of certiorari for jurisdictional error of law. The second is whether, on the facts of this case, the determination of the second defendant (the adjudicator) is vitiated by jurisdictional error.
112 Three questions, which were thought to underly those fundamental issues, were removed into this Court. That was done because it has been considered, since the decision of this Court in Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 , that the determinations of adjudicators are not amenable to orders, in the nature of certiorari, for jurisdictional error of law. However, the plaintiffs (Chase) submit that, to the extent that Brodyn so decided, the decision cannot stand having regard to the decision of the High Court of Australia in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 ; (2010) 239 CLR 531.
113 For the reasons that follow, I conclude that:
(1) in principle, determinations by adjudicators are amenable to orders in the nature of certiorari (for convenience, I will generally shorten this cumbersome phrase to “certiorari”) for jurisdictional error; and
(2) the adjudicator’s determination in this case is vitiated by jurisdictional error.
The contract, the payment claim and the determination
114 Chase and the first defendant (Hamo) made a construction contract under which Hamo undertook to carry out fitout work for Chase at the Chase Oyster Bar in Chatswood Chase.
115 Hamo made a number of payment claims. The claim at issue in these proceedings is constituted by a tax invoice dated 22 December 2009 but served on Chase on 31 December 2009. Chase did not provide a payment schedule in response to the payment claim.
116 The due date for payment of the claimed amount was 13 January 2010.
117 Chase’s failure to provide a payment schedule meant that it became liable to pay the claimed amount to Hamo on the due date (see s 14(4) of the Security of Payment Act). It did not do so. Thus, Hamo had the right either to sue for the claimed amount as a debt or to make an adjudication application (see s 15(2) of the Security of Payment Act ). It sought to follow the latter course. By s 17(2)(a) of the Security of Payment Act , Hamo could not do so unless it had notified Chase, within 20 business days after 13 January 2010, of its intention to apply for adjudication. Hamo did not give that notice until 11 February 2010: well outside the 20 business day period for which s 17(2)(a) provides.
118 Nonetheless, Hamo made an adjudication application. The adjudicator was appointed. Chase lodged with the adjudicator what was (or purported to be) an adjudication response. The adjudicator concluded that he should not consider the adjudication response, because Chase had not provided a payment schedule within the time provided by s 17(2)(b) of the Security of Payment Act .
119 The adjudicator made a determination dated 18 March 2010. He concluded that Hamo was entitled to payment of the claimed amount, together with interest.
120 Although there was no payment schedule, nor (according to the adjudicator) any valid adjudication response, nonetheless the adjudicator considered whether (among other things) Hamo’s notice pursuant to s 17(2)(a) of the Security of Payment Act had been given within the time required. He concluded that it had (see para 24 of the determination). That conclusion cannot be right, having regard to the facts that I have set out above. Nor could it be right, even on the findings of fact made by the adjudicator, which were that:
(1) the payment claim was served on 22 December 2009, by facsimile transmission (para 15);
(2) the due date for payment of the claimed amount was 6 January 2010 (para 31); and
(3) the notice pursuant to s 17(2)(a) was given, by facsimile transmission, on 11 February 2010 (para 19).
121 It will be seen from what I have said at [8] and [9] above that the adjudicator’s findings as to the date of service of the payment claim (22 December 2009) and the due date for payment of the claimed amount (6 January 2010) were erroneous. Nonetheless, his finding as to the date on which Hamo gave Chase notice pursuant to s 17(2)(a) of the Security of Payment Act (11 February 2010) was correct. On the findings of fact made by the adjudicator, there was no evidence to support his finding that the notice pursuant to s 17(2)(a) had been given within 20 business days of the due date for payment. Nor is there any evidence to support that finding if one looks at what I have said above is the correct due date for payment. On any view, the adjudicator’s finding was plainly wrong.
122 Chase submits that compliance with s 17(2)(a) of the Security of Payment Act was essential if the adjudicator were to have jurisdiction. Thus, it submits, the adjudicator’s finding amounts to jurisdictional error.
123 It is common ground that, if there is no jurisdictional error, then there is no basis on which the Court can interfere with the adjudicator’s determination.
The questions removed into this Court
124 By order made on 23 April 2010, the following questions were removed into this Court (I have corrected some minor grammatical and other infelicities):
1. Whether the determination of the Second Defendant (the Adjudicator) on 18 March 2010 that he could hear and determine the first defendant’s adjudication application pursuant to the Building and Construction Industry Security of Payment Act (the Act) should be set aside or quashed for jurisdictional error in circumstances where the adjudicator incorrectly concluded (on the facts found by him and on the facts subsequently found by the Court) that the notice required by Section 17 (2)(a) of the Act had been served on the Plaintiff in the time required by the Act.
2. Whether in light of the decision of the High Court Kirk v Industrial Relations Commission [2010] HCA 1 the decision in Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 should not be followed or was incorrectly decided so far as it held that:
a. the Supreme Court of New South Wales was not required to consider and determine the existence of jurisdictional error by an adjudicator in reaching a determination under the Act;
b. an order in the nature of certiorari was not available to quash or set aside a decision of an adjudicator under the Act;
c. the Act expressly or impliedly limited the Supreme Court of New South Wales’ power to consider and quash a determination for jurisdictional error by an adjudicator in reaching a determination under the Act.
3. Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator’s determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari.
125 The resolution of those questions raises the following issues:
(1) What, precisely, was decided by Brodyn ?
(2) What, relevantly, was decided by Kirk ?
(3) What is the content of the expressions “jurisdiction” and “jurisdictional fact”?
(4) What are the relevant provisions of the Security of Payment Act ?
(5) Does s 17(2)(a) of the Security of Payment Act establish a condition that must be satisfied before an adjudicator has jurisdiction to determine an application to which s 17(1)(b) applies; that is, does it state a jurisdictional fact that must be proved?
(6) Does the adjudicator’s decision on the jurisdictional fact bind the Court?
(7) Are adjudicators tribunals exercising government powers, so that in principle their determinations are amenable to certiorari?
126 I propose first to deal with those issues, and then turn, to the questions that were removed into this Court.
The decision in Brodyn
127 Before this Court decided Brodyn , it had been held in a number of first instance decisions that the determinations of adjudicators were amenable to certiorari for jurisdictional error of law, but not for non-jurisdictional error of law. See, by way of example only, Musico v Davenport [2003] NSWSC 977 at [52] to [54].
128 Brodyn concerned a subcontract between the appellant (plaintiff, Brodyn) and the second respondent (second defendant, Dasein). Dasein served a number of payment claims. The payment claim in question was served (so Brodyn said) after the subcontract had been terminated. Brodyn said that the payment claim was invalid, because it was not served “in respect of” a reference date (see s 13(5) of the Security of Payment Act ). (By s 8(2) of the Security of Payment Act , the “reference date” is either the date fixed by the contract for the making of progress claims or the last day of each month from the date when construction work was first carried out.)
129 Dasein made an adjudication application which was dealt with by the first respondent (first defendant, Mr Davenport). Mr Davenport made a determination in favour of Dasein. Brodyn sought certiorari to quash the determination on the basis that, since there was no valid payment claim, there was no valid adjudication application and Mr Davenport lacked power to make a determination.
130 At first instance, Gzell J refused relief, because he thought that to grant it would contravene the regime established by s 25 of the Security of Payment Act . (Section 25 provides for adjudication certificates, issued pursuant to s 24, which set out relevant details of the determination, to be filed as a judgment for a debt in a court of competent jurisdiction. By subs (4), it provides, among other things, that if the respondent seeks to have the judgment set aside, it cannot challenge the determination.) See Brodyn Pty Ltd v Davenport [2004] NSWSC 254 at [21] . His Honour said that, since no useful result could flow from the grant of prerogative relief, it should be refused.
131 In the appeal, Brodyn asserted that there had been an error in the exercise of discretion, or alternatively a denial of natural justice, in the way that Gzell J had reasoned. Dasein argued, pursuant to a notice of contention, that prerogative relief was not available for two reasons. The first was that adjudicators are not tribunals or inferior courts amenable to such relief. The second was that, on the proper construction of the Act, certiorari was not in any event available.
132 Hodgson JA, with whom Mason P and Giles JA agreed, said at 436[37] that the appeal required consideration of the following issues:
(1) was there error in the exercise of discretion?
(2) What were the grounds on which the Court might intervene in determinations made under the Security for Payment Act ?
(3) Was the payment claim valid and, if it was not, was there a remedy?
(4) Was there a denial of natural justice?
(5) Was the absence of any licence under the Home Building Act 1989 (NSW) relevant?
133 His Honour concluded at 437[43] that there had been an error in the exercise of discretion, and that the Court should consider whether to grant or refuse relief, or whether to send the matter back for further hearing.
134 At 437[44] and following, his Honour considered the basis on which review might be available. He referred to the decision in Musico , starting with the paragraphs ([28] to [32]) in which I had held that in principle, and apart from any privative effect that the Security of Payment Act might have, certiorari would lie against the determinations of adjudications.
135 At 438[46], Hodgson JA stated that “[t]here is a real question whether an adjudicator is properly considered a tribunal exercising governmental powers”. His Honour did not elaborate on this question.
136 From 438[47], his Honour considered what I had said in Musico as to the grounds on which review might be available (at [47] to [52]). As I have said, the conclusion reached in Musico was that certiorari was available for jurisdictional error of law, but not for non-jurisdictional error of law. Hodgson JA agreed with the latter proposition ( Brodyn at 440[51]).
137 Hodgson JA described the legislative intention embodied in the Security of Payment Act at 440–441[51] as being “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”. His Honour identified other features of the legislative scheme at 440–441 [51]:
(1) payments were on account, and final rights and liabilities could be determined at a later stage (ss 3(4), 32);
(2) there was “a minimum of opportunity for court involvement” (ss 3(3), 25(4)); and
(3) the remedy of suspension of work given by s 27 would only be of utility if the protection of s 27(3) (negation of liability for loss or damage suffered because of suspension) were effective. If determinations “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”.
138 At 441[52] and following, his Honour sought to identify “the conditions laid down by the [ Security of Payment ] Act as essential for there to be ... a determination” that had “the strong legal effect provided by the [Security of Payment] Act”. His Honour said that if a determination did not meet those requirements then it was not in truth any determination, and was void. In those circumstances, his Honour said, “[a] court of competent jurisdiction could... 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”.
139 At 441[53], Hodgson JA identified (although not necessarily exhaustively – see at 441–442[55]) five “basic and essential requirements” that he perceived to be necessary for the existence of a determination. I set out that paragraph:
[53] 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:
1. The existence of a construction contract between the claimant and the respondent, to which the Act applies (s 7 and s 8).
2. The service by the claimant on the respondent of a payment claim (s 13).
3. The making of an adjudication application by the claimant to an authorised nominating authority (s 17).
4. The reference of the application to an eligible adjudicator, who accepts the application (s 18 and s 19).
5. 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)).
140 At 441[54], Hodgson JA turned to the “more detailed requirements” of the Security of Payment Act . Among those, his Honour referred to “s 17 as to the time when an adjudication application can be made and as to its contents”. His Honour said, of those sections, that to ask whether they were jurisdictional or non-jurisdictional was “to cast the net too widely”. Instead, his Honour said, “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”. I set out [54]:
[54] 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.
141 His Honour answered that question at 441[55] by saying that, on the proper construction of the Security of Payment Act , “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”.
142 After discussing other matters, which do not presently require consideration, Hodgson JA said at 443[58] that, in the absence of “defects of the kind I have been discussing”, certiorari was not available. To grant it, in the absence of any of those defects, would be inconsistent with the legislative intention as it appeared in the Security of Payment Act . Further, his Honour repeated, it was by no means clear that an adjudicator is a Tribunal in respect of whom certiorari might lie. I set out [58]:
[58] 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.
143 For clarity, I emphasise that the “defects” to which Hodgson JA referred were absence of one or other of the basic and essential requirements identified at 441[53]; absence of any other basic and essential requirement that might later be “discovered” (my word, not his Honour’s); or want of good faith in the “ Hickman” sense ( R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598).
144 In addition, as his Honour said at 443[60], a determination would be void if there were fraud on the part of the claimant in which the adjudicator were complicit.
145 In those circumstances, Hodgson JA said at 443[61], where a determination were void, the Court could grant appropriate declaratory and injunctive relief. But if a determination (or more accurately an adjudication certificate stating the outcome of the determination) were filed as a judgment, the resulting judgment would not be void. I set out [61]:
[61] Where the adjudicator’s determination is void for one of the reasons discussed above, then until it is filed as a judgment, proceedings can appropriately be brought in a court with jurisdiction to grant declarations and injunctions to establish that it is void and to prevent it being filed. However, once it has been filed, the resulting judgment is not void. An application can be made to set aside the judgment; and as noted (at 437 [41] and [42] supra), it is not contrary to s 25(4)(a)(iii) to do so on the basis that there is in truth no adjudicator’s determination.
146 The reasoning in Brodyn establishes the following propositions:
(1) certiorari is not available for non-jurisdictional error of law on the face of the record.
(2) The basic and essential requirements for the existence of a valid adjudicator’s determination are the five matters identified at 441 [53]; Hickman good faith; and no “substantial denial” of the measure of natural justice that the Security of Payment Act affords.
(3) Other basic and essential requirements may be discovered.
(4) The consequence of absence of a basic and essential requirement is that the determination is void.
(5) Leaving to one side (as from hereon I shall do) fraud in which the adjudicator is complicit, a determination will only be void if a basic and essential requirement for validity is lacking.
(6) If a determination is void, through absence of a basic and essential requirement for validity, relief may be granted by way of declaration and injunction.
(7) It is inconsistent with the legislative intention demonstrated by the Security of Payment Act that relief in the nature of certiorari should be available where there is some element of invalidity falling short of absence of a basic and essential requirement.
147 If, on a proper analysis, the requirement of s 17(2)(a) is regarded as going to jurisdiction (on the basis that it means what it says, so that an adjudication application to which it applies cannot be made if notification is not given as stipulated), it would follow that the decision in Brodyn should be read as denying certiorari for what would be, on that hypothetical analysis, jurisdictional error.
148 The basic and essential requirements for the existence of a valid determination, as they appear from the reasoning in Brodyn , may also be characterised (as Hodgson JA said at 441[54]) as essential pre-conditions for the existence of an adjudicator’s determination. As Basten JA pointed out in Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd [2005] NSWCA 228 ; (2005) 63 NSWLR 385 at 404[71], “that description reflects the concept of “jurisdictional error” under the general law”.
149 The decision in Brodyn appears to assume that there is a distinction between a basic and essential requirement for the existence of an adjudicator’s determination and a jurisdictional condition, or jurisdictional fact. However, the decision does not analyse the relevant requirements of the Act in terms of jurisdiction; the framework of analysis was restricted by the search for basic and essential conditions of validity.
150 Hodgson JA suggested that the requirements of, among others, s 17 were not basic and essential requirements. As I have noted, his Honour said at 441[55] that the legislature did not fix exact compliance with (again among others) s 17 as essential to the existence of a determination. Thus, consistent with what his Honour said at 443[58], certiorari would not be available where a determination is given on an adjudication application brought without notification as required by s 17(2)(a).
151 That Hodgson JA did intend that certiorari should be denied in cases of jurisdictional error of law falling short of breach of a basic and essential requirement is, I think, shown by his Honour’s observation at 441[54], that the approach of looking for jurisdictional or non-jurisdictional error “has tended to cast the net too widely”.
152 In short, it seems to me that the essential issues in this case, as identified at [4] above, arise only if there are, among the more detailed requirements of the Security of Payment Act identified by Hodgson JA in Brodyn at 441[54], requirements, the satisfaction of which in fact is required as a condition of an adjudicator’s exercise of the statutory power to determine the amount of a progress claim.
The decision in Kirk
153 Kirk concerned alleged contraventions of ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983 (NSW) (OH&S Act). Those sections imposed on employers duties to ensure the health, safety and welfare at work of their employees (s 15(1)), and that persons other than employees were not exposed to risks to health or safety arising from the conduct of the employer’s business (s 16(1)). The appellant was prosecuted in the Industrial Court of New South Wales for contraventions of those sections. He was convicted and sentenced. The High Court held by majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) that certain errors on the part of the Industrial Court amounted to jurisdictional errors and errors of law on the face of the record.
154 Section 179 of the Industrial Relations Act 1996 (NSW) attempted to protect decisions of the Industrial Court from, among other things, orders in the nature of prohibition or certiorari. The majority stated at 581[100] that it was beyond the legislative power of a State to take away from that State’s Supreme Court its supervisory power to grant relief for jurisdictional error. Accordingly, their Honours said at 582-583[105], s 179 should not be construed to preclude certiorari for jurisdictional error on the part of the Industrial Court.
155 The majority considered that the errors on the part of the Industrial Court (both as to the construction of ss 15(1) and 16(1) of the OH&S Act and as to permitting the defendant, Mr Kirk, to be called in breach of the non-waivable provisions of s 17(2) of the Evidence Act 1995 (NSW)) were jurisdictional errors, and thus that the Court’s conviction and sentence of Mr Kirk could be quashed by the grant of relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW).
156 The errors arising from the wrongful construction of ss 15(1) and 16(1) of the OH&S Act were jurisdictional errors because they led the Industrial Court to convict and sentence Mr Kirk for offences that had not been proved. Unless an offence had been proved, to the requisite standard, there was no power to convict or sentence ( Kirk at 574–575[74], [75].)
157 The error resulting from calling Mr Kirk to give evidence for the prosecution arose because the Industrial Court only had power to hear the charges applying the laws of evidence. The trial that took place was not a trial in accordance with the laws of evidence. It was thus in breach of the limits of the power given to the Industrial Court ( Kirk at 575[76].)
158 The majority pointed out at 573[71] that “[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error”. However, by reference to the decision in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 , 177–178, the majority identified three categories of jurisdictional error ( Kirk at 573–574[72]):
(1) the mistaken denial or assertion of jurisdiction, or (in a case where jurisdiction does exist), misapprehension or disregard of the nature of or limits on functions and powers;
(2) entertaining a matter or making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers, as identified from the relevant statutory context;
(3) proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions. (Of this last example, it was said in Craig at 178 that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.”)
159 At 574[73] of Kirk , the majority emphasised “that the reasoning in Craig ... is not to be seen as providing a rigid taxonomy of jurisdictional error”, and “not to be taken as marking the boundaries of the relevant field”.
160 Their Honours considered the effect of the relevant privative provision (s 179 of the Industrial Relations Act ) from 578[91]. In essence, their Honours concluded that Chapter III of the Commonwealth Constitution required that there be a body fitting the description “the Supreme Court of a State”. By reference to Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 228 CLR 45 at 76[63], their Honours noted that it was beyond the legislative power of the States to alter the constitution or character of their Supreme Courts to such an extent that they ceased to meet that constitutional requirement.
161 At 580[97], the majority noted that, at federation, each State Supreme Court had the jurisdiction of the Court of Queens Bench in England: including general power to grant certiorari for jurisdictional error, notwithstanding some statutory privative provision. At 580–581[98], their Honours concluded that the supervisory role of the State’s Supreme Courts, exercised through prerogative writs, was a defining characteristic. That supervisory jurisdiction was exercised according to principles set out, in the last instance, by the High Court pursuant to its appellate jurisdiction under s 73 of the Constitution (at 581[99]). If a State Supreme Court were deprived of its supervisory jurisdiction, there would be “islands of power immune from supervision and restraint”, and the court so deprived would lack one of its defining characteristics.
162 The process of reasoning that I have summarised led the majority to construe s 179 of the Industrial Relations Act as not extending to prohibit relief in the nature of certiorari for jurisdictional error of law (at 582[104]).
Jurisdiction and jurisdictional facts
163 As Gleeson CJ and McHugh J observed in Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at 523–524[24], “[j]urisdiction is the authority to decide”.
164 A “jurisdictional fact” is, in general terms, “a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question” ( Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43 ; (2008) 236 CLR 120 at 139[43]).
165 Spigelman CJ pointed out in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55 at 63–64[37] that “[t]he parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality)”. As his Honour said at 64[38], those two features “are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense”. The interrelationship arose because essentiality may often suggest objectivity.
166 Whether something is a jurisdictional fact is ascertained by a process of construction, undertaken in the usual way. The court will have regard to the full statutory context and to the object that the legislation seeks to achieve. One asks, in essence, whether the legislature intended that the presence or absence of the factual condition should invalidate an attempted exercise of power: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 390–391[93] (McHugh, Gummow, Kirby and Hayne JJ).
167 A jurisdictional fact may be the existence or non-existence of a specified state of affairs. For simplicity, I will talk only in terms of a jurisdictional fact as the existence of a specified state of affairs. The legislature may specify that the existence of that state of affairs – the jurisdictional fact – is essential to the exercise of statutory power. Or it may go further, and specify as well that the donee of the power is authorised to decide, authoritatively, the existence of the jurisdictional fact.
168 In the former case, if the exercise of power is challenged on the basis that the jurisdictional fact does not exist, the court must itself inquire into the existence of that fact. It may grant relief against the exercise of jurisdiction if it finds that the jurisdictional fact did not exist.
169 In the latter case, the court inquires into the primary decision-maker’s decision that the jurisdictional fact exists, but does not itself inquire into the existence of that jurisdictional fact.
170 In Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 , Dixon J observed at 391 that it was open to the legislature to make some fact a condition of jurisdiction of a court. However, as his Honour pointed out, if jurisdiction was dependent upon the actual existence of that fact, then the proceedings and orders of the court would always be, in effect, only contingently valid: “until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid”.
171 Because of the perceived inconvenience of that state of affairs, Dixon J said that the courts should not construe legislation as making the jurisdiction of a court depend on the actual existence of a fact unless that intention were clearly expressed. In the absence of such a clear intention, the better approach is to construe the statutory requirement as one, the satisfaction of which is a matter for the court whose jurisdiction depends on the existence of that fact to decide.
172 In short, the proper approach to construction, where some fact is specified as a pre-condition to the exercise of jurisdiction by a court, is to regard it as a matter for that court to decide whether or not the fact exists, unless the statute clearly precludes that approach.
173 It is necessary to bear in mind that Dixon J was talking of the position of an inferior court. Of course, it is open to the legislature both to make the existence of a fact the pre-condition to the assumption of jurisdiction by a tribunal other than a court, and to leave it to the tribunal to decide whether or not the fact exists. There is recognised a distinction between inferior courts on the one hand and tribunals on the other. See the decision of the High Court in Craig at 179. The Court there pointed out that, although the distinction between inferior courts and tribunals has been effectively abolished in England, it had not been discarded in this country.
174 The distinction means, among other things, that errors which, if committed by a tribunal, might amount to jurisdictional error will not ordinarily, if committed by an inferior court, have the same result. That arises in part because there is a presumption that tribunals do not have the power to decide authoritatively questions of law (so as to give themselves jurisdiction where it does not exist), whereas this is part of the ordinary work of courts. It recognises, also, that in the usual way the decisions of inferior courts may be corrected on appeal.
175 None of this means that the analysis of Dixon J in Parisienne Basket Shoes cannot be applied to tribunals. It means that care must be taken in deciding whether or not, in a particular case, the approach to construction outlined at [65] in respect of inferior courts applies in respect of a tribunal.
176 Even if it is held, as a matter of construction, that a court or tribunal does have power to decide jurisdictional facts, it does not follow that a decision by a court or tribunal on a jurisdictional fact is, in all circumstances, immune to review. Latham CJ stated in R v Connell; Ex parte Hetton Bellbird Collieries Limited [1944] HCA 42 ; (1944) 69 CLR 407 at 432 that an opinion formed by taking into account irrelevant considerations, or misconstruing the relevant terms of the legislation, is no opinion at all, just as if the opinion had been formed irrationally, capriciously or in bad faith:
It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
177 That formulation was picked up in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 ; (2010) 84 ALJR 369. Gummow ACJ and Kiefel J said at 375–376[23]–[24] that a decision by the primary decision-maker on the existence of a jurisdictional fact which is “arbitrary, capricious, [or] irrational”, or made “upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material” or which was based on contradictory or illogical reasoning “is treated as a failure to exercise jurisdiction”. That was so, their Honours said, because “[t]here has been a purported exercise of public power in the absence of the necessary jurisdictional fact”. Their Honours dissented on the outcome of that case, but their statement of principle is consistent with the views of the majority: see, for example, Crennan and Bell JJ at 386 – 387[102] – [103].
178 The fundamental issue on this point is whether s 17(2)(a) embodies, as a criterion of jurisdiction, a “jurisdictional fact” in the sense explained in Gedeon at 139[43] (see at [57] above). If there is such a criterion and it is not satisfied then, as the Court pointed out in the sentence immediately following that from which I quoted, “the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker”.
179 Spigelman CJ suggests, at [35], that s 17(2)(a) does not “invoke a jurisdictional fact” but that it is either:
(1) something that limits the content of the power otherwise conferred upon adjudicators by the Security of Payment Act ; or
(2) an element of the right given by s 17(1) to make an adjudication application.
180 With respect, I am not sure that the distinction is a real one, at least in terms of s 17(2)(a). There is encompassed in that provision a requirement of notification within a specified period. Whether or not that notice is given is a matter of fact. If the fact of notification, within the specified period, is absent then the prohibition stated in the introductory words of the subsection applies.
181 I accept (for the reasons that I give at [226] to [228] below, that the giving of notice in accordance with s 17(2)(a) is an essential element of the right to make an adjudication application in accordance with s 17(1). But it does not follow that the existence in fact of the requisite notice is not to be characterised as a “jurisdictional fact”.
182 In this matter, the alleged jurisdictional fact is not specified in terms as a condition of an adjudicator’s exercise of the statutory function of determining an adjudication application. But it is a condition, or essential element, of the right to make an application under s 17(1). Accordingly, it is necessary to look in more detail at the scheme of the Security of Payment Act to understand how the issue arises.
183 However, I agree with Spigelman CJ, as his Honour says at [36], that s 17(2)(a) is not addressed to the adjudicator, and does not fall within the competence of the adjudicator to “determine” within s 22(1) of the Security of Payment Act . Further, I agree with Basten JA, for the reasons that his Honour gives at [97] to [101], that the power to determine compliance with s 17(2)(a) is not given to the adjudicator.
Relevant provisions of the Security of Payment Act
184 The object of the Security of Payment Act is set out in s 3(1), and the means by which that object is achieved are set out in s 3(2), (3). The object is to ensure that those who carry out construction work have an enforceable right to receive progress payments. The means include the grant of a statutory right to such payments, and the mechanism of payment claims, payment schedules and adjudication. I set out s 3:
3 Object of Act
(1) The object of this Act is to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.
(2) The means by which this Act ensures that a person is entitled to receive a progress payment is by granting a statutory entitlement to such a payment regardless of whether the relevant construction contract makes provision for progress payments.
(3) The means by which this Act ensures that a person is able to recover a progress payment is by establishing a procedure that involves:
(a) the making of a payment claim by the person claiming payment, and
(b) the provision of a payment schedule by the person by whom the payment is payable, and
(c) the referral of any disputed claim to an adjudicator for determination, and
(d) the payment of the progress payment so determined.
(4) It is intended that this Act does not limit:
(a) any other entitlement that a claimant may have under a construction contract, or
(b) any other remedy that a claimant may have for recovering any such other entitlement.
185 Relevant definitions in s 4 include the definition of “adjudication application”: “an application referred to in section 17”. “Due date” is defined to mean, “in relation to a progress payment... the due date for the progress payment, as referred to in section 11”.
186 Section 8 gives the statutory right to progress payments “[o]n and from each reference date under a construction contract”. Sections 9 and 10 provide for the amount and valuation of progress payments. Section 11(1) states that a progress payment becomes due and payable either in accordance with terms of the contract or, if the contract makes no express provision, ten business days after a payment claim is received.
187 Sections 13 and 14 set out the regime for payment claims and payment schedules. It is to be noted that they employ language which is in parts apparently permissive and in other parts apparently mandatory. For that reason, I set them out in full:
13 Payment claims
(1) A person referred to in section 8 (1) who is or who claims to be entitled to a progress payment (the claimant ) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.
(2) A payment claim:
(a) must identify the construction work (or related goods and services) to which the progress payment relates, and
(b) must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount ), and
(c) must state that it is made under this Act.
(3) The claimed amount may include any amount:
(a) that the respondent is liable to pay the claimant under section 27 (2A), or
(b) that is held under the construction contract by the respondent and that the claimant claims is due for release.
(4) A payment claim may be served only within:
(a) the period determined by or in accordance with the terms of the construction contract, or
(b) the period of 12 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied), whichever is the later.
(5) A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.
(6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.
14 Payment schedules
(1) A person on whom a payment claim is served (the respondent ) may reply to the claim by providing a payment schedule to the claimant.
(2) A payment schedule:
(a) must identify the payment claim to which it relates, and
(b) must indicate the amount of the payment (if any) that the respondent proposes to make (the scheduled amount ).
(3) If the scheduled amount is less than the claimed amount, the schedule must indicate why the scheduled amount is less and (if it is less because the respondent is withholding payment for any reason) the respondent’s reasons for withholding payment.
(4) If:
(a) a claimant serves a payment claim on a respondent, and
(b) the respondent does not provide a payment schedule to the claimant:
(i) within the time required by the relevant construction contract, or
(ii) within 10 business days after the payment claim is served, whichever time expires earlier, the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.
188 Section 15 applies where there is no payment schedule, and where the claimed amount is not paid by its due date. In those circumstances, the claimant is given the right either to sue for the claimed amount as a debt or to make an adjudication application (see s 15(2)). In addition, the claimant may, on notice, suspend work under the construction contract.
189 Adjudication applications are dealt with by s 17. By subs (1), a claimant may apply for adjudication either where the scheduled amount is less than the claimed amount, or where there is no payment schedule and the claimed amount is not paid in full. In the latter event, there is a requirement for 20 business days’ notice of intention to apply for adjudication. Because the section is cast in language that in terms appears to be mandatory, I set it out in full:
17 Adjudication applications
(1) A claimant may apply for adjudication of a payment claim (an adjudication application ) if:
(a) the respondent provides a payment schedule under Division 1 but:
(i) the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or
(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or
(b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.
(2) An adjudication application to which subsection (1) (b) applies cannot be made unless:
(a) the claimant has notified the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant’s intention to apply for adjudication of the payment claim, and
(b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant’s notice.
(3) An adjudication application:
(a) must be in writing, and
(b) must be made to an authorised nominating authority chosen by the claimant, and
(c) in the case of an application under subsection (1) (a) (i)—must be made within 10 business days after the claimant receives the payment schedule, and
(d) in the case of an application under subsection (1) (a) (ii)—must be made within 20 business days after the due date for payment, and
(e) in the case of an application under subsection (1) (b)—must be made within 10 business days after the end of the 5-day period referred to in subsection (2) (b), and
(f) must identify the payment claim and the payment schedule (if any) to which it relates, and
(g) must be accompanied by such application fee (if any) as may be determined by the authorised nominating authority, and
(h) may contain such submissions relevant to the application as the claimant chooses to include.
(4) The amount of any such application fee must not exceed the amount (if any) determined by the Minister.
(5) A copy of an adjudication application must be served on the respondent concerned.
(6) It is the duty of the authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator (being a person who is eligible to be an adjudicator as referred to in section 18) as soon as practicable.
190 An adjudicator is appointed (more accurately, “taken to have been appointed”) under s 19. Adjudication applications are made to an authorised nominating authority. That authority refers an application to an adjudicator. If the adjudicator accepts it, by giving notice thereof to both parties, he or she is thereby “taken to have been appointed to determine the application”.
191 Section 20 provides for adjudication responses. There is no right for a respondent to lodge an adjudication response unless it has provided a payment schedule within the time provided by s 14(4) or 17(2)(b), as the case may be (s 20(2A)).
192 Section 22(1) sets out what it is that an adjudicator is to do and s 22(2) – (4) set out how the adjudicator is to carry out that task. The “determination” is the performance of the tasks described in subs (1). What is determined is the amount of the progress payment, its due date for payment and the rate of interest payable. The issues of fact and law dealt with in the reasons required to be given pursuant to s 22(3)(b) are not “determined” in that sense, although undoubtedly they may (and in the ordinary case will) explain the determination that was made. I set out s 22:
22 Adjudicator’s determination
(1) An adjudicator is to determine:
(a) the amount of the progress payment (if any) to be paid by the respondent to the claimant (the adjudicated amount ), and
(b) the date on which any such amount became or becomes payable, and
(c) the rate of interest payable on any such amount.
(2) In determining an adjudication application, the adjudicator is to consider the following matters only:
(a) the provisions of this Act,
(b) the provisions of the construction contract from which the application arose,
(c) the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim,
(d) the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule,
(e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates.
(3) The adjudicator’s determination must:
(a) be in writing, and
(b) include the reasons for the determination (unless the claimant and the respondent have both requested the adjudicator not to include those reasons in the determination).
(4) If, in determining an adjudication application, an adjudicator has, in accordance with section 10, determined:
(a) the value of any construction work carried out under a construction contract, or
(b) the value of any related goods and services supplied under a construction contract, the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or of those goods and services, to give the work (or the goods and services) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work (or the goods and services) has changed since the previous determination.
(5) If the adjudicator’s determination contains:
(a) a clerical mistake, or
(b) an error arising from an accidental slip or omission, or
(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the determination, or
(d) a defect of form, the adjudicator may, on the adjudicator’s own initiative or on the application of the claimant or the respondent, correct the determination.
193 Section 23 requires the respondent to pay the adjudicated amount (if any) either five business days after service on it on the determination or on the date fixed by the adjudicator pursuant to s 22(1)(b).
194 Where the adjudicated amount is not so paid, the claimant may request the issue of an adjudication certificate and may serve notice of intention to suspend work under the contract (s 24(1)):
24 Consequences of not paying claimant adjudicated amount
(1) If the respondent fails to pay the whole or any part of the adjudicated amount to the claimant in accordance with section 23, the claimant may:
(a) request the authorised nominating authority to whom the adjudication application was made to provide an adjudication certificate under this section, and
(b) serve notice on the respondent of the claimant’s intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract.
195 By s 25, an adjudication certificate may be filed “as a judgment for a debt in any court of competent jurisdiction”. Section 25(4) deals with attempts to have the judgment set aside. Subparagraph (a)(iii), prohibiting any challenge to the adjudicator’s determination, is the nearest thing to a privative provision in the Act, in relation to the determinations of adjudicators. The prohibition on challenging the adjudicator’s determination refers to the determination of the three matters specified in s 22(1). I set out s 25:
25 Filing of adjudication certificate as judgment debt
(1) An adjudication certificate may be filed as a judgment for a debt in any court of competent jurisdiction and is enforceable accordingly.
(2) An adjudication certificate cannot be filed under this section unless it is accompanied by an affidavit by the claimant stating that the whole or any part of the adjudicated amount has not been paid at the time the certificate is filed.
(3) If the affidavit indicates that part of the adjudicated amount has been paid, the judgment is for the unpaid part of that amount only.
(4) If the respondent commences proceedings to have the judgment set aside, the respondent:
(a) is not, in those proceedings, entitled:
(i) to bring any cross-claim against the claimant, or
(ii) to raise any defence in relation to matters arising under the construction contract, or
(iii) to challenge the adjudicator’s determination, and
(b) is required to pay into the court as security the unpaid portion of the adjudicated amount pending the final determination of those proceedings.
196 Section 27 deals with suspension of work where authorised by s 15, s 16 or s 24. Subsection (3) protects a claimant who suspends work:
27 Claimant may suspend work
(1) A claimant may suspend the carrying out of construction work (or the supply of related goods and services) under a construction contract if at least 2 business days have passed since the claimant has caused notice of intention to do so to be given to the respondent under section 15, 16 or 24.
...
(3) A claimant who suspends construction work (or the supply of related goods and services) in accordance with the right conferred by subsection (1) is not liable for any loss or damage suffered by the respondent, or by any person claiming through the respondent, as a consequence of the claimant not carrying out that work (or not supplying those goods and services) during the period of suspension.
197 It is convenient to refer to other relevant provisions of the Security of Payment Act at this point. Section 28 deals with the authorisation of nominating authorities. Subject to the regulations, they are authorised by the Minister, who may withdraw any authority so given. There is no equivalent provision for authorisation of adjudicators. Eligibility to act as an adjudicator is dealt with by s 18. The only requirements are that the adjudicator be a natural person, and have such qualifications, expertise and experience as may be prescribed.
198 Section 32 provides that, apart from s 34 (which deals, expansively, with contracting out), the Act has no effect on rights under the contract, or on any civil proceedings arising under the contract:
32 Effect of Part on civil proceedings
(1) Subject to section 34, nothing in this Part affects any right that a party to a construction contract:
(a) may have under the contract, or
(b) may have under Part 2 in respect of the contract, or
(c) may have apart from this Act in respect of anything done or omitted to be done under the contract.
(2) Nothing done under or for the purposes of this Part affects any civil proceedings arising under a construction contract, whether under this Part or otherwise, except as provided by subsection (3).
(3) In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal:
(a) must allow for any amount paid to a party to the contract under or for the purposes of this Part in any order or award it makes in those proceedings, and
(b) may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings.
Section 17(2)(a) and “jurisdictional fact”
199 The question which most divided the parties and the interveners in this case was whether s 17(2)(a) of the Security of Payment Act stated a jurisdictional fact, satisfaction of which was essential to the validity of an adjudication application and to the existence of the power to adjudicate.
The parties’ and interveners’ submissions
200 Mr DeBuse of counsel, for Chase, submitted that the giving of notice in time pursuant to s 17(2)(a) (or, as he put it, “the existence of a valid notice pursuant to s 17(2)”) was a jurisdictional fact, as was the existence of a valid adjudication determination. He submitted that the adjudicator had no authority to decide the dispute, because there was no valid s 17(2) notice: “a jurisdictional error”.
201 Mr DeBuse referred to the way in which the Act operated, “rebalancing... the risks of construction” and interfering seriously with freedom of contract. In that context, he submitted, s 17 operated as a limitation on the right to seek adjudication, but in a context where there was no permanent loss of rights (because, except in the case of a final payment claim, the amount claimed could be reclaimed in a subsequent month: s 13(6)).
202 Mr Hodgkinson of Senior Counsel, who appeared with Mr Bolger of counsel for Hamo, submitted that s 17(2)(a) was not a jurisdictional requirement. He adopted the submissions for the Attorney General of New South Wales, who intervened pursuant to s 78A of the Judiciary Act of 1903 (Cth).
203 The Solicitor General, who appeared with Mr Kirk of counsel for the Attorney General, submitted that, on balance, s 17(2) did not specify a jurisdictional fact. He accepted that the language was “clear and unqualified”, that the question of satisfaction of the requirement was unlikely to be difficult, and that parties to construction contracts might want to order their affairs on the basis of non-satisfaction of the requirement, and the consequent inability to make an adjudication application. However, he submitted, there were countervailing considerations. The requirement to give notice within 20 business days was procedural, and not an essential ingredient of the statutory scheme or of justice between the parties. In particular, the right of the respondent to provide a payment schedule arose not by reference to the 20 business days but, instead, by reference to the date of service of the notification (s 17(2)(b)).
204 The Solicitor General submitted, further, that to enable a challenge on the basis of non-compliance with s 17(2)(a) would be inconsistent with the statutory scheme of speedy but interim resolution of progress claims, and might result in inconvenience to the parties, “in circumstances where a mistake may readily be made”.
205 Finally, the Solicitor General pointed to what he said was the analogous case of s 22(2)(d), where it has been held that the question of whether or not submissions had been “duly made” is a matter for the adjudicator, not for the court (see, for example, John Holland Pty Ltd v Roads and Traffic Authority of New South Wales (2007) 23 BCL 183 at 220[63], 221 [71]).
206 Mr Inatey of Senior Counsel, who appeared with Mr Robertson of counsel for the intervener St Hilliers Contracting Pty Ltd, did not enter on this aspect of the debate. Nor did Mr Ashhurst of Senior Counsel, who appeared for the intervener Dualcorp Civil Pty Ltd.
Decision
207 The Security of Payment Act operates to alter, in a fundamental way, the incidence of the risk of insolvency during the life of a construction contract. As Keane JA said, of the not dissimilar Queensland statute, the Building and Construction Industry Payments Act 2004 (Qld), in RJ Neller Building P/L v Ainsworth [2008] QCA 397 at [40] , the statute “seeks to preserve the cash flow to a builder notwithstanding the risk that the builder might ultimately be required to refund the cash in circumstances where the builder’s... inability to repay could be expected to eventuate”. It followed, his Honour said, that the risk of inability to repay, in the event of successful action by the other party, must be regarded as one that the legislature has assigned to that other party. The same is true of the regime established by the Security of Payment Act .
208 Further, the Security of Payment Act operates in a way that has been described as “rough and ready” or, less kindly, as “Draconian”. It imposes a mandatory regime regardless of the parties’ contract: s 34. It provides extremely abbreviated time frames for the exchange of payment claims, payment schedules, adjudication applications and adjudication responses. It provides a very limited time for adjudicators to make their decisions on what, experience shows, are often extremely complex claims involving very substantial volumes of documents (see, for example, my decision in Laing O’Rourke Australia Construction v H&M Engineering and Construction [2010] NSWSC 818 at [8] ).
209 The Security of Payment Act gives very valuable, and commercially important, advantages to builders and subcontractors. At each stage of the regime for enforcement of the statutory right to progress payments, the Security of Payment Act lays down clear specifications of time and other requirements to be observed. It is not difficult to understand that the availability of those rights should depend on strict observance of the statutory requirements that are involved in their creation.
210 Further, not only are adjudication determinations capable of transmutation into judgments of a court of competent jurisdiction (s 25), they create issue estoppels ( Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 ; (2009) 74 NSWLR 190). Why should a respondent to a payment claim be put at risk of suffering a judgment, and of being estopped from contesting that judgment in relation to later payment claims or adjudication applications, where the claimant has not complied with a temporal limitation for the making of the adjudication application on which the determination that gives rise to the judgment and the estoppel is founded?
211 The language of s 17(2) is clear. Where there has been no payment schedule and no payment, an adjudication application “cannot be made unless” the requisite notice is given within the specified time. The words “cannot be made” suggest strongly that, in the absence of notice, there is no right to make an application. On the submissions for Hamo, that statutory prohibition may be disregarded: “an adjudication application... cannot be made... but, if made, can be considered and dealt with”. That is an unusual construction, particularly taking into account the mandatory provisions of s 17(6), to which I refer in the next paragraph.
212 What is made is an application for adjudication of a payment claim (s 17(1)). As s 4 points out, it is that application that is an “adjudication application”. It is an adjudication application, so defined, that is made to an authorised nominating authority (s 17(3)(b)) and referred by that authority to an adjudicator (s17(6)). The authorised nominating authority has no discretion about referring the application to an adjudicator, even if (for example) it is plain on the face of the application that the claimant has not complied with s 17(2)(a). On the contrary, “[i]t is the duty of the authorised nominating authority” to do so “as soon as practicable”. If that referral is accepted by the adjudicator (s 19(1)), “the adjudicator is taken to have been appointed to determine the application” (s 19(2)). Thereafter, the adjudicator is required to “determine” that application, by determining the matters set out in s 22(1)).
213 On the approach for which Hamo contends, that statutory mechanism is set in operation even though the adjudication application is one, the making of which is expressly prohibited by the words of s 17(2)). It is difficult to understand why the relevant provisions of the Security of Payment Act should be interpreted, where there has been neither provision of a payment schedule nor payment of the claimed amount:
(1) to prohibit the making of an adjudication application where notice is not given in accordance with s 17(2)(a); but
(2) nonetheless, to require an adjudication application made in defiance of that prohibition to proceed to determination pursuant to s 22 and, perhaps, a judgment pursuant to s 25.
214 To construe the legislation as Hamo and the Attorney General submit should be done exposes a respondent in the position of Chase to substantial adverse consequences in the event that a claimant chooses to ignore s 17(2)(a), and an adjudicator proceeds regardless to make a determination in the claimant’s favour.
215 On the other hand, the construction for which Chase contends does not have equivalent adverse consequences for a claimant. Where work is continuing under the construction contract, the claimant may include the amount of the payment claim in its next payment claim (see s 13(6)). Most construction contracts provide for monthly progress payments (and this is the default position established by s 8(2)(b) of the Security of Payment Act where the contract is silent). The reality is that, by the time the statutory timetable embodied in ss 11, 13 and 17 has been worked through, another reference date will have arisen and the fresh payment claim may be made. The right to payment of the claimed amount is not lost if s 17(2)(a) is given effect. At most, enjoyment of the fruits of that right is postponed, in effect for a month. That is not too high a price for claimants to pay, to have access to the benefits that the Security of Payment Act gives them.
216 Even if the claim is a final payment claim, and further payment claims cannot be made because of s 13(4)(b), the claimant is not without remedy. A claimant who has received neither payment schedule nor payment of the claimed amount is given alternative rights. It may sue for a debt (s 15(2)(a)(i)). If it does so, it has the benefit of the limitations, on the respondent, set out in s 15(4)(b). Alternatively, the claimant may make an adjudication application (s 15(2)(a)(ii)). The second, or alternative, right may be lost for non-compliance with s 17(2)(a). But that does not mean that the first is also lost. It follows that, even if (which I assume without deciding) s 15(2)(a) contains some notion of inconsistent alternative remedies, and thus of election, there can be no prohibition on suing to recover the claimed amount as a debt where an adjudication has not been made (because it cannot be made).
217 Put shortly, even if the door to adjudication is closed, the door to judgment remains open; and the ability of the respondent to bar access through that door to judgment is limited.
218 To my mind, the weight of those factors favours the conclusion that the requirement of s 17(2)(a) are jurisdictional, in the sense that the giving of notice within the requisite period is a condition that must be satisfied for a valid application to be made pursuant to s 17(1). Considerations of inconvenience and departure from the statutory scheme do not tell against that conclusion. There are a number of reasons why this is so:
(1) satisfaction of the condition is a matter peculiarly within the control of the claimant. A requirement to give notice of intention to proceed to adjudication within 20 business days is hardly onerous, particularly in the context of other requirements as to time in the Security of Payment Act .
(2) It is unlikely that investigation, assessment and decision on the s 17(2)(a) jurisdictional fact will be complex. Nor is it something that is likely to involve the particular expertise of adjudicators (beyond an ability to count) or difficult questions of construction.
(3) The inconvenience resulting from any challenge (a matter to which attention was directed in the submissions for the Attorney General) is but one side of the coin; on the other side, there is the inconvenience to the respondent of being subjected to adjudication applications even in circumstances where their making is forbidden by the legislation.
(4) The departure from the statutory scheme of speedy but interim resolution is scarcely substantial; on the contrary, as I have shown, the right to the claimed amount remains alive and may be enforced, either through a subsequent payment claim or by an action for debt in which the ability to defend is severely limited.
219 As I have said, one of the consequences of the regime established by the Security of Payment Act is to reallocate, at least on an interim basis, the risk of insolvency as between principal and contractor (or as between contractor and subcontractor). That is a serious matter, as is the attendant overriding of contractual rights, and infringement on freedom of contract. In my view, where there is a statutory condition laid down for initiation of a fundamental part of that process, attention to those consequences suggests that the condition should be regarded as jurisdictional.
220 I do not regard the analogy of s 22(2)(d) as providing any assistance. Whether or not a submission is “duly made” depends on an assessment of the issues raised by a payment claim and payment schedule, and a value judgment as to whether a particular submission falls within the ambit of the payment claim or payment schedule, properly understood. That is, specifically, the sort of matter where expert evaluation, and an understanding of the way in which the parties have dealt with each other, will be of assistance. By contrast, the fixing of a due date for payment of a progress payment is a mechanical process carried out in accordance with the relevant provisions of the contract or the Security of Payment Act (s 11(1)). The task of counting of 20 business days from that due date requires no more than a calendar and, perhaps, a pencil, used with an appreciation of the definition of “business day” in s 4.
221 Nor does it seem to me to be significant that the respondent’s opportunity to provide a payment schedule (s 17(2)(d)) is conditioned on receipt of notice, not on expiry of the 20 business days referred to in para (a). So far from being intended to suggest that the notice requirement in para (a) is not essential, or jurisdictional, para (b) is directed to shortening, as much as possible, the time within which the respondent can provide a payment schedule. That is why the time for the provision of the payment schedule runs from receipt of the notice, not from the expiry of the 20 days. It does not follow that the opportunity is triggered even by a notice given out of time. On the contrary, I think, the reference in para (b) to “the claimant’s notice” means “the claimant’s notice given in accordance with para (a)”. In other words, it is only where the claimant’s notice is served in accordance with para (a) that there is an opportunity (or for that matter a need) to provide a payment schedule.
222 For those reasons, I conclude that, in circumstances to which s 17(1)(b) of the Security of Payment Act applies, the requirement set out in s 17(2)(a) is a condition of the right to make an adjudication application, and satisfaction of that condition is an element of the jurisdiction of the adjudicator – the power of the adjudicator to determine the application in accordance with s 22(1). Put shortly, the giving of notice in time is a jurisdictional fact.
223 This approach is supported by the reasoning of Basten JA in Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [43] to [47], dealing with s 13(2) of the Security of Payment Act . His Honour pointed out at [44] that “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, his Honour said at [45], there were three reasons for treating satisfaction of s 13(2) “as properly dependent upon the satisfaction or opinion of the adjudicator”. Those reasons were:
(1) evaluation of the issues might require the special experience or qualifications of adjudicators, and might involve a process of evaluation;
(2) section 13(2) set out a procedural step in the claim process, rather than an external criterion of validity; and
(3) the construction was consistent with the overall objects of the Security of Payment Act , in relation to the speedy and effective resolution of disputes in relation to payment claims.
224 The factors that suggested to Basten JA that satisfaction of s 13(2) should depend on the opinion of the adjudicator do not apply to s 17(2)(a), for the reasons that I have given at [220] above.
225 The approach to construction which regards the time requirements of s 17(2)(a) as essential, and therefore jurisdictional, is consistent with the approach taken in at least one other statutory environment. (I accept, of course, that analogies drawn from one statute for the purpose of construing another are, at best, of limited assistance.) Section 459E of the former Corporations Law provided for the service of statutory demands. Failure by the company to comply with a demand within the time limited for compliance could found an application that the company be wound up in insolvency. There was provision to apply for an order setting aside a demand. Section 459G(2) stated that an application for an order setting aside a statutory demand “may only be made within 21 days after the demand is so served”.
226 In David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 , the High Court held that the time limit set out in s 459G(2) was an essential condition of the right to apply to set aside a statutory demand. Gummow J (with whom Brennan CJ and Dawson, Gaudron and McHugh JJ agreed) said at 276 that the temporal requirement in s 459(2) operated “to define the jurisdiction of the court in respect of an application to set aside a statutory demand”. That was so, his Honour said at 277, because it was an integral part of the right created by s 459G – “a condition of the gift” – that it be exercised by application made within the specified time.
227 Further, as His Honour pointed out, s 459G appeared within the (then) new Part 5.4 of the Law, which was, as his Honour had said at 270, “a legislative scheme for quick resolution of the issue of solvency and the determination of whether the company should be wound up without the interposition of disputes about debts, unless they are raised promptly”.
228 It could be said, of the Security of Payment Act , that it is a legislative scheme for quick resolution of the question of entitlement to a progress payment and the determination, in the absence of agreement, as to what should be paid. It could also be said that it is “a condition of the gift” of the right to make an adjudication application pursuant to s 17(1)(b), that the right be exercised in the manner specified by s 17(2)(a).
229 I do not think that this conclusion is necessarily inconsistent with the reasoning of Hodgson JA in Brodyn . I agree with what Spigelman CJ has said at [25] and [26] above. In Brodyn , Hodgson JA was concerned to inquire on what basis, other than the grant of certiorari for jurisdictional error of law, the Court could intervene in the determinations of adjudicators that lacked some essential foundation for validity. As Spigelman CJ has indicated at [27] above, it may be that Hodgson JA saw a distinction between a jurisdictional condition, or jurisdictional fact, on the one hand, and a basic and essential condition of validity on the other.
230 Because Hodgson JA was not disposed to consider certiorari as an available remedy, he constructed a taxonomy of basic and essential conditions for validity, absence of which could give rise to declaratory and (subject to any relevant discretionary considerations) injunctive relief. It does not follow that, in looking at the question of jurisdiction (in the sense of authority to decide), s 17(2)(a) may not be regarded as jurisdictional, or as establishing a fact to be proved as a condition of the exercise of jurisdiction. It is implicit in his Honour’s analysis that the basic and essential conditions of validity were fewer, or narrower, than jurisdictional criteria in the Gedeon sense.
231 I accept that the Court should be slow to take an approach to the construction of the Security of Payment Act , and the review of adjudicators’ determinations, that might have an adverse impact on parties’ exercise of rights under the Act, including the right to stop work. I am conscious also that, to the extent that the grounds of review are expanded, there is, as Hodgson JA put it in Brodyn at 440–441[51], the risk that s 27 could operate as a trap. However, on balance, I do not think that the recognition of s 17(2)(a) as imposing a jurisdictional condition – or specifying a jurisdictional fact – will render significantly less attractive the right to suspend work. There are a number of reasons why this is so.
232 First, even on the approach to review dictated by Brodyn , there is a risk that a contractor or subcontractor who suspends work in reliance on a determination in its favour (s 24(1)(b)) may find, if the determination is declared to be void, that it has walked into a trap. A recognition that the grounds of review include failure to comply with the jurisdictional requirements of s 17(2)(a) does not seem to me to be something that will significantly increase the risk of entrapment.
233 Second, the question of compliance with s 17(2)(a) is both relatively simple in a factual sense and something peculiarly within the knowledge of the claimant. It is unlikely that the trap will be sprung by some esoteric piece of factual or legal analysis which has the result that a determination is found to be void.
234 Third, a claimant who wishes to suspend work under s 24(1)(b) must serve notice of intention to do so, and must allow at least two business days to pass, from the date of service, before suspending work (s 27(1)). That is sufficient time for the respondent to assert (if it wishes to do so) that the determination is void for want of satisfaction of a jurisdictional fact. If the respondent does so, a claimant who proceeds nonetheless to suspend work does so at its own risk. If the respondent does not do so, and the claimant proceeds to suspend work, the respondent may find, in any subsequent proceedings to have the determination quashed or declared void, that discretionary considerations will tell against the grant of relief.
235 Fourth, and following on from the third point, if the Court proceeds by way of grant of injunctive relief, it may do so on condition. Where a claimant has given notice and the respondent has not raised the jurisdictional point before the expiry of that notice, the Court, if otherwise minded to grant relief, would be able to mould conditions to protect the claimant.
236 Fifth, experience shows that in any event respondents who wish to contend that a determination is void will move quickly to assert the position, and to prevent the issue of an adjudication certificate and the filing of that certificate as a judgment for debt. In a practical sense, I think, the Court could infer that it is unlikely that a claimant might proceed to suspension of work without knowing that the respondent asserts that the determination is void, and intends to seek relief accordingly.
237 Sixth, and obviously enough, where the payment claim was a final payment claim (i.e., one made after work under the construction contract has ceased), there is no work to suspend and no trap to be set.
The adjudicator’s decision on the jurisdictional fact does not bind the court
238 For the reasons that Basten JA gives at [97] to [101] above, the power to determine compliance with s 17(2)(a) is not given to the adjudicator. The Court is not bound by his finding that the requirements of s 17(2)(a) had been met.
239 In this case, the ultimate jurisdictional fact, as found by the adjudicator, was that set out in para 24 of what it remains convenient to call his determination. (For the reasons that I have given at [192] above, the actual “determination” is in fact the decision on the three matters referred to in s 22(1), not the reasons, as required by s 22(3)(b), for that decision.) That finding was, in relation to the notice under s 17(2)(a), that it had been served within time.
240 The adjudicator’s finding was not correct. It is clear, from what I have said at [115] and [116] above, that no notice was given in accordance with s 17(2)(a).
241 Alternatively, even if satisfaction of the existence of the fact were a matter entrusted to the adjudicator for determination, the Court does not inquire into the existence of the fact itself but, rather, looks at the adjudicator’s reasoning.
242 The adjudicator found that:
(1) the payment claim was served on 22 December 2009 (para 13);
(2) the due date for payment was 6 January 2010 (para 31); and
(3) notice under s 17(2)(a) was served on 11 February 2010 (para 19).
243 On the basis of those findings, it was not possible rationally to conclude that the notice under s 17(2)(a) had been served in time. That ultimate finding had no basis in the evidence (in so far as that is reflected in the adjudicator’s findings of primary fact to which I have just referred). On the contrary, the ultimate finding is in contradiction to those findings of primary fact.
244 On either approach, therefore, the Court is not bound by the adjudicator’s finding. It follows that the erroneous finding as to satisfaction of the jurisdictional fact cannot bind the Court.
Are adjudicators tribunals exercising governmental powers?
245 I considered this question in Musico. Palmer J considered it in Multiplex Constructions. As I have noted, Hodgson JA referred to this question in Brodyn at 438[46] and 443[58], but expressed no concluded view. The matter has been looked at more recently in Victoria, in connection with the not dissimilar regime established by the Building and Construction Industry Security of Payment Act 2002 (Vic), by Vickery J in Grocon Constructors v Planit Cocciardi Joint Venture (No.2) [2009] VSC 426.
The parties’ and interveners’ submissions
246 Mr DeBuse submitted, in reliance on the first instance decisions to which I have just referred, that adjudicators exercise governmental power to determine legal rights, and are therefore amenable to certiorari.
247 Mr Hodgkinson did not directly address this issue, although his submissions appeared to proceed on the basis that in principle certiorari might lie against adjudicators (because he submitted that Brodyn in effect should be read, in the light of Kirk , as holding that judicial review is available for jurisdictional error of law, but that jurisdictional error should be limited to the basic and essential requirements, and other matters, identified in Brodyn ) .
248 Nor did the Solicitor General’s submissions directly address this issue. Again, however, they appear to accept that the determinations of adjudicators are amenable to certiorari (again, because they appear to accept that certiorari may be available to quash determinations infected by jurisdictional error).
249 Mr Inatey submitted that adjudicators were to be considered as tribunals exercising governmental powers. He relied on the reasoning of Vickery J in Grocon Constructors.
250 Mr Ashhurst’s submissions did not address this issue.
Decision
251 The starting point, in terms of analysis rather than time, is the decision in Craig at 174–175. The High Court there said, of the prerogative writ of certiorari, that it went only to inferior courts “or to certain tribunals exercising governmental powers”. Thus, their Honours said, an order in the nature of certiorari (i.e., in this State, an order pursuant to s 69 of the Supreme Court Act ) “is properly made only if it be directed to such a court or tribunal”.
252 As to “tribunals exercising governmental powers”, the Court referred to three decisions:
(1) R v Electricity Commissioners ; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 ;
(2) Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40 ; and
(3) O’Reilly v Mackman [1983] UKHL 1 ; [1983] 2 AC 237
253 In the first of those cases, Atkin LJ said at 205:
Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs [of prohibition and certiorari].
254 In Ridge , Lord Reid discussed the test propounded by Atkin LJ at 74 to 79, and concluded that a body could be amenable to prohibition or certiorari even if it did not have a duty to act judicially. That was confirmed in O’Reilly by Lord Diplock at 279. His Lordship spoke of statutory tribunals or other bodies of persons “having legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals”. He said of such tribunals or bodies:
Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness...
255 In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 , Lord Diplock said at 408 that for a decision to be amenable to judicial review, it must have consequences which affect some person, or body of persons, other than the decision-maker. It could do so either by altering the rights or obligations of people, enforceable by or against them in private law, or by depriving them of some benefit or advantage.
256 It follows that the test to determine whether a tribunal is one exercising governmental powers (to use the words of the High Court in Craig at 174–175), is whether it has legal authority – authority conferred by legislation – to determine, or affect, the common law or statutory rights or obligations of individuals or groups of individuals. I agree with the conclusion, to that effect, expressed by Vickery J in Grocon Constructors at [48].
257 Further, in my view, adjudicators are vested with legislative authority to decide legal rights and obligations. The following features of the Security of Payment Act support that conclusion:
(1) although the right to a progress payment may be contractual, the enforcement of that right through the process of adjudication is entirely a creature of statute;
(2) Disputes constituted by a payment claim and payment schedule are referred to adjudication. The adjudicator is in effect appointed by acceptance of the reference from an authorised nominating authority. Authorised nominating authorities gain their authority to nominate from appointment by the Minister (s 28(1)). It is the duty of authorised nominating authorities to refer adjudication applications made to them to an eligible adjudicator (s 17(6)).
(3) The power of the adjudicator to determine comes from acceptance of the reference, which is “taken” to constitute appointment, and making a determination of the kind authorised by s 22(1).
(4) The obligation to pay the amount determined by the adjudicator – the adjudicated amount – is imposed by s 23(2).
(5) Non-payment of the adjudicated amount leads to the availability of other remedies, including the issue of an adjudication certificate and suspension of work (s 24(1)).
(6) An adjudication certificate, once issued, may be filed as a judgment for a debt in a court of competent jurisdiction, and becomes enforceable like any other judgment of that court (s 23(1)).
258 In addition, the decisions of adjudicators create issue estoppels within their field of operation, as the decision of this Court in Dualcorp establishes.
259 In short, the Security of Payment Act gives to an adjudicator legal authority to make a binding determination as to an entitlement to a progress payment. The limited finality of that decision, considered in conjunction with the issue estoppels that it creates, has a real and present effect on the legal rights of the claimant and the respondent. The claimant is not entitled to more than the adjudicated amount, and may be estopped from asserting any different entitlement, in respect of the same payment claim, in a subsequent payment claim. The respondent is bound to pay the adjudicated amount, and is estopped from denying liability for it in respect of any subsequent payment claim. All of those consequences follow from, and only from, the Security of Payment Act .
260 I return, for a moment, to the question of whether amenability to prohibition or certiorari requires, among other things, that the decision maker be subject to a duty to act judicially. As I indicated at [254] and [256] above, that does not form part of the test. Spigelman CJ and Basten JA have dealt with this question more fully at [9] to [19] and [82] to [84] respectively above. I agree with their Honours’ analyses.
261 It follows, in my view, that the determinations of adjudicators are amenable to orders in the nature of certiorari.
262 Once that conclusion is accepted, it must follow that there is no basis for denying that, in an appropriate case, the Court may make an order in the nature of certiorari for jurisdictional error of law. There is no express provision in the Security of Payment Act denying the availability of certiorari. (I shall return to s 25(4)(a)(iii)). Nor, in light of the decision in Kirk , should the Security of Payment Act be construed as impliedly prohibiting the grant of certiorari for jurisdictional error of law.
263 Section 25(4)(a)(iii) operates in a very limited area. It applies only where:
(1) an adjudication certificate has been filed as a judgment for a debt in a court of competent jurisdiction; and
(2) the respondent (defendant, judgment debtor) commences proceedings to have that judgment set aside.
264 What may not be “challenged” is “the adjudicator’s determination”. That is the decision on the three elements referred to in s 22(1). If there is no judgment founded on an adjudication certificate then s 25(4)(a)(iii) has no operation, because there is nothing to set aside. Where there is a judgment founded on an adjudication certificate, it has an existence apart from the determination. As Hodgson JA said in Brodyn at 443[61], once the judgment has been given, it is not void, and does not become void, simply because the underlying determination is, or is declared to be, void.
265 An application for certiorari involves an assertion that the determination is void. If it is found to be void, it is void ab initio : it has never been, in law, a determination. Thus, as Hodgson JA pointed out in Brodyn at 437[41], “if the determination was quashed or declared void, reliance on there being no determination to support the judgment would not be to challenge the adjudicator’s adjudication within s 25(4): this wording assumes that there is a determination which is challenged”.
266 A challenge in independent proceedings, seeking relief in the nature of certiorari, is, of necessity, one to be brought in this Court. Even if the judgment had been entered in this Court, the challenge does not need to be brought in the “proceeding” in which that judgment is given. If the challenge succeeds, then the ground for setting aside the judgment is established. As Hodgson JA explained, in the passage just cited, the application to set aside would not involve any challenge to the determination: simply because in law there is not, and never has been, a determination.
First question: should the “determination” be quashed?
267 For the reasons that Basten JA gives at [105], it should not be assumed (as the first question does) that the adjudicator made a “determination... that he could hear and determine” Hamo’s adjudication application. It follows that question 1 should be answered in the way that Basten JA proposes at [108]. However, in circumstances where the substantive merits of the adjudicator’s reasoning as to s 17(2)(a) were fully debated, and bearing in mind the relatively small amount at stake, I would have concluded that this Court should go further, and consider whether or not to grant relief in the nature of certiorari. Since Spigelman CJ and Basten JA hold the view that the matter should be remitted to the Equity Division, I shall not pursue this. I do, however, wish to say something about s 69 and discretion.
268 Relief under s 69(1) of the Supreme Court Act is generally thought to be discretionary. Thus, in Aronson, Dyer and Groves, Judicial Review of Administrative Action (Thomson Reuters, 4 th Edition, 2009), the authors say at [12.155] that “[t]he court usually has a discretion to refuse certiorari and prohibition, even though the grounds have been established”.
269 Until recently, however, it was thought that there was no discretion to refuse prohibition or certiorari for jurisdictional error of law on the face of the record. (The distinction between prohibition and certiorari, and their differing areas of operation, do not need consideration.) See, for example Yirrell v Yirrell [1939] HCA 33 ; (1939) 62 CLR 287 ; Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 ; GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503. It appears, however, that the proposition may not be capable of precise or absolute statement. For example, in Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200 ; (2004) 60 NSWLR 558 , Spigelman CJ said at 591[135] that “an order in the nature of prohibition is discretionary in all cases, but should issue “almost as of right””. His Honour repeated that formulation at 596[158].
270 Two considerations appear to have led Spigelman CJ to the view that prohibition is discretionary in all cases, but should issue “almost as of right” in a plain case of want of jurisdiction. The first was that recent decisions in the High Court had emphasised that the constitutional writ of prohibition is discretionary (see, for example, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82). However, that reasoning is based on considerations arising under s 75(v) of the Constitution . The second basis on which Spigelman CJ relied was s 69 of the Supreme Court Act . But in so far as his Honour relied on s 69 , Mason P (who otherwise agreed with the reasons of Spigelman CJ) joined in the reservation expressed by Handley JA as to s 69. See Mason P at 597[160] and Handley JA at 601[184]. At the latter reference, Handley JA pointed out that, hitherto, s 69 had not been thought to alter the substantive law governing judicial review as it was exercised before the Supreme Court Act came into force.
271 The High Court granted special leave to appeal from the decision of the Court of Appeal in Solution 6 but the appeal was dismissed: Fish v Solution 6 Holdings Limited [2006] HCA 22 ; (2006) 225 CLR 180. The proposition that prohibition lies “almost as of right” for a clear jurisdictional error of law was not discussed.
272 Spigelman CJ returned to the topic in Yim v Industrial Relations Commission of NSW [2007] NSWCA 77. His Honour referred at [74] to the “almost as of right” comment in Solution 6 at [135], but did not elaborate on it.
273 The proposition that there is a discretion, even in the case of jurisdictional error of law, is supported by the judgment of Hope AJA in Director of New South Wales State Lotteries Office v Leonard (CA 285 of 1989, 18 October 1989, unreported; BC8901571). At BC10, Hope AJA (with whom Samuels and Priestley JJA agreed) concluded that the relevant tribunal had acted without jurisdiction and that its decision was invalid, and could be quashed. That left, his Honour said, the question of discretion.
274 Hope AJA said that the grant of relief under s 69 of the Supreme Court Act was governed by the principles that hitherto had governed the issue of prerogative writs: a matter of discretion. He noted that certiorari would lie for denial of natural justice, error of law on the face of the record and excess of jurisdiction. Although, his Honour noted, there had been a distinction between the grant of certiorari in the first two cases and the grant in the last, “even in this [last] case the power to grant the writ was discretionary”. His Honour relied on the decision of Gibbs CJ in the Queen v Ross-Jones [1984] HCA 82 ; (1984) 156 CLR 185 , 193–195 (a passage considered by Spigelman CJ in Solution 6 ). Hope AJA noted that Gibbs CJ was dealing with a matter in the federal or constitutional area, and with prohibition rather than certiorari. Nonetheless, Hope AJA said, what Gibbs CJ had said “is... relevant to the exercise of discretion”.
275 To my mind, the decisions to which I have referred support the proposition that there remains a residual discretion not to grant certiorari (or to make an order in the nature of certiorari under s 69 of the Supreme Court Act ), even in a case of clear jurisdictional error. I have no doubt that, in the ordinary case, an order would be made “almost as of right”. But to state the position thus is not to deny but, rather, to affirm the discretion, in an extraordinary case, not to make the order.
276 In this context, it is instructive to look at the history of the prerogative writs of certiorari and prohibition. In what follows, I draw (without further citation) on Appendix 1 to de Smith, Judicial Review of Administrative Action (Stevens and Sons Limited, Third Edition, 1973), and on the decision of the Appellate Division of the Supreme Court of Ontario in Rex v Titchmarsh (1914) 22 DLR 272 at 278–279.
277 Historically, certiorari commenced as a royal demand for information. The King wished to be “certified” of something, and thus ordered that the necessary information be provided to him. It was not limited to demands for information about proceedings in lower courts or tribunals, but was (at least in the 13 th century) used for administrative purposes as well.
278 The writ of certiorari was thus issued in the King’s name, and attested by his Chief Justice. In form, it required the information to be put before the King in his Court of Kings Bench; reflecting the fact that, at first in fact and later in theory, these and other matters in that Court were heard coram rege ipso : in the presence of the King himself.
279 The prerogative character of the writ of certiorari reflects at least two matters. The first is that it was intended to vindicate some prerogative of the Crown. The second is that, except at the suit of the Crown, the writ was not issued as of course; a subject had to show cause before the writ could be issued.
280 The practice developed very early of using the writ of certiorari to cause the record of an inferior court to be brought before the Court of Kings Bench for examination. If, upon such examination, it was found that the inferior court had acted beyond jurisdiction, that could be corrected. That was done because it was thought to be an affront to and contempt of the Crown that an inferior court (and, later, administrative tribunal) could usurp power by asserting a jurisdiction that it did not have. See, for example, Farquharson v Morgan [1894] 1 QB 552 at 556, where Lord Halsbury said that it was the function of certiorari to enable the Court to “protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction”.
281 The writ of certiorari has been abolished, and the power to grant relief in the nature of certiorari has been confirmed by statute. In those circumstances, it seems to me, the historical reasons that justified the proposition that there was no discretion to withhold certiorari in the case of an evident error of jurisdiction should be left in the history books. For as long as orders of certiorari were made pursuant to a writ, it might have been possible to rely on the form of the writ to assert that there was still a vindication of some prerogative of the Crown. But where there is now a statutory head of power to grant relief in the nature of certiorari by judgment or order, without the need for issue of a writ involving the Crown, discretionary considerations which developed originally from the conception of the writ as vindicating the Crown’s privileges should no longer govern the exercise of the power.
282 It is, I think, considerations of that sort which have led the High Court to recognise (as Spigelman CJ said in Solution 6 ) that the power granted to the High Court by s 75(v) of the Constitution varies to some extent from the common law power to make an order of certiorari pursuant to a writ.
283 In a sense, discretionary considerations are not relevant in this case because nothing has been put as to why, as a matter of discretion, an order should not be made if, as I have concluded, certiorari is in principle available and a ground for an order in the nature of certiorari has been made out. But it does have some ongoing relevance to the issue, in relation to s 27(3) , discussed at [234] and [235] above. If there were a residual discretion to refuse certiorari even in the case of a clear jurisdictional error of law, then the Court would not be inhibited from availing itself of that discretion in a case where (for example) the respondent had been notified of the claimant’s intention to suspend work, but had refrained from taking any step to impeach the determination until after the claimant had in fact suspended work.
284 Another ground on which the discretion (if it exists) to decline to order certiorari may be exercised is where there are alternative and adequate remedies for the wrong of which complaint is made. Palmer J referred to this in Multiplex at [94]. If there is an alternative remedy, it would be the grant of declaratory and injunctive relief, by analogy with Brodyn . That would be as effective (but no more effective) than certiorari. But it would have precisely the same effect. The possible availability of injunctive relief, for jurisdictional error of law not amounting to breach of one of the basic and essential requirements identified in Brodyn , should not in my view distract the Court from granting certiorari where the grounds for relief of that kind are made out.
285 I have concluded that:
(1) compliance with s 17(2)(a) of the Security of Payment Act is a condition of the right to make an adjudication application pursuant to s 17(1)(b), and thus of the power of an adjudicator to determine that application;
(2) the adjudicator’s conclusion that the requirements of s 17(2)(a) had been satisfied in this case was plainly wrong, both on the facts found in this Court and (if relevant) the findings of fact made by the adjudicator;
(3) there was no valid adjudication application, and the adjudicator had no jurisdiction to make a determination;
(4) the Court may, and in an appropriate case should, grant certiorari to quash a determination that is vitiated by jurisdictional error; and
(5) the decisions of adjudicators are amenable to relief in the nature of certiorari for jurisdictional error of law.
286 Those conclusions suggest that an order should be made quashing the determination, unless there is some discretionary reason why this should not be done
Second and third questions: the impact of the reasoning in Kirk on the reasoning in Brodyn ; the proper construction of the Security of Payment Act
287 I agree that the second and third questions should be answered in the way that Basten JA proposes at [108]. I agree with his Honour’s reasons for those answers, and also (subject to what I have said at [179] to [181] above) with the reasons given by Spigelman CJ.
Costs
288 In substance, Chase has succeeded on the questions that were removed into, and have been decided by, this Court. Whether or not it will follow from those answers that Chase is entitled to final relief, as sought in its amended summons, is yet to be decided. For those reasons, as between Chase and Hamo the costs in this Court should be Chase’s costs in the proceedings, but otherwise there should be no order as to costs. I propose costs orders accordingly.
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LAST UPDATED:
24 September 2010