[2011] WASCA 217
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION : PERRINEPOD PTY LTD -v- GEORGIOU BUILDING PTY LTD [2011] WASCA 217
CORAM : MARTIN CJ
McLURE P
MURPHY JA
HEARD : 2 MAY 2011
DELIVERED : 13 OCTOBER 2011
FILE NO/S : CACV 98 of 2010
BETWEEN : PERRINEPOD PTY LTD
Appellant
AND
GEORGIOU BUILDING PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE T SHARP (DEPUTY PRESIDENT)
MR T CAREY (MEMBER)
Citation : PERRINEPOD PTY LTD and GEORGIOU BUILDING PTY LTD [2010] WASAT 136
File No : CC 991 of 2010
Catchwords:
Administrative law - 'Jurisdictional facts' - Principles - Whether matters in s 31(2)(a) Construction Contracts Act 2004 (WA) are 'jurisdictional facts'
Administrative law - Whether adjudicator's exercise of powers under s 31(2) Construction Contracts Act 2004 (WA) amenable to prerogative writs of prohibition and certiorari - Construction of privative clause Building and construction - Security of payment legislation - Application for review to State Administrative Tribunal pursuant to s 46(1) Construction Contracts Act 2004 (WA) - Construction of s 31 and s 46 - Whether review available where an adjudicator refuses to dismiss an application for adjudication under s 31(2)(a)
Legislation:
Construction Contracts Act 2004 (WA), s 31(2), s 46(1), s 46(3)
State Administrative Tribunal Act 2004 (WA), s 105(1)
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S G Leslie
Respondent : Mr S K Dharmananda SC
Solicitors:
Appellant : Metaxas & Hager
Respondent : Tottle Partners
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456
Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750
Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640
Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
O'Toole v Charles David Pty Ltd [1990] HCA 44; (1991) 171 CLR 232
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369
Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32
Plaintiff S157/2000 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6; (1979) 143 CLR 190
R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80
Thompson v Goold & Co [1910] AC 409
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Yates v The State of Western Australia [2008] WASCA 144
1 MARTIN CJ : I agree with Murphy JA.
2 McLURE P : I agree with Murphy JA that leave to appeal should be granted and the appeal dismissed. These are my reasons for that conclusion.
3 The question of statutory construction as formulated by the appellant is whether the State Administrative Tribunal (SAT) has jurisdiction under s 46(1) of the Construction Contracts Act 2004 (WA) (the Act) to review 'a decision not to dismiss' an application for adjudication under s 31(2)(a) of the Act.
4 The relevant background material, statutory framework and relevant case law are detailed in the judgment of Murphy JA. For convenience I set out the central provisions of the Act, being s 31 and s 46. Section 31 relevantly provides:
(1) In this section -
prescribed time means -
(a) if the appointed adjudicator is served with a response under section 27(1) - 14 days after the date of the service of the response;
…
(2) An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) –
(a) dismiss the application without making a determination of its merits if -
(i) the contract concerned is not a construction contract;
(ii) the application has not been prepared and served in accordance with section 26;
(iii) an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or
(iv) satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason;
(b) otherwise, determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment, or to return any security and, if so, determine -
(i) the amount to be paid or returned and any interest payable on it under section 33; and
(ii) the date on or before which the amount is to be paid, or the security is to be returned, as the case requires.
(3) If an application is not dismissed or determined under subsection (2) within the prescribed time, or any extension of it made under section 32(3)(a), the application is to be taken to have been dismissed when the time has elapsed.
5 The term 'decision' is not defined in the Act. However, 'determination' is defined in s 3 to mean a determination, made on an adjudication under pt 3, of the merits of a payment dispute. The expression 'payment dispute' is defined in s 6 and in context means a dispute under a 'construction contract', a term defined in s 3.
6 Section 46 provides:
(1) A person who is aggrieved by a decision made under section 31(2)(a) may apply to the State Administrative Tribunal for a review of the decision.
(2) If, on a review, a decision made under section 31(2)(a) is set aside and, under the State Administrative Tribunal Act 2004 section 29(3)(c)(i) or (ii), is reversed the adjudicator is to make a determination under section 31(2)(b) within 14 days after the date on which the decision under section 31(2)(a) was reversed or any extension of that time consented to by the parties.
(3) Except as provided by subsection (1) a decision or determination of an adjudicator on an adjudication cannot be appealed or reviewed
7 The following contextual matters of construction are not in dispute. First, there is no SAT review (or any appeal) from a decision or determination of an adjudicator except as provided in s 46(1) of the Act. A review by SAT involves a rehearing de novo on the merits: State Administration Tribunal Act 2004 (WA), s 27. Secondly, there is no SAT review of a determination of an adjudication under s 31(2)(b) of the Act. Thirdly, s 46(3) does not exclude judicial review of a decision or determination of an adjudicator made under s 31(2)(a) or (b) of the Act. Fourthly, s 36 expressly obliges an adjudicator to give reasons for a determination made under s 31(2)(b) of the Act. Fifthly, s 37 expressly obliges an adjudicator to give reasons for a decision to dismiss an application for adjudication under s 31(2)(a) of the Act. Sixthly, there is no express statutory requirement that an adjudicator provide reasons for not dismissing an application under s 31(2)(a) of the Act.
8 I am satisfied as to the correctness of each of these propositions. It is only necessary to comment on propositions 3 and 6. As to proposition 3, the text of s 46(3) (no express reference to judicial review) and its immediate statutory context (in a section relating to SAT review) together with the well-known principles of statutory construction applying to privative clauses (see Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531) compels the conclusion.
9 Proposition 6 is uncontentious. However, it leaves open the question whether an adjudicator who does not dismiss an application under s 31(2)(a) is obliged to give reasons for the findings/conclusions on the matters in subpars (i) - (iv) of s 31(2)(a) in his or her reasons for determination on the merits. Based on my view of the proper construction of s 31, there is much to be said in favour of an affirmative answer, at least where the matters are in dispute. However, that is a question for another day.
10 Both parties agreed that the matters in s 31(2)(a)(i) - (iv) are jurisdictional facts. The determination of this appeal does not require consideration or determination of the full scope of the expression 'jurisdictional fact'. It is sufficient for present purposes to define 'jurisdictional fact' as a statutory criterion that must be satisfied in order to enliven the statutory power in question. That is, the existence of the power or jurisdiction of the decision-maker is contingent upon the actual existence of the nominated facts or other criteria. For the most recent discussion by the High Court on the topic see Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 [57], [107] - [109].
11 Whether a criterion is a jurisdictional fact is a question of statutory construction. A consequence of characterising a fact as 'jurisdictional' is that it significantly enlarges the scope of judicial review. The court's judicial review power is confined to intervening when a decision-maker has made a jurisdictional error (or there is an error of law on the face of the record). Ordinarily, an error of fact does not give rise to a jurisdictional error and thus is outside the scope of the court's review power. Not so when a fact is jurisdictional. The court must be satisfied that a jurisdictional fact actually (objectively) exists. To satisfy a criterion of the type in s 31(2)(a)(iv), the decision-maker must actually have the requisite state of mind (satisfaction) for which there must exist reasonable grounds.
12 Another consequence (at least for inferior courts, tribunals and administrative decision-makers) is that the non-existence of a jurisdictional fact invalidates any order, determination or other outcome flowing from the exercise of the relevant statutory power. Any purported exercise of the power is invalid (that is, it is void not voidable). This consequence underpinned the historical reluctance of the courts to characterise a statutory criterion as a jurisdictional fact: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369.
13 I turn now to whether the matters in s 31(2)(a)(i) - (iv) are jurisdictional facts and if so, in relation to what power. Section 31 is the primary source of the powers and duties of an adjudicator in relation to an application for adjudication. At the time the adjudicator comes to consider the exercise of the powers and duties in s 31, he or she will have the information to be relied on by the parties in relation to the application, including its merits: s 26(2), s 27(2). The adjudicator must exercise the powers and duties in s 31(2) within the prescribed time (in this case, 14 days after the date of service of the response under s 27 of the Act).
14 The purpose of s 31(2)(a) is to direct both the sequence in which the tasks in pars (a) and (b) are to be addressed and the order to be made if the criteria in s 31(2)(a)(i) - (iv) are not met.
15 In my view, s 31(2) is not an express source of the power to dismiss an application for adjudication. The Act makes no express provision on this subject. However, the existence of a power to dismiss is implicit in s 31 as a whole. An arbitrator would be unable to fulfil his duties and functions under that section without a power to dismiss. The existence of such a power is implicit in the direction to the adjudicator in s 31(2)(a) to dismiss the application before making a determination of the merits. Further, the adjudicator must also have implicit power to dismiss an application for adjudication on its merits under s 31(2)(b) of the Act.
16 In my view the text, immediate context and purpose of s 31(2)(a) drive the conclusion that the matters in subpars (i) - (iv) are intended to be jurisdictional facts which must exist in order to enliven the adjudicator's power to make a determination on the merits under s 31(2)(b). That construction is also consistent with the scheme of the Act as a whole, in particular s 25 and s 26, which overlap in part with the matters in s 31(2)(a)(i) - (iv). It also facilitates the object of an adjudication of a payment dispute under a construction contract, which is that it be determined fairly and as quickly, informally and inexpensively as possible (s 30). For example, timetables cannot be ignored (as is the norm with the procedural rules and orders made by a court) without immutable adverse consequences.
17 Against that background, I now turn to the question of statutory construction for determination in this appeal, namely whether SAT has jurisdiction under s 46(1) to review a decision 'not to dismiss an application' under s 31(2)(a) of the Act. Little attention was given by the parties to the meaning of the word 'decision' in s 46(1). What is a 'decision made under section 31(2)(a)'? In its natural and ordinary meaning in an adjudicative context, a 'decision' means conduct that has a dispositive or at least an operative effect of some kind. See the discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 335 - 339. When viewed in its particular statutory context in s 46(1) and s 31(2)(a), the term 'decision' means conduct that has a dispositive effect.
18 An adjudicator must act on his own motion under s 31(2)(a); he is not deciding an interlocutory application made by a party. (The dismissal of an inter partes application would be a decision). The issue to be decided under s 31(2)(a) is whether the application must be dismissed. The only relevant decision of a dispositive kind in s 31(2)(a) is the dismissal of the application for adjudication. A failure or omission to dismiss is not a decision under s 31(2)(a).
19 This construction is consistent with the meaning of the phrase 'decision made under section 31(2)(b)' in s 36. It is also consistent with s 46(2) of the Act. The natural and ordinary meaning of s 46(2) is that the reversal of a decision under s 31(2)(a) will necessarily require the adjudicator to make a determination on the merits under s 31(2)(b). That is not the consequence of a 'decision not to dismiss'.
20 Further, this construction of s 46(1) is not in tension with the conclusion that the criteria in s 31(2)(a)(i) - (iv) are jurisdictional facts which enliven the power to make a determination on the merits. The merits determination can be judicially reviewed for non-compliance with the jurisdictional facts in s 31(2)(a). To confine review by SAT to the dismissal of an application under s 31(2)(a) is consistent with the absence of any SAT review of a determination under s 31(2)(b) of the Act. As the decisions under both pars (a) and (b) of s 31(2) have to be made on the same material within the same period, there is no practical impairment of the object of adjudication under the Act. Indeed, confining review by SAT to decisions which take the application for adjudication outside the scope of the Act is consistent with the object of the adjudication procedure which remains subject to judicial supervision for jurisdictional and other reviewable errors of law.
21 This is an appeal from a decision of the State Administrative Tribunal (Tribunal). The Tribunal dismissed the appellant's application to the Tribunal for review of an adjudicator's decision under Construction Contracts Act 2004 (WA) (the Act). The adjudicator had determined an application under s 31(2)(b) of the Act, on its merits. The appellant was of the view that the adjudicator ought to have dismissed the application for adjudication, without making a determination on the merits, on the ground that the matter was too complex: s 31(2)(a)(iv). The appellant sought a review under s 46(1) of the Act. The Tribunal concluded that it was not open, in those circumstances, for the appellant to seek a review pursuant to s 46(1).
22 This appeal raises questions as to the proper construction of s 31 and s 46 of the Act.
23 The appellant requires leave to appeal: s 105(1) State Administrative Tribunal Act 2004 (WA) (SAT Act). An appeal can only be brought on a question of law: s 105(2). Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [18].
24 It was not disputed that the question of the proper construction of the relevant provisions of the Act raises an important question of law. Moreover, this is an appropriate opportunity to resolve an inconsistency that has arisen between the observations of a judge of the general division of this court concerning the proper construction of the Act, and the relevant line of authority in the Tribunal. The respondent did not oppose the grant of leave. Accordingly, the appellant ought to be granted leave to appeal.
25 For the reasons which follow, the appeal should be dismissed.
Background
26 On 16 July 2010, Mr R K F Davis made a determination under pt 3 of the Act that the appellant was liable to pay the respondent $1,575,912.57. The appellant had applied to have the application for adjudication dismissed, without the adjudicator making a determination on the merits, on the basis that it was 'not possible to fairly make a determination because of the complexity of the matter': s 31(2)(a)(iv). The adjudicator declined to dismiss the application and proceeded to make the determination: s 31(2)(b). The appellant then applied to the Tribunal for review under s 46(1) of the Act.
27 On 25 July 2010, the Tribunal directed that the question of whether it has jurisdiction under s 46(1) to hear the application be determined as a preliminary issue. Both parties agreed that the issue for the Tribunal was whether it was within its jurisdiction to review a decision not to dismiss an adjudication application pursuant to s 31(2)(a).
28 The Tribunal dismissed the application for review, following an earlier decision of the tribunal ( Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134) which decided that such decisions are not open to review under s 46(1).
The statutory framework
29 The Act came into operation on 1 January 2005. Its long title states that it is, amongst other things, 'an Act to provide a means for adjudicating payment disputes arising under construction contracts'.
30 The term 'construction contract' is defined in s 3 to mean:
construction contract means a contract or other agreement, whether in writing or not, under which a person (the contractor ) has one or more of these obligations -
(a) to carry out construction work;
(b) to supply to the site where construction work is being carried out any goods that are related to construction work by virtue of section 5(1);
(c) to provide, on or off the site where construction work is being carried out, professional services that are related to the construction work by virtue of section 5(2);
(d) to provide, on the site where construction work is being carried out, on-site services that are related to the construction work by virtue of section 5(3)(b);
31 As noted later, s 48 requires the registration of adjudicators. Section 31, also referred to later, refers to an 'appointed adjudicator'. Section 3 defines an 'appointed judicator' as: appointed adjudicator , in relation to a payment dispute, means the registered adjudicator who, having been appointed under Part 3 to adjudicate the dispute, has been served with the application for adjudication;
32 Section 6 describes when a 'payment dispute' arises for the purposes of the Act:
6. Payment dispute
For the purposes of this Act, a payment dispute arises if –
(a) by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed;
(b) by the time when any money retained by a party under the contract is due to be paid under the contract, the money has not been paid; or
(c) by the time when any security held by a party under the contract is due to be returned under the contract, the security has not been returned.
33 By s 7, the Act applies to construction contracts entered into after the Act came into operation on 1 January 2005.
34 Part 2 deals with the content of construction contracts. Division 1 of pt 2 prohibits provisions of certain kinds in construction contracts. Division 2 deals with the statutory implication into construction contracts of various provisions in certain circumstances.
35 Part 3 is entitled 'adjudication of disputes' and contains the provisions central to this appeal. Division 2 deals with the commencement of adjudication. By s 25, if a payment dispute arises, subject to a small number of exceptions, any party to the construction contract may apply to have the dispute adjudicated.
36 Section 26 sets out the application process:
26. Applying for adjudication
(1) To apply to have a payment dispute adjudicated, a party to the contract, within 28 days after the dispute arises or, if applicable, within the period provided for by section 37(2)(b), must –
(a) prepare a written application for adjudication;
(b) serve it on each other party to the contract;
(c) serve it -
(i) if the parties to the contract have appointed a registered adjudicator and that adjudicator consents, on the adjudicator;
(ii) if the parties to the contract have appointed a prescribed appointor, on that appointor;
(iii) otherwise, on a prescribed appointor chosen by the party;
and
(d) provide any deposit or security for the costs of the adjudication that the adjudicator or the prescribed appointor requires under section 44(8) or (9).
(2) The application –
(a) must be prepared in accordance with, and contain the information prescribed by, the regulations;
(b) must set out the details of, or have attached to it -
(i) the construction contract involved or relevant extracts of it; and
(ii) any payment claim that has given rise to the payment dispute;
and
(c) must set out or have attached to it all the information, documentation and submissions on which the party making it relies in the adjudication.
(3) A prescribed appointor that is served with an application for adjudication made under subsection (1) must comply with section 28.
37 By s 27, the respondent to the application must serve its response within 14 days of being served with the application. Section 28 provides a process for the appointment of an adjudicator in the absence of agreement between the parties.
38 Division 3 is headed 'The adjudication process'. Division 3 comprises s 30 - s 37. Section 30 provides that the object of the adjudication process is to determine the dispute fairly and as quickly, informally and inexpensively as possible.
39 Section 31 provides for the functions of the adjudicator, and is one of the provisions central to the issue in this appeal. Section 31 prescribes a short time frame (14 days) within which an adjudicator is required to make a determination. That time frame can only be varied with the consent of the parties: s 31(2), s 32(3)(a).
40 Section 31(2) provides that an appointed adjudicator must dismiss the adjudication application in certain circumstances without making a determination on the merits, otherwise, if none of the circumstances for dismissal apply, he or she must proceed to make a determination. Section 31(2) is in the following terms:
(2) An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) -
(a) dismiss the application without making a determination of its merits if -
(i) the contract concerned is not a construction contract;
(ii) the application has not been prepared and served in accordance with section 26;
(iii) an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or
(iv) satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason;
(b) otherwise, determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment, or to return any security and, if so, determine –
(i) the amount to be paid or returned and any interest payable on it under section 33; and
(ii) the date on or before which the amount is to be paid, or the security is to be returned, as the case requires.
41 By s 31(3), if an application is not dismissed or determined within the prescribed time, or any extension of time, then the application is taken to have been dismissed when the time has elapsed.
42 Section 32 is concerned with matters of procedure. The section provides, amongst other things, that appointed adjudicators must act informally; are not bound by the rules of evidence and may inform themselves as they see fit; may request further submissions or information from the parties; and may, unless all parties object, inspect any work or thing to which the payment dispute relates, or arrange testing or expert investigation. Insofar as the practice and procedure of adjudications is not regulated by pt 3 or the regulations, the appointed adjudicator may determine his or her own procedure: s 32(6).
43 Section 33 provides that if an appointed adjudicator 'determines' that a party to a payment dispute is liable to make a payment, he or she may also 'determine' that interest is to be paid up to the date of determination.
44 If an appointed adjudicator either dismisses an application for adjudication under s 31(2)(a), or makes a determination under s 31(2)(b), he or she must provide the parties with written reasons for so doing: s 36 - s 37.
45 Division 4 is headed 'Effect of determinations' and comprises s 38 - s 41. Section 38 provides that an appointed adjudicator's determination is binding on the parties to the relevant construction contract. By s 39, a party liable to pay an amount under a determination must do so on or before the date therein specified. Section 40 provides, in effect, that where an appointed adjudicator determines a payment dispute concerning a claim by a contractor for a progress payment, and the principal has paid the amount determined, the payment is to be taken as an advance towards the total amount payable under the contract by the contractor to the principal. By s 41, determinations made by the adjudicator of a payment dispute are final and cannot be subsequently amended or cancelled without the consent of the parties, and the parties are not permitted subsequently to apply for an adjudication of the dispute.
However, accidental slips, omissions and the like are able to be amended: s 41(2).
46 Division 5, comprising s 42 and s 43 of the Act, deals with the enforcement of determinations. Section 42 provides, in effect, for non-curial 'self-help'. By s 42, if a determination requires a principal to pay the contractor an amount, and the principal does not pay, the contractor may suspend the performance of its contractual obligations pending payment, without becoming liable for any loss or damage suffered by the principal or any person claiming through the principal, and retain its rights under the contract. Section 43, on the other hand, provides for curial enforcement. By s 43, upon obtaining the court's leave, determinations may be enforced as a judgment or order of the court.
47 Division 6, comprising s 44 - s 46, is entitled 'General'. Section 44 deals with costs of adjudications and provides, amongst other things, that adjudicators are entitled to be paid if they either dismiss an adjudication application, or make a determination, within the prescribed time in s 31(2).
48 By s 45, an adjudication under pt 3 of the Act does not prevent the parties from instituting proceedings before an arbitrator or other person, or a court or other body, and the adjudication is to proceed despite the institution of such proceedings unless all of the parties agree, in writing, to discontinue the adjudication. By s 45(3), evidence of anything said or done in an adjudication is not admissible before an arbitrator or other person or court, except for the purposes of an application under s 29(3) (being an application to the Tribunal to disqualify an appointed adjudicator), or an 'appeal' under s 46 (discussed below). By s 45(4), an arbitrator or court or other person dealing with a matter arising under a construction contract must, in making an award or order, allow for any money that has been paid to a party under a determination by an appointed adjudicator, and the arbitrator, court or other person has the power to make orders for restitution of any money so paid, as well as 'any other appropriate orders'.
49 Section 46, which is the other provision central to the issue in this appeal, provides for a limited right of review in the following circumstances:
46. Review, limited right of
(1) A person who is aggrieved by a decision made under section 31(2)(a) may apply to the State Administrative Tribunal for a review of the decision.
(2) If, on a review, a decision made under section 31(2)(a) is set aside and, under the State Administrative Tribunal Act 2004 section 29(3)(c)(i) or (ii), is reversed the adjudicator is to make a determination under section 31(2)(b) within 14 days after the date on which the decision under section 31(2)(a) was reversed or any extension of that time consented to by the parties.
(3) Except as provided by subsection (1) a decision or determination of an adjudicator on an adjudication cannot be appealed or reviewed.
50 Part 4 is headed 'Administration'. It includes s 48 which provides:
Registering adjudicators
(1) An individual is eligible to be a registered adjudicator if he or she has the qualifications and experience prescribed by the regulations.
(2) The Registrar may register an individual as a registered adjudicator -
(a) on the application of an individual; or
(b) on the nomination of a prescribed appointor.
(3) The regulations may prescribe a fee to be paid on making such an application or nomination.
(4) The Registrar must not register an individual as a registered adjudicator unless satisfied that the individual is eligible to be registered.
(5) The Registrar may cancel the registration of an individual as a registered adjudicator if satisfied that the individual -
(a) has ceased to be eligible to be registered;
(b) has misconducted, or is incompetent or unsuitable to conduct, adjudications under Part 3.
(6) The Registrar must keep a register of registered adjudicators and make it available for public inspection at no charge.
(7) A certificate by the Registrar stating that an individual was or was not at a time or in a period, or is or is not, a registered adjudicator is proof of the content of the certificate in the absence of evidence to the contrary.
51 Regulation 9 of the Construction Contracts Regulations 2004 (WA) provides:
Qualifications of registered adjudicators
(1) For the purposes of section 48(1) of the Act, an individual must have the qualifications and experience set out in subregulations (2), (3) and (4) to be eligible to be a registered adjudicator.
(2) The individual must -
(a) have a degree, from a university or other tertiary institution in Australia, in a course listed in the Table to this paragraph, or an equivalent qualification from an overseas university or tertiary institution;
Table
Architecture Building
Engineering Construction
Quantity surveying Law
Building surveying Project management
(b) be eligible for membership of a professional institution listed in the Table to this paragraph;
Table
The Royal Australian Institute of Architects
Institution of Engineers Australia
Australian Institute of Quantity Surveyors
Australian Institute of Building Surveyors
The Australian Institute of Building
The Institute of Arbitrators and Mediators of Australia
Australian Institute of Project Management
or
(c) be a builder registered under the Builders’ Registration Act 1939 .
(3) The individual must have had at least 5 years experience in -
(a) administering construction contracts; or
(b) dispute resolution relating to construction contracts.
(4) The individual must have successfully completed an appropriate training course which qualifies the person for the performance of the functions of an adjudicator under the Act.
(5) For the purposes of subregulation (2)(a), a qualification is equivalent to another if the course of study for the first qualification covers approximately the same matters as does the course of study for the second.
The inconsistent authorities
52 It is convenient, at this point, to consider the cases that express the inconsistent views to which I have referred.
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
53 This case concerned an adjudication determination which required one party, RLJV, to pay the other party, ODG, the sum of $7.3 million. ODG sought the leave of the court pursuant to s 43 of the Act to enforce the determination as a judgment of the court. In response, RLJV applied for a writ of certiorari to quash the determination in part. The challenged portion of the determination related to approximately $4 million out of the total $7.3 million (the $4 million claim).
54 The original adjudication application was made by ODG in February 2008 for an amount which did not include the $4 million claim. However, in March 2008, ODG made further submissions in which the total amount claimed had been increased by $4 million to include the $4 million claim. ODG claimed to have overlooked the $4 million claim when it made the initial application. RLJV objected to the increase in the total sum claimed, however, the adjudicator did not accede to the objection and proceeded to make the determination.
55 In applying for certiorari, RLJV contended that the adjudicator was obliged to dismiss the $4 million claim pursuant to s 31(2)(a)(ii) of the Act for failure to comply with s 26(1), which prescribes time limits for preparation and service of adjudication applications. According to RLJV, the adjudicator's failure to dismiss the application constituted a jurisdictional error, and it sought prerogative relief to quash the determination insofar as it included the $4 million claim.
56 The matter was heard by Beech J. His Honour concluded that there had not been a failure to comply with s 26(1) of the Act and, accordingly, there was no error on the part of the adjudicator in failing to dismiss the application. It was, therefore, not strictly necessary for his Honour to consider whether or not such an error, if made, would constitute a jurisdictional error for which prerogative relief would be available. However, his Honour expressed his conclusions on that matter 'for the sake of completeness'.
57 The judge commenced his analysis by finding, in effect, that, assuming that prerogative relief was available, the test to be applied in order to determine whether an error by an adjudicator is one of jurisdiction, is that which is applicable to inferior courts. His Honour then quoted the passage from the judgment of McLure JA (as her Honour then was) in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181], which outlines five categories of jurisdictional error identified in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 to be applicable to such bodies. His Honour then identified that, for the purposes of the matter before him, the relevant error was the third kind of error referred to by McLure JA, the question being whether the factors in s 31(2)(a) constitute essential prerequisites to the exercise of the adjudicator's power to make a determination on the merits under s 31(2)(b) (reasons [104]).
58 Although the judge concluded that the factors in s 31(2)(a) were essential prerequisites to the making of a determination on the merits under s 31(2)(b) (reasons [120]), his Honour considered that the question of the availability of prerogative relief for errors concerning the existence of those jurisdictional prerequisite facts turned on the proper construction of s 46 of the Act.
59 First, in relation to the scope of the right of review conferred by s 46(1), his Honour said [119] - [120], [126] - [127]:
Plainly, an applicant for adjudication who is aggrieved by a decision to dismiss the application under s 31(2)(a) has a right of review under s 46(1). The question for present purposes is whether a respondent to an adjudication application who unsuccessfully invites dismissal by the adjudicator under s 31(2)(a) is thereby aggrieved by the 'decision' not to dismiss the adjudication application. RLJV and ODG both accepted that s 46(1) applied in these circumstances ... Such a construction of s 46(1) is supported by both its language and by consideration of the scheme of the Act as a whole. An adjudicator who rejects a respondent's submission that the application must be dismissed under s 31(2)(a) may be said to have made a decision to that effect ...
...
In my opinion, there will be a 'decision' under s 31(2)(a) for the purposes
of s 46(1), if the adjudicator:
(a) dismisses the application without making a determination of its merits in reliance on s 31(2)(a); or
(b) rejects a submission of a respondent to an adjudication application that the application should be dismissed under s 31(2)(a).
I note that a contrary conclusion was reached in Diploma Construction Pty Ltd and Esslemont Nominees Pty Ltd [2006] WASAT 350. In that case Senior Member Raymond held that the right of review in s 46(1) was not engaged when an adjudicator found that the adjudication application should not be dismissed. He construed s 46(1) as applying only when there was a dismissal under s 31(2)(a). Neither party in the case before me contended for such a construction. In any event, for the reasons I have given, I have, with respect, come to a different conclusion as to the proper construction of s 46(1).
60 Having considered that s 46(1) affords a right of review to the Tribunal not only where an adjudicator dismisses an application under s 31(2)(a), but also where an adjudicator does not dismiss an application and goes on to make a determination under s 31(2)(b), the judge considered the effect of s 46(3). His Honour concluded that s 46(3), properly construed, read with s 46(1) and the Act as a whole, must be taken to exclude the availability of prerogative relief for errors concerning the existence of the jurisdictional prerequisite facts in s 31(2)(a). His Honour so found on the basis that the Act reveals an intention that the questions in s 31(2)(a) are properly to be determined by the adjudicator and, if necessary, on appeal to the Tribunal, rather than by what his Honour saw as the more protracted process of applying to this court for prerogative relief (see [121] - [122], [128] - [131] of the judge's reasons).
61 The reasons in O'Donnell were published on 6 February 2009.
Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134
62 This matter was heard in the Tribunal before President Chaney and Senior Member Mr C Raymond on 18 May 2009, around three months after O'Donnell . The Tribunal's reasons were published on 30 June 2009. It involved, as this matter does, an application to the Tribunal for review pursuant to s 46(1). The adjudicator had declined to dismiss the adjudication application on the ground that one of the prerequisites in s 32(2)(a) had not been satisfied (namely, that the application had not been properly served in accordance with s 26 of the Act), and had proceeded to make a determination on the merits.
63 The applicant for review submitted that the Tribunal was bound to follow the decision in O'Donnell regarding the scope of the right of review in s 46(1). Specifically, that review is available not only for decisions to dismiss applications under s 31(2)(a), but also where an adjudicator declines to dismiss and makes a determination on the merits. The parties had agreed, relevantly, that a principal issue for determination was whether the applicant was entitled to seek a review of the adjudicator's decision not to dismiss the adjudication application pursuant to s 31(2)(a). A corollary of that question was whether the Tribunal was bound by the construction given to s 46(1) in O'Donnell .
64 The Tribunal considered that Beech J's observations with respect to the proper construction of s 46 and the availability of prerogative relief were obiter dicta, albeit that the views expressed by his Honour should be given great weight (reasons [40] - [42]).
65 The Tribunal then went on to consider the proper construction of s 46(1), with reference, amongst other things, to the Minister's Second Reading Speech. The Tribunal concluded that on a proper construction of the Act as a whole, the only type of decision reviewable under s 46(1) is a decision to dismiss an application for review under s 31(2)(a).
Other recent decisions
66 Two judges in the General Division of this court have also recently had occasion to consider these issues. The first, by Corboy J, was delivered on 29 March 2011: Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80. The second, by Kenneth Martin J, was delivered on 14 July 2011, following the hearing of argument in this appeal: Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172.
67 Corboy J in Thiess v MCC was considering an application by a contractor under s 43 of the Act to enforce a determination by an appointed adjudicator. His Honour noted, without seeking to resolve, the differences between O'Donnell and Match Projects , although he said [44]:
There is much force in the proposition that a decision to refuse to dismiss an adjudication application is a decision made under s 31(2)(a) within the meaning of s 46(1).
68 Amongst other things, his Honour also said, in effect, that he considered that an adjudicator's determination under s 32(1)(b) was amenable to judicial review for jurisdictional error and that s 46(3) did not provide otherwise (see especially reasons [54] and [78] - [82]).
69 In Anstee-Brook; Ex parte Mount Gibson , Kenneth Martin J was dealing with an application for an order nisi for a writ of certiorari to quash a determination of an appointed adjudicator. His Honour appeared to be of the view that s 46(3) was a privative clause which prevented the pursuit of certiorari for error of law on the face of the record, but did not preclude judicial review in respect of jurisdictional error (reasons [41]).
70 The cases to which I have referred have considered, in turn, various decisions from other jurisdictions, particularly New South Wales and the Northern Territory with respect to analogous legislation. We were also referred in this appeal to such authorities. Whilst I have considered all the authorities referred to by counsel, save to the extent mentioned later in these reasons, I have not found those authorities directly helpful on the questions of construction posed in this appeal with respect to this State's legislation.
Section 31(2) - preliminary observations
71 As explained in more detail later, s 31(2) provides what an appointed adjudicator 'must' do. He or she must do one of two things. One is, in effect, to summarily dismiss the application under s 31(2)(a). The other is, in effect, to determine it on its merits under s 31(2)(b). A determination on the merits must be undertaken by the appointed adjudicator if he or she has not summarily dismissed the application under s 31(2)(a).
72 Section 31(2)(a) contains four criteria, the last of which provides that, for the purpose of exercising his or her functions to dismiss an application summarily, the appointed adjudicator must be 'satisfied' about certain matters relevant to the possibility of 'fairly' making a determination on the merits: s 31(2)(a)(iv).
73 The requirement of satisfaction is to a satisfaction formed reasonably on the material before the appointed adjudicator: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [34]; Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 651 - 652. It is to be presumed that in requiring the appointed adjudicator to be so satisfied, the Parliament intended that he or she would draw upon the qualifications and experience which are mandated by s 48 and reg 9.
74 The criteria referred to in subpars (i), (ii) and (iii) of s 31(2)(a) are expressed in more objective terms, although there is, I think, a difference to be discerned between subpar (i) on the one hand, and subpars (ii) and (iii) on the other. The latter two criteria ought, generally, be amenable to determination by fairly routine inquiry (although, it may be accepted, there may arise from time to time 'hard cases' involving determinations of fact and law - cf Thiess v MCC [56]).
75 The first-mentioned criterion, as to whether the 'contract concerned' is or is not a 'construction contract', requires a consideration of the definition of 'construction contract' in s 3 (which I have set out in [30] of these reasons). The question whether a contract is a 'construction contract' within the meaning of s 3 is ultimately a question of law, but it may be supposed that an appointed adjudicator, having the requisite qualifications and experience required under the Act, would have a substantial degree of familiarity with the subject matter and concepts outlined in subpars (a) - (d) of the definition of 'construction contract' in s 3.
76 It is also to be noticed, in relation to an adjudicator's function under s 31(2)(a), that subpars (ii) and (iii) reflect the requirements in s 26 (preparation and service of an application) and s 25(b) (the existence of another judgment order or finding about the dispute), respectively.
77 No reference is made, however, to the subject matter of s 25(a). Section 25(a), in effect, restricts the right of a party to institute an application in circumstances where an application for adjudication has already been made, subject to s 37(2) (which permits the making of a further applicant where the prior application was deemed to be dismissed through lapse of time).
78 It is accepted by both parties, that s 46(1) provides for a right of review to the Tribunal if the appointed adjudicator decides to dismiss an application under s 31(2)(a). Thus, for example, in relation to such a review before the Tribunal involving a consideration of whether, under s 31(2)(a)(i), the 'contract concerned [was] not a construction contract' within the meaning of s 3, the resulting determination of that issue by the Tribunal (assuming a judicial member of the Tribunal sat - as would likely be the case) would involve a question of law, and would be amenable to an application for leave to appeal to this court: s 105 SAT Act.
The proper construction of s 46(1)
79 I have come to the conclusion that the reference in s 46(1) to a 'decision made under s 31(2)(a)' can only be to a decision to dismiss an adjudication application without making a determination on the merits. In my view, the following matters inform the proper construction of s 46(1).
80 First and foremost, it seems to me, reading s 46(1) in conjunction with s 31(2)(a), that the construction I would give s 46(1) is achieved by giving the words in those provisions their ordinary and natural meaning. Section 31(2) provides for two alternatives, relevantly, that '[a]n appointed adjudicator ... (a) dismiss the application ... (b) otherwise, determine [the application]'. The use of the conjunctive 'otherwise', which is defined in the Macquarie Australian Dictionary (4th ed) to mean 'or else', confirms that the two subpars are dealing with alternatives. Further support for the proposition that subpars (a) and (b) are alternatives is found in s 31(3) which commences with the words '[i]f an application is not dismissed or determined under subsection (2)' (emphasis added). Accordingly, the subject of subpar (a) is the dismissal of applications, and the subject of subpar (b) is the determination of applications, and an adjudicator is required by s 31(2) to do one or the other.
81 Section 46(1) refers, in terms, to a 'decision made under s 31(2)(a)', meaning a decision made 'pursuant to' or 'in accordance with' s 31(2)(a). See R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77 [23] - [25]. It seems to me that the only decision that can be made pursuant to, or in accordance with, s 31(2)(a) is a decision to dismiss an application. That is what the express words in subpar (a) provide for, and that is the subject of the subpar. There is, in my view, no scope for the making of a decision 'not to dismiss' under s 31(2)(a) because subpars (a) and (b) are alternatives; there is either a decision to dismiss under s 31(2)(a) or, failing that, there is a determination under s 31(2)(b). In the latter case, there is, necessarily, no decision made under s 31(2)(a). To speak of a decision 'not to dismiss' is to recast the consequence of an adjudicator proceeding to make a determination under s 31(2)(b) in terms of a decision under s 31(2)(a), where the making of such a decision is not provided for expressly nor, in my view, by necessary implication.
82 The appellant submitted that because s 46(1) begins with the words '[a] person who is aggrieved' and not 'the applicant', s 46(1) should be taken to apply both to decisions 'to dismiss' and decisions 'not to dismiss'. Implicit in that submission is the proposition that a respondent to an adjudication application could only be aggrieved where the adjudicator does not dismiss the application and, therefore, because the words of s 46(1) do not limit applications for review to the applicant, it should be construed as affording a right of review to the Tribunal where an adjudicator does not dismiss an application and proceeds to make a determination. I do not accept that submission. There is no reason why a respondent to an adjudication application could not be aggrieved by a decision to dismiss the application. One example would be where the respondent is of the view, contrary to the applicant's assertions, that it in fact owes no money and is desirous of having an early determination made to that effect.
83 Also, it is a 'payment dispute' which is intended to be the subject of adjudication under s 31 (see s 25, s 26, s 29, s 30 and s 31(2)(b)). A 'payment dispute' is defined to include a dispute where, by the time when any security held by a party under the contract is due to be returned, the security has not been returned: s 6(c). There is no definition of 'security', but it may be supposed that it would include for example, a performance bond under which a contractor's holding company or its bank is liable for at least some of the contractor's obligations under the construction contract. The appellant's counsel in this appeal accepted (ts 16), in effect, that a security provider (in the example referred to above, the bank or holding company) may be a 'person aggrieved' for the purposes of s 46(1).
84 Secondly, a construction of the Act which would limit the right of review by the Tribunal to a decision to dismiss an application under s 31(2)(a) appears to me to be supported by s 37 of the Act which obliges an adjudicator to provide reasons for dismissing an application under s 31(2)(a). That section clearly distinguishes between a decision to dismiss under s 31(2)(a), and a determination of the amount to be paid under s 31(2)(b). In the former case, an obligation to provide reasons for the decision is consistent with the conferral of a right of appeal to the Tribunal. In the case of the exercise of the power to make a determination pursuant to s 31(2)(b), s 36 of the Act requires the adjudicator to provide reasons for the determination.
85 Thirdly, s 46(2), in effect, deals with the situation where, on review, the Tribunal sets aside and reverses a 'decision made under s 31(2)(a)'. In those circumstances, s 46(2) requires the adjudicator to make a determination under s 31(2)(b) within 14 days of the Tribunal's decision. One can readily appreciate how this provision operates where the adjudicator dismisses an application under s 31(2)(a); where, on review, the Tribunal finds that there were no proper grounds for dismissal and reverses the adjudicator's decision, the adjudicator is then required to proceed to make a determination in accordance with s 31(2)(b) within 14 days, as the Act would have required had the adjudicator not made the initial decision to dismiss. However, were the phrase 'decision made under s 31(2)(a)' taken to include a decision 'not to dismiss', I agree with the observation of the Tribunal in Match Projects [43] that s 46(2) would have an absurd result. Assuming that the adjudicator does not dismiss the relevant application, any application to the Tribunal for review of the so-called decision 'not to dismiss' could only be brought following the adjudicator making a determination or where the adjudicator is in the process of making a determination. Given the short time limit within which an adjudicator must make a determination (14 days), it will most likely be the former. In those circumstances, were the Tribunal to find that there were proper grounds for the dismissal of the application, it would be an absurd result to then require the adjudicator to make a determination within 14 days for two reasons:
1. to require the adjudicator to make a determination would be inconsistent with the decision of the Tribunal that the application ought to have been dismissed; and
2. at that point in time, the adjudicator will already have made a determination, or will be in the course of making a determination. Parliament could not have intended s 46(2) to give rise to such an absurd result. Section 46(2) therefore supports a construction that the reference to 'a decision made under s 31(2)(a)' is only to a decision to dismiss.
86 At the hearing of the appeal, counsel for the appellant submitted, in effect, that the words 'the adjudicator is to make a determination under s 31(2)(b)' in s 46(2) should be read as meaning 'the adjudicator is to make any necessary determination under s 31(2)(b)', in order to resolve the absurdity to which I refer above. That submission cannot be accepted. To do so would be to read into the provision words which are not there, which should not be done in the absence of clear necessity, in order to give effect to the parliamentary intention: Thompson v Goold & Co [1910] AC 409, 420 (Lord Mersey); Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640, 649 (Stephen J, Menzies J concurring); Yates v The State of Western Australia [2008] WASCA 144 [48] (Steytler P). In my view, the meaning of the words in s 46(2) is clear. Furthermore, for the reasons that follow concerning the scheme of the Act, I do not consider that the 'reading in' of the words suggested by the appellant is necessary to give effect to the purpose of the legislation: cf Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 113 – 116 (McHugh J); Yates v The State of Western Australia [49]. To the contrary, in my view, the construction contended for by the appellant is inconsistent with the evident purpose of the legislative scheme.
87 Fourthly, the object of the scheme is to determine payment disputes arising out of construction contracts 'fairly and as quickly, informally and inexpensively as possible' (s 30), with the primary aim of keeping the money flowing down the contractual chain. That purpose is confirmed by the following passage taken from the Minister's Second Reading Speech (WA Hansard, 3 March 2004, 275):
When a party to a construction contract believes it has not been paid in accordance with the contract, the Bill provides a rapid adjudication process that operates in parallel to any other legal or contractual remedy. The rapid adjudication process allows an experienced and independent adjudicator to review the claim and, when satisfied that some payment is due, make a binding determination for money to be paid. The rapid adjudication process is a trade-off between speed and efficiency on the one hand, and contractual and legal precision on the other. Its primary aim is to keep the money flowing in the contracting chain by enforcing timely payment and sidelining protracted or complex disputes. The process is kept simple, and therefore cheap and accessible, even for small claims. In most cases the parties will be satisfied by an independent determination and will get on with the job. If a party is not satisfied, it retains its full rights to go to court or use any other dispute resolution mechanism available under the contract. In the meantime, the determination stands, and any payments ordered must be made on account pending an award under the more formal and precise process.
88 I agree with the observations of the Tribunal in Match Projects [51] that the scheme of the Act contains a bias in favour of the payment of money in accordance with adjudication determinations in furtherance of the underlying purpose of maintaining the flow of money. As indicated in the above passage from the Second Reading Speech, contractual and legal precision is required necessarily to yield, to a degree, to allow for the speedy resolution of disputes.
89 It is consistent with the scheme I have described to construe the words 'a decision made under s 31(2)(a)' as referring only to a decision to dismiss. A decision by an adjudicator to dismiss an adjudication application brings the process to an end and therefore has the potential to curb the flow of money. By providing for a right of review to the Tribunal in those circumstances, the Act provides a mechanism by which any error by the adjudicator in dismissing the application can be rectified and the adjudication process revived, with a view to the adjudicator making a determination and preserving the flow of money.
90 Further, on the construction I would give to s 46(1), the coherence of the structure created by the Act can readily be appreciated, having regard to the differing means available to a person to challenge a decision to dismiss on the one hand, and a determination of the merits of the dispute on the other.
91 If the adjudicator decides to dismiss the application under s 31(2)(a), the adjudicator is obliged to give reasons for that decision (s 37), and any person aggrieved may apply to the Tribunal for review of the decision (s 46(1)). Alternatively, any person with a sufficient interest in the decision can apply for judicial review on the ground of jurisdictional error (ignoring, for the moment, s 46(3)), subject to the discretion to refuse relief if the applicant had a right to seek review in the Tribunal under s 46(1). This structure provides an avenue for merits review to the Tribunal, which is broader than review for jurisdictional error, and which might be expected to be quicker, cheaper and less complex than judicial review on the ground of jurisdictional error.
92 On the other hand, if the adjudicator proceeds to make a determination, he or she must give reasons for the determination (s 36). That determination can then be challenged by judicial review on the ground of jurisdictional error, or at the point at which application is made to enforce the determination by a court of competent jurisdiction, under s 43, again on the basis that the determination exceeded the jurisdiction of the adjudicator and therefore was not a 'determination' at all. Given the legislative objective of 'keeping the money flowing', and to limit the means by which the validity of a determination can be challenged, it would be inconsistent with the legislative objective, and would detract from the coherence of the legislative scheme, to construe the Act as providing for merits review in the Tribunal whenever an adjudicator proceeds to make a determination. Such a construction of the Act would likely introduce significant delay, and provide for fragmented and somewhat incoherent avenues by which the exercise, or purported exercise, of jurisdiction to make a determination might be challenged.
93 Fifthly, I would note that the provision of a right of review to the Tribunal under s 46(1) only for decisions to dismiss, may be seen to be broadly consistent with the approach adopted by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (a case concerning judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth)), namely that reviewable decisions are normally 'final or operative and determinative' and conclusions reached as a step along the way to an ultimate decision are not ordinarily reviewable. It is the dismissal which is the relevant 'final or operative and determinative' decision under s 31(2)(a), in that a decision to dismiss prevents the application proceeding further. In that sense, consistently with Australian Broadcasting Tribunal v Bond , s 46(1) may be seen as providing a right of review for such decisions. On the other hand, where an adjudicator proceeds to make a determination (the relevant 'final or operative and determinative' decision under s 31(2)(b)), it would be inconsistent with that approach to construe the Act as providing for a merits review to the Tribunal of a step which is antecedent to the determination itself, namely, the step of proceeding to exercise the power to make a determination.
94 The above analysis would lead me, respectfully, to disagree with Beech J's construction of s 46(1) in O'Donnell , and toward the view that the conclusion reached by the Tribunal in Match Projects was correct. The appellant's application to the Tribunal for review was put on the basis that the adjudicator should have dismissed the adjudication application due to the complexity of the issues involved (s 31(2)(a)(iv)). The view thus far reached is that, on a proper construction of s 46(1), that course was not open to the appellant.
95 It will be apparent that I have not yet, however, considered the significance and scope of s 46(3) and the related question of the availability of prerogative relief. As the Act must be construed as a whole, these matters have the potential to bear upon the proper construction of s 31 and s 46, and thereby require consideration. For the reasons that follow, whilst, in my view, the prerogative writs of prohibition and certiorari would lie if an appointed adjudicator purportedly proceeded to determine an application under s 31(2)(b) which was required to be dismissed under s 31(2)(a), the availability of prerogative relief does not bear adversely upon my conclusion as to the proper construction of s 46(1) referred to above.
Availability of judicial review and prerogative relief
96 An appointed adjudicator acting under s 31(2)(b) is exercising a statutory power or function capable of affecting the parties' rights, and would thereby ordinarily be amenable to the Supreme Court's supervisory jurisdiction: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750 [5] - [19] (Spigelman CJ), [66] - [84] (Basten JA).
97 Both parties in this appeal said, in effect, that they accept that the facts in s 31(2)(a) must be taken to be 'jurisdictional facts' in connexion with the exercise of power under s 31(2)(b). Two judges of the General Division of this court have also formed that view (see O'Donnell [120] and Thiess v MCC [72]). However, because the term 'jurisdictional fact' has, on occasions, been used 'somewhat loosely' (cf Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [43]), it is appropriate to commence this discussion by seeking to examine, more precisely, the meaning of that term in a context such as this.
Jurisdictional facts
98 The term 'jurisdictional fact' is often used to identify the criterion or criteria which must be satisfied in order to enliven the exercise of a statutory power or discretion: City of Enfield v Development Assessment Commission [28]; Gedeon v Commissioner of the New South Wales Crime Commission ; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407. In Gedeon v Commissioner of the New South Wales Crime Commission , the High Court said [43] - [44]:
The expression 'jurisdictional fact' was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then 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.
The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd :
'The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act - it is a condition of jurisdiction.'
99 Where a fact is not a jurisdictional fact, the existence of the fact is not a condition of the exercise of jurisdiction and the decision-maker's determination of the fact has been called 'conclusive' in the sense that it is free from collateral attack and is not subject to judicial review: R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6; (1979) 143 CLR 190, 225 - 226 (Mason J). However, in a related context, in a discussion of the proposition that inferior courts, as opposed to administrative tribunals, may 'authoritatively' determine questions of law, French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ, in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531, cautioned against the use of a label such as 'authoritative'. Their Honours said [70]:
When certiorari is sought, there is often an issue about whether the decision is open to review. If 'authoritative' is used in the sense of 'final', a decision could be described as 'authoritative' only if certiorari will not lie to correct error in the decision. To observe that inferior courts generally have authority to decide questions of law 'authoritatively' is not to conclude that the determination of any particular question is not open to review by a superior court. Whether a particular decision reached is open to review is a question that remains unanswered. The 'authoritative' decisions of inferior courts are those decisions which are not attended by jurisdictional error. That directs attention to what is meant in this context by 'jurisdiction' and 'jurisdictional'. It suggests that the observation that inferior courts have authority to decide questions of law 'authoritatively' is at least unhelpful.
100 Similarly, in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, the plurality considered that the labelling of requirements as 'mandatory' or 'directory' in relation to the exercise of the statutory power had outlived its usefulness. Their Honours said [92] - [93]:
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. ...
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. 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. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. 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'.
101 In Aronson M, Dyer BD and Groves M Judicial Review of Administrative Action (4th ed), the learned authors refer to what might be described as the 'narrow' definition of a 'jurisdictional fact' as follows [4.285]:
On our definition, a jurisdictional fact must actually exist for the decision-maker's ultimate actions to be valid. There is no right or wrong definition [of jurisdictional fact], so it is important to understand that the way we use it is narrower than the way some others have used it.
102 The learned authors then refer to Gummow J's decision in Minister for Immigration and Multicultural Affairs v Eshetu (651). In Minister for Immigration and Multicultural Affairs v Eshetu , Gummow J referred to the term 'jurisdictional fact' in what may be regarded as the 'broad' sense. His Honour said (651):
The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp , Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. Section 65 of the Act is an example. The prosecutor was entitled to the grant of a visa only if the minister were 'satisfied' that the prosecutor answered the description in s 36(2).
103 In relation to this type of 'jurisdictional fact', Gummow J continued (651 - 652):
A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution. This is established by a long line of authority in this Court which proceeds upon the footing that s 75 is a constitutional grant of jurisdiction to the court.
...
In R v Connell; Ex parte Hetton Bellbird Collieries Ltd , Latham CJ said:
'[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.'
The Chief Justice added:
'It should be emphasised 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.'
104 Similarly, in Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Gummow ACJ and Kiefel J observed [23] - [24]: In Australia, as Basten JA recently observed, the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms 'arbitrary, capricious, irrational' as well as 'not bona fide' to stigmatise the formation of an opinion upon which a statutory power was enlivened. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open. A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact.
105 As McDougall J noted in Chase Oyster Bar v Hamo [177], Gummow ACJ and Kiefel J dissented in the outcome, but their statement of principle is consistent with the views of the majority.
106 Whether the legislature has made the exercise of the power contingent upon the actual existence of a state of facts, or the decision-maker's opinion or satisfaction about certain matters, is a question of statutory construction: City of Enfield v Development Assessment Commission [28] - [34]; Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456, 465 - 466 (Black CJ) – whose dissenting judgment was upheld on appeal in the High Court in Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297; R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54, 97 - 98 (Kitto J). See also the discussion in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 [57] (French CJ), [107] - [109] (Gummow, Hayne, Crennan & Bell JJ), where the decision-maker's (Minister's) primary argument was that the only constraints on the decision-maker's power were that the power be exercised in good faith and within the scope and purpose of the statute.
107 Where a reference to a fact or event appears in a statutory formulation in words involving the state of mind of the decision-maker, such as the 'opinion', 'belief' or 'satisfaction', the construction is often, but not necessarily, against a conclusion of jurisdictional fact in the narrow sense: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 [42].
108 In Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229, Basten JA observed [44]: It is well established that the mere fact that a requirement is objectively expressed, rather than by reference to the satisfaction of the officer or tribunal concerned, is not decisive of the construction issue. Indeed, in relation to inferior courts, it has been said that there is a strong presumption against any jurisdictional qualification being interpreted as contingent upon the actual existence of a state of facts, as opposed to the decision-maker's opinion in that regard: see Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391 (Dixon J). A factor favouring that approach is 'the inconvenience that may arise from classifying a factual reference in a statutory formulation as a jurisdictional fact': Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 72 (Spigelman CJ).
109 Similarly, in Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462, following a consideration of Black CJ's decision in Australian Heritage Commission v Mount Isa Mines Ltd , Branson J referred to jurisdictional criteria involving matters of fact and matters for which the relevant authority was to be 'satisfied'. Her Honour held that the former matters in that case did not require the existence of the facts to be objectively proved. Her Honour said (476): It is true that the rules draw a distinction between matters of fact and matters in respect of which the authority is to be 'satisfied'. In my view, this distinction does not reflect an intention that the authority's power to act is contingent upon the actual existence of those matters of fact. Rather, the distinction between matters of fact and matters in respect of which the authority is required to be satisfied reflects a distinction between matters capable of objective determination and those which involve an exercise of judgment (eg 'a definite community need'; 'suitable commercial premises'; 'exceptional circumstances').
110 In Chase Oyster Bar v Hamo , consideration was given in the New South Wales Court of Appeal, in relation to analogous (but far from identical) legislation, to whether the nomenclature of 'jurisdictional fact' was apt to describe a provision which qualified the application which a claimant was required to make in order to obtain an adjudication of a payment claim. Section 17(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) provided that 'a claimant may apply for adjudication of a payment claim (an "adjudication application")' in the circumstances set out in subss (a) and (b). Section 17(2)(a), the relevant provision in question in that case, provided that an adjudication application to which s 17(1)(b) applied 'cannot be made unless', amongst other things, the claimant had notified the respondent within 20 business days. The respondent had been notified outside of the stipulated 20-day period. Spigelman CJ said [34] - [36]:
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 above at [28]; Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; 249 ALR 398 ; [2008] HCA 43 at [43] (Gedeon). 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 above 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) 184 CLR 265 at 277; 131 ALR 353 at 360 (David Grant).
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.
111 His Honour concluded that on the proper construction of the New South Wales legislation, the adjudicator did not have jurisdiction to determine an application made without compliance with the mandatory (in a negative sense) requirements in s 17(2). Basten JA said he agreed with Spigelman CJ and McDougall J, and said 'that compliance with the time limit specified in s 17(2)(a) is an essential condition for a valid determination' [96]. McDougall J, however, expressed some reservations about Spigelman CJ's characterisation of s 17(2). His Honour said [179] - [181]:
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.
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. I accept (for the reasons that I give at [226]–[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'.
The exercise of the powers or functions under s 31(2)(a) and s 31(2)(b)
112 In my view, it is unhelpful to confine the construction issues raised in this appeal by reference to whether s 31(2)(a), or its constituent elements, are 'jurisdictional facts' for the purpose of the exercise of the power conferred under s 31(2)(b). Viewing s 31(2)(a) as a 'jurisdictional fact' which does no more than, potentially, condition the exercise of power under s 31(2)(b) tends to distract attention, in my opinion, from the nature and scope of the function independently existing and exercisable under s 31(2)(a).
113 Section 31 is in div 3 which is headed 'The Adjudication Process ' (emphasis added). Section 31(2)(a) itself is expressed in terms conferring jurisdiction on an appointed adjudicator - to dismiss an application. It is the proper exercise (or non-exercise) of that power or function, in its own right, which determines whether s 31(2)(b) has any application. The statutory language is clear. The two are alternative functions. In s 31(2), an appointed adjudicator may not determine an application on its merits if it is required to be dismissed under s 31(2)(a). In other words, an appointed adjudicator may not proceed under s 31(2)(b) to determine an application on its merits if the application is one which must be summarily dismissed under s 31(2)(a). If an appointed adjudicator were purportedly to proceed to determine an application under s 31(2)(b) which ought to have been dismissed under s 31(2)(a), the adjudicator would be acting unlawfully and without power. The prerogative writs of prohibition and certiorari would be available respectively to restrain, or quash, the abuse of power (subject to the effect of s 46(3), discussed later).
114 The decision to dismiss would also, theoretically, be amenable to judicial review, although the enactment of a statutory right of review for decisions to dismiss under s 46(1) would be an important discretionary consideration against the grant of prerogative relief, particularly as the statutory review is of a broader nature: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [56]; Re Carey [133] - [137].
115 That matter directs attention, then, to what constitutes the lawful exercise of the power to dismiss under s 31(2)(a). The language of s 31(2)(a) is mandatory; the appointed adjudicator 'must' dismiss if one or more of the criteria in subpars (i) - (iv) are satisfied. Section 31(2)(a) does not involve the exercise of a statutory discretion. In my view, the matters in subpars (i) - (iv) of s 31(2)(a) are 'jurisdictional facts' which condition the lawful exercise of the function committed to an appointed adjudicator under s 31(2)(a). It is not necessary to determine, for the purposes of this appeal, whether the matters in s 31(2)(a) are, properly construed, jurisdictional facts in the broad sense or the narrow sense (see [101] - [111] above).
116 By way of a provisional observation, however, it may be noted that the legislature, in subpar (iv) of s 31(2)(a), has expressed that criterion by reference to the appointed adjudicator being 'satisfied' of the matters referred to therein. This, in the context of the registration requirements under s 48 and reg 9, provides a powerful indication that subpar (iv) at least is not intended to be a 'jurisdictional fact' in the narrow sense. The preceding criteria do not refer to 'satisfaction' in terms, but that is not necessarily conclusive or determinative of the issue: Coordinated Construction Co v Climatech (Canberra) [44].
117 The subject matter of s 25(a), on the other hand, sits in a different category. That matter is not mentioned in connexion with an appointed adjudicator's function under s 31(2)(a). There can be no question of the appointed adjudicator forming an opinion or being satisfied of that matter. In my view, on the proper construction of the Act, an appointed adjudicator must not proceed to make a determination under s 31(2)(b) if the purported application were made contrary to the mandatory (negative) requirement in s 25(a), which precludes the making of a second or subsequent application, subject to s 37(2). In this regard, I find the reasoning of Spigelman CJ in Chase Oyster Bar v Hamo [34] - [36], with respect, persuasive.
118 Finally, although it is unnecessary to resolve in this appeal the scope of judicial review in respect of determinations under s 32(1)(b), I agree with Beech J in O'Donnell [102], with whom Corboy J has also expressed agreement in Thiess v MCC [59], that an appointed adjudicator's determination under s 31(2)(b) is not amenable to judicial review for non-jurisdictional error of law. I agree that the scheme and purpose of the Act, which, as the long title indicates, is 'to provide a means for adjudicating payment disputes arising under construction contracts', is more consistent with an appointed adjudicator being akin to an inferior court rather than an administrative tribunal for certiorari purposes, when exercising the power to make a determination under s 31(2)(b).
Section 46(3) and its relationship with s 46(1)
119 Having considered generally the question of the availability of judicial review, and prerogative relief for determinations made under the Act, it is necessary to consider whether s 46(3) operates to modify the position as outlined above.
120 As noted by Beech J in O'Donnell [109], s 46(3) is in the nature of a privative clause in that it purports to prohibit appeals from, or review of, decisions and determinations made by an adjudicator 'except as provided by subsection (1)'. In my view, s 46(3) does not operate to exclude judicial review.
121 Privative clauses should not be considered in isolation, and should be construed in the context of the legislation as a whole: Plaintiff S157/2000 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 [33]. However, privative clauses are strictly construed according to the presumption that Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies: Plaintiff S157/2000 v Commonwealth [32], [72]. It is fundamental to the rule of law that persons affected by administrative decisions should have access to the courts to challenge those decisions and general words will rarely be sufficient to abrogate such fundamental rights and freedoms: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [48]; Plaintiff S157/2000 v Commonwealth [30]. Also, it is beyond the legislative power of any state parliament to enact a privative clause which ousts the supervisory jurisdiction of the Supreme Court with respect to jurisdictional error. Section 46(3) is to be read in a manner that takes account of the limits on the relevant legislative power: Kirk v Industrial Relations Commission of New South Wales [99] - [101].
122 Section 46(3) is expressed in general language and does not resemble the typical form of privative clause directed to the supervisory jurisdiction of the court. It does not refer, in terms, to judicial review by a court, nor does it refer to the forms of prerogative relief: cf O'Toole v Charles David Pty Ltd [1990] HCA 44; (1991) 171 CLR 232; Plaintiff S157/2000 v Commonwealth ; Kirk v Industrial Relations Commission of New South Wales . In my view, the text of s 46(3) does not even purport to exclude judicial review of adjudication determinations.
123 Moreover, viewed in the context of s 46, and the Act as a whole, and bearing in mind the principles set out in [121] above, s 46(3) is to be read as applying to review by the Tribunal only. The word 'review' is a commonly used term and must take its meaning from its context: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. The subject of s 46 is review by the Tribunal. That is expressly the case in subs (1) and subs (2). Although the prohibition in subs (3) is not in terms limited to Tribunal review, it is made subject to subs (1). It is consistent with that structure that subs (3) also be read as applying to Tribunal review. The word 'review' in s 46(3) is, accordingly, in my view, intended to refer to the right of review to the Tribunal contemplated by s 46(1).
124 Section 46(3) also provides that a determination by an adjudicator cannot be 'appealed', except as provided by s 46(1). The Act does not, in s 46(1) or elsewhere, grant any right of 'appeal' as such. Rights of appeal (or review, leaving aside judicial review) of decisions of this nature are purely creatures of statute: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 [17]; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 [2].
125 It is significant that in s 45(3), the word 'appeal' is used when, evidently, the intention is to refer to a 'review' under s 46(1). The prohibition forbidding an 'appeal' in s 46(3) appears to serve no purpose other than to emphasise the absence of any other statutory right of review of any kind.
126 The conclusion that s 46(3) does not preclude judicial review on the ground of jurisdictional error is reinforced by the observation that the words 'a decision or determination of an adjudicator' in s 46(3) are to be construed consistently with the approach taken in Plaintiff S157/2000 v Commonwealth , as only extending to decisions or determinations made in the valid exercise of jurisdiction conferred by the Act. As in Plaintiff S157/2000 v Commonwealth , if s 46(3) were construed as excluding judicial review for jurisdictional error, those provisions of the Act which limit the jurisdiction conferred upon, relevantly, an adjudicator (such as s 31(2)(a)) would be deprived of any meaning or effect.
127 Finally, in this context, I should note that Beech J in O'Donnell [122] considered that the primary object, described in the Second Reading Speech to 'keep the money flowing', was advanced by a construction of s 46 which, in effect:
(1) permitted a right of review to the Tribunal under s 46(1) in relation to, relevantly, a 'decision' 'not to dismiss' under s 31(2)(a); and
(2) excluded the availability of prerogative relief in relation to jurisdictional error.
128 His Honour regarded review by the Tribunal as 'more expeditious' [122] and more consistent with the scheme of the Act than the 'slower and more cumbersome prerogative relief' [131]. Beech J's decision in O'Donnell was, it may be noted, delivered prior to the High Court's decision in Kirk v Industrial Relations Commission of New South Wales . It must be accepted now that judicial review will always be available for at least jurisdictional error.
129 Moreover, although it might be thought to be more efficient or convenient for a 'decision' 'not to dismiss' to be equally amenable to Tribunal review under s 46(1) as a decision to dismiss under s 31(2)(a), rather than be amenable to judicial review, I am not persuaded that those considerations properly affect the proper construction of s 46(1). First, and fundamentally, for the reasons given earlier, the text of s 46(1) is inconsistent with such an approach. Secondly, insofar as the Tribunal would provide a quicker avenue for relief, a right of review to the Tribunal where an application is dismissed is conducive to the statutory purpose of 'keeping the money flowing'. On the other hand, no evident statutory purpose is served by expediting a review of a 'decision' 'not to dismiss', with a view to rendering inapplicable the adjudication process facilitated by the Act. The argument that the statute requires an early resolution by the Tribunal of the unavailability of adjudication under the Act in order to avoid the parties' resources being wasted on an unlawful adjudication is not compelling or adequately grounded in the Act. In this regard, the adjudication process is designed to be quick, informal and inexpensive. The Act does not envisage the application of substantial resources to the process. Further, even where the adjudication process is lawfully undertaken, the parties may commence and proceed with resolution of their substantive dispute in a court or by arbitration: s 45. Thus, it is difficult to glean from the Act that it is concerned to ensure that the parties' resources are not wasted in what might prove to be, ultimately, an ineffectual process for allocating rights and liabilities. That is not to say, however, that it might not be a relevant consideration in the exercise of the court's discretion under s 43, if a party first raised an allegation of jurisdictional error when seeking to resist an application under s 43 for leave to enforce a determination.
Conclusion
130 For these reasons, I would allow the appellant's application for leave to appeal, and dismiss the appeal.