JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION : RE DAVID SCOTT ELLIS; EX PARTE TRIPLE M MECHANICAL SERVICES PTY LTD [No 2] [2013] WASC 161
CORAM : EM HEENAN J
HEARD : 19 MARCH 2013
DELIVERED : 2 MAY 2013
FILE NO/S : CIV 1318 of 2013
MATTER : In the matter of an application for a Writ of Certiorari against David Scott Ellis as adjudicator under the Construction Contracts Act 2004
EX PARTE
TRIPLE M MECHANICAL SERVICES PTY LTD
Applicant
AND
DAVID SCOTT ELLIS
First Respondent
UNITED INDUSTRIES (WA) PTY LTD
Second Respondent
Catchwords:
Certiorari - Construction Contracts Act 2004 (WA) s 27(1) and s 41 - Adjudicator - Timing for response - Significance of late response – Alleged jurisdictional error - Effect of electronic communications - When received - Extent of review
Legislation:
Construction Contracts Act 2004 (WA)
Construction Contracts Regulations 2004
Electronic Transactions Act 2011 (WA)
Result:
Order nisi discharged
Application for certiorari dismissed
Stay of enforcement discharged
Category: B
Representation:
Counsel:
Applicant : Mr F G Kalyk
First Respondent : No appearance
Second Respondent : Mr A Metaxas & Mr L Hager
Solicitors:
Applicant : Rockliffs Solicitors & IP Lawyers
First Respondent : No appearance
Second Respondent : Metaxas & Hager
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123
Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393
Co-ordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 299
Co-ordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; (2005) 63 NSWLR 385
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Downer Construction (Australia) Pty Ltd v Energy Australia [2007] NSWCA 49; (2007) 69 NSWLR 72
DPD Pty Ltd v McHenry [2012] WASC 140
Halkat Electrical Contractors Pty Ltd v Holmwood Holdings Pty Ltd [2007] NSWCA 32
Jalun Pool Supplies Pty Ltd v Onga Pty Ltd [1999] SASC 20
K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd [2011] NTCA 1
Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Parisienne Basket Shoes v Whyte [1938] HCA 7; (1938) 59 CLR 369
Parkview Constructions Pty Ltd v Sydney Civil Excavations Pty Ltd [2009] NSWSC 61
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217
Premium Grain Handlers Pty Ltd v Elite Grains Pty Ltd [2005] WASC 103
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [2012] WASC 129
Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [No 2] [2013] WASC 59
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 546
Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80
Triple M Mechanical Services Pty Ltd v Ellis [2013] WASC 67
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399
Tugun Cobaki Alliance Inc v Minister for Planning and Roads and Traffic Authority NSW [2006] NSWLEC 396
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54
Witham v Raminea Pty Ltd [2012] WADC 1
EM Heenan J
1 EM HEENAN J : This is the return of an order nisi granted on 27 February 2013 for a writ of certiorari seeking to quash the determination of David Scott Ellis, an adjudicator appointed under the Construction Contracts Act 2004 made on 14 February 2013. The subject of the determination was a 'payment dispute' as defined by s 6 of that Act. The determination requires the applicant to pay to the second respondent an amount of $458,895 plus GST claimed due for variations alleged to have been authorised by a contract between the applicant, Triple M Mechanical Services Pty Ltd (Triple M) and the second respondent, United Industries Pty Ltd (United Industries) under a contract between those parties concerning the preparation of steelwork for air conditioning plant and equipment to be installed at the Fiona Stanley Hospital. United Industries is a subcontractor to Triple M for a portion of that air conditioning work.
2 In Triple M Mechanical Services Pty Ltd v Ellis [2013] WASC 67 I granted an order nisi for the writ of certiorari to be returnable before a single Judge and also ordered that there be a stay of the effect of the determination of the first respondent until 18 March 2013 but that the parties should have liberty to apply to vary or discharge the stay on 48 hours notice. Since then the second respondent applied to discharge the orders of 27 February on various grounds but, after consultation, did not press that application. It was later dismissed by consent but also by consent an order was made on 13 March that:
(a) the applicant should pay into Court the amount of $229,784.50, to be paid out of court ultimately to the successful party in these proceedings after an order is made by the Court;
(b) that the application be listed for hearing on 18 March 2013;
(c) the plaintiff have liberty to apply to amend the notice of originating motion to include a further ground, namely, that the first determination was not made within time and the application for adjudication was thereby taken to be dismissed.
3 Further incidental procedural and programming orders were also made by consent and the money was paid into the Court as ordered on 14 March 2013. The application was heard on 18 and 19 March and the decision was reserved. The stay of proceedings on the determination by the adjudicator was continued on the same terms until this decision was given but with liberty to apply.
4 An amended originating motion was filed by the applicant on 13 March identifying the following as the orders sought:
1. An order for certiorari against the first respondent as adjudicator appointed pursuant to s 28 of the Construction Contracts Act 2004 , for the quashing of his adjudication decision made 14 January 2013, pursuant to s 31(2)(b) of that Act, on grounds 1 - 3 set out in the Schedule thereto.
2. Further and in the alternative to order 1, a declaration that the determination of the first respondent is deemed to have been dismissed pursuant to s 31(3) of the Act, on ground 4 set out in the Schedule thereto.
3. Such further or other orders as the Court thinks fit.
5 Then follow four grounds upon which the applicant relies for seeking that relief. Grounds 1 to 3 are relied on for the first order claimed and ground 4 for the second. Each of the grounds is supported by lengthy particulars. However, at this point, I consider that a better perspective can be gained simply by identifying the grounds for the relief claimed and then setting out the particulars later.
6 The grounds are as follows:
GROUND 1 The Adjudicator fell into jurisdictional error in his adjudication ('the decision') in that:
a. He failed to have regard to the response prepared by the Applicant and served on the Adjudicator on 31 January 2013.
b. He failed to have regard to the response prepared by the Applicant and served on the Adjudicator on 1 February 2013.
c. He failed to consider the question on the basis of which the payment dispute before him was to be determined.
GROUND 2 The Adjudicator failed to bona fide exercise his powers as Adjudicator for the purposes required by the Construction Contracts Act 2004 in that:
a. He failed to determine the value of the claim.
b. He failed to have regard to the Applicant's response submissions.
c. He failed to consider the construction contract terms.
GROUND 3 The Adjudicator failed to afford to the Applicant procedural fairness in relation to the payment dispute.
GROUND 4 The Adjudicator failed to provide his determination within the prescribed time.
7 The particulars relied on to support the four grounds advanced by the applicant are as follows:
Particulars of Ground 1a
1. Section 27 of the Construction Contracts Act 2004 ('the Act') required the Applicant to serve its written response to the application for adjudication, upon the Adjudicator and the Second Respondent by 31 January 2013.
2. Section 17(2)(c) of the Act required that response to set out or have attached to it the information, documentation and submissions on which the Applicant relied in the adjudication.
3. On 31 January 2013, the Applicant served upon the Adjudicator and Second Respondent, its response (including 45 attachments) by emails to the respective email addresses which had been provided to the Applicant by the Adjudicator and the Second Respondent for the purpose of such communications. The attachments to the emails included detailed submissions entitled 'Response to Application for Adjudication'. They also included attachments in support of and referred to in that response (' the attachments '). Each of the attachments was in the form of 'rar' files.
4. In the circumstances, the transmissions of the emails and the attachments were communications made with the consent of the Adjudicator and the Second Respondent and at the times of their transmission, it was reasonable to expect that the information in the attachments would be readily accessible so as to be usable for subsequent reference, such at the attachments were served in writing, pursuant to s 9 of the Electronic Transactions Act, 2011 ('the ETA').
5. At the times of receipt of those transmissions, namely, on 31 January 2013, the attachments were capable of being retrieved by the Adjudicator and the Second Respondent, such that pursuant to s 14 of the ETA, the attachments were the received by the Adjudicator and the Second Respondent at those times.
6. However, applying constructions of the provisions of ss 9 and 14 of the ETA which were contrary to those provisions on their proper construction (see [27]-[29]), the Adjudicator found (at [31]) that the attachments were not served on him on 31 January 2013.
7. In the circumstances of that finding, the Adjudicator refused (at[47]) to have any regard to the attachments in his adjudication application.
8. On 31 January 2013, the Applicant re-served the attachments on the Adjudicator and the Second Respondent, by emails to the same respective email addresses as referred to above. These attachments were in the form of a 'Yousendit' link embedded in the emails.
9. In the circumstances, the transmissions of the further emails and the embedded 'Yousendit' links were communications made with the consent of the Adjudicator and the Second Respondent and at the times of their transmission, it was reasonable to expect that the information in the attachments would be readily accessible so as to be usable for subsequent reference, such that the attachments were served in writing, pursuant to s 9 of the ETA.
10. At the times of receipt of those further transmissions, namely, on 31 January 2013, the attachments were capable of being retrieved by the Adjudicator and the Second Respondent, such that pursuant to s 14 of the ETA, the attachments were the received by the Adjudicator and the Second Respondent at those times.
11. However, applying a construction of s 14 of the ETA which was contrary to its proper construction (see [33]-[36]), the Adjudicator found that the attachments were not served on him or on the Second Respondent on 31 January 2013.
12. The Adjudicator's finding that the 'Yousendit' embedded attachments were not served on the Second Respondent rested on the Adjudicator's determination that the 'Yousendit' attachments were not served until downloaded.
13. Having so found, the Adjudicator refused in his adjudication decision (at [47]) to have any regard to the attachments, which were an integral part of the Applicant's response.
14. In so proceeding, the Adjudicator failed to make his decision as required by s 32(a) of the Act, in that he failed to have regard to the Applicant's response and he thereby fell into jurisdictional error.
Particulars of Ground 1b
1. The Applicant again re-served copies of all the attachments and its response submissions, by service of hard copies on the First and Second Respondents shortly after noon on 1 February 2013.
2. The Adjudicator refused (as [47]) to have any regard to the attachments in his adjudication determination, notwithstanding that he and the Second Respondent had been in receipt of them in hard copies of those documents from at least 1 February 2013.
3. On its proper construction, the Act does not, contrary to the finding of the Adjudicator, prohibit him having regard to that material.
4. On 1 February 2013, the Adjudicator sought from the Applicant by 5pm on 6 February 2013 submissions as to whether he could take the Applicant's response into account in his determination. The Applicant provided submissions as requested. The adjudicator had regard to those further submissions on the issue of time of service, but failed to have regard to the attachments, which he found to have been served on him on 1 February 2013.
5. Pursuant to s 14 of the ETA, the Adjudicator was permitted to agree the time of service of the attachments to be his receipt of the emails to which they were attached or embedded. He did not so agree.
6. By reason to ss 30, 31 and 32 of the Act, and in the circumstances, the Adjudicator was required to have regard to the attachments in order to fairly determine the payment dispute before him on the balance of probabilities.
7. Accordingly, the Adjudicator failed to adjudicate the payment dispute fairly and informally as required by s 30 of the Act, and failed to make his determination on the basis of material including the Applicant's response as required by s 32(1)(a) of the Act.
8. In so proceeding the adjudicator committed jurisdictional error.
Particulars of Ground 1c
1. The claim made by the First Respondent was a claim for 'Variation Works as per Scope Growth from Original Tender Drawings to Actual Onside Construction and Installation'.
2. The contract between the parties was a fixed priced contract for the works in the contract drawings.
3. The Adjudicator failed to have regard to that matter or to the term of the contract which provided, 'Variations shall be priced against the provided Schedule of Rates'.
4. Further, as a matter of principle, consistent with the contract, a claim for variations is to be determined by firstly, the identification of the variations to the contract scope and by secondly, the pricing of those variations by reference to the schedule of rates. The Applicant so submitted at [32] of its response submissions.
5. However, the Adjudicator did not approach the payment dispute in this way. He did not proceed on such an enquiry. He posed for his determination (at [92]) a different question, namely, what was 'the value of the work that was originally within the scope of the contract, compared to the value of the work which had to be done'.
6. In so proceeding, the Adjudicator did not consider the question properly before him for his determination of the payment dispute.
7. Furthermore, the Adjudicator did not follow the approach he had so set for himself. He did not assess the value of the original work; he rejected the contract price as representing that value (at [92]) on the assumption of some necessary correlation between the value of the original work and the schedule of rates for variations (also at [92]); and he accepted the Second Respondent's claimed 'tender breakdowns' as representing the value of the original work, although not part of the contract.
8. In the circumstances, the Adjudicator failed to determine variations claimed under the contract, but misconceiving the nature of the function he was performing, determined a different question, and thereby fell into jurisdictional error.
Particulars of Ground 2a
1. In proceeding to determine the payment dispute in the manner referred to in Ground 1c above, the Adjudicator failed to embark upon the question of the determination of the value of the claim as made, and thereby failed to bona fide consider the matter which he was to determine.
2. Accordingly, the Adjudicator did not determine the amount of the claim as he was required to do by a consideration of all the material put before him in the adjudication application.
Particulars of Ground 2b
1. The Applicant refers to the matters set out above in relation to Ground 1.
2. The Adjudicator accepted that he was required to consider the Applicant's response submissions (absent its attachments).
3. However, the Adjudicator failed to consider and to deal with the submissions at [72b] and [81] that the contract was a Lump Sum contract.
Particulars of Ground 2c
1. The Adjudicator:
(a) failed to identify the contract as a fixed price lump sum contract.
(b) failed to have regard to the provision in the contract for retention.
(c) failed to have regard to the provisions of the contract providing for the manner of making progress claims.
2. Accordingly, the Adjudicator failed to bona fide consider the contract for the purpose of determining the claimed entitlement under it.
3. As to the nature of the contract, the Adjudicator commenced his reasons in relation to the merits of the claim at p.22 of his 24 page determination. He failed in to have regard to the fact that the contract was a fixed price lump sum contract.
4. The Adjudicator does not in his reasons disclose any findings as to the nature of the contract a matter critical to the determination of the Second Respondent's entitlement to the claim the subject of the payment dispute.
5. The contract provided for the withholding of retention. The Adjudicator failed to have any regard to this in his determination. He does not explain why he did not do so. He failed to make any adjustment for the amount determined by him for retention.
6. The contract contained provisions as to the material to be provided by the Second Respondent to make claims under the contract. However, the Adjudicator failed to have regard to these provisions (see determination at [65] and [66]).
7. In the circumstances, the Adjudicator failed to bona fide discharge the functions accepted by him to determine the dispute by reference to the contract under which that dispute was to be determined.
Particulars of Ground 3
1. The Applicant refers to the matters set out above in respect of Ground 1.
2. The attachments to the Applicant's response were critical to the significant issue in dispute between the parties, namely the identification and value of the variations claimed. Those attachments comprised detailed analyses by third parties upon that issue.
3. In failing to have regard to those attachments, the Adjudicator could not fully consider the Applicant's response submissions, and did not consider at all the whole of the Applicant's response, such that the applicant has been denied procedural fairness.
Particulars of Ground 4
1. ss 31(2)(b)(ii) and 36(c) of the Act required the Adjudicator's determination to determine and to state the date on or before which the amount determined by him is to be paid.
2. Contrary to those requirements of the Act the determination did not determine or state the date on or before which the amount determined by the Adjudicator is to be paid.
3. Accordingly, that determination was not issued in compliance with ss 31(2)(b)(ii) and 36(c) of the Act.
4. Pursuant to s 31 of the Act, the Adjudicator was obliged to make his determination within the prescribed time, namely by 14 February 2013.
5. Pursuant to s 31(3) of the Act, if the application was not determined within the prescribed time, the application was to be taken to have been dismissed when that time had elapsed.
6. That time elapsed without a the Adjudicator having made a determination as so required by the Act, such that the Second Respondent's application was taken to have been dismissed under s 31(3) of the Act.
8 No appearance has been entered by the first respondent adjudicator but he has notified the parties, and through them the Court, that he will abide by any decision of the court and does not wish to be heard on this application.
9 Extensive materials have been adduced in evidence on the application by affidavit. They comprise the relevant contract documents; correspondence; other communications relating to the dispute over the claim for variations; the appointment of the adjudicator, the submissions to the adjudicator, communications from the adjudicator to the parties; evidence submitted to the adjudicator and his determination. They are to be found in the following affidavits:
(a) affidavit of Damien Michael sworn 22 February 2013 in support of the application (six volumes);
(b) further affidavit of Damien Michael sworn 13 March 2013 filed in support of the application;
(c) affidavit of Luke Hager sworn 5 March 2013 on behalf of the second respondent in opposition to the application;
(d) further affidavit of Luke Hager sworn 18 March 2013 on behalf of the second respondent in opposition to the application.
10 There are also further affidavits filed in support of the application to set aside the order nisi which was not pursued. These were not read on the application itself and need not be further discussed.
11 It is common ground that the second respondent, United Industries, was the party which applied for this adjudication pursuant to s 26 of the Construction Contracts Act 2004 . It did so by making an adjudication claim dated 17 January 2013 and the first respondent, Mr Ellis a person eligible, was appointed as an adjudicator by the Master Builders Association (WA) by letter dated 17 January 2013. Service of the application on the second respondent was effected on 17 January 2013, consequently, as the parties agree, the applicant Triple M was required within 14 days after the date of service of the application for adjudication upon it, to prepare a written response to the application and to serve it upon United Industries and upon the appointed adjudicator - s 27(1) in the circumstances this meant that Triple M's response had to be served and filed on or before 31 January 2013. By virtue of s 27(2) this response by Triple M:
(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, any rejection or dispute of the payment claim that has given rise to the 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.
12 Among the functions of an adjudicator specified by s 31 is the obligation, if served with a response under s 27(1), to dismiss or to determine the payment dispute within 14 days after the date of the service of the response. If a response is not served under s 27(1) which United Industries contends means either not served at all or not served within the 14 day period, the adjudicator must either dismiss the application or determine it within 14 days of the last date on which a response was required to be served. If an application is not dismissed or determined within the prescribed time or any extension of it made under s 32(3)(a) the application is to be taken to have been dismissed when the time has elapsed - s 31(3).
13 The adjudication procedure is prescribed by s 32 of the Act which, so far as is presently material provides:-
(1) For the purposes of making a determination, an appointed adjudicator -
(a) must act informally and if possible make the determination on the basis of:
(i) the application and its attachments; and
(ii) if a response has been prepared and served in accordance with s 27, the response and its attachments; and
(b) is not bound by the rules of evidence and may inform himself or herself in any way he or she thinks fit.
(2) In order to obtain sufficient information to make a determination, an appointed adjudicator may -
(a) require a party to make a, or a further, written submission or to provide the information or documentation, and may set a deadline for doing so;
…
(5) An adjudicator's power to make a determination is not affected by the failure of either or both of the parties to make a submission or provide information within time or to comply with the adjudicator's request to attend a conference with the adjudicator.
14 By s 41 the determination made by an adjudicator is final and the adjudicator cannot subsequently amend or cancel the determination except with the consent of the parties. Nevertheless, if the determination contains:
(a) an accidental slip or omission;
(b) a material arithmetic error; or
(c) a material mistake in the description of any person, thing or matter, the adjudicator on the application of a party or, after notifying the parties, on the adjudicators own initiative may correct the determination (s 41(2)).
15 Any determination made by an adjudicator under this Act is not binding or admissible in any civil proceedings which may be brought in a court between the disputing parties although an arbitrator or other person or a court or other body dealing with the matter arising under a construction contract must in making an award, judgment or order, allow for any amount that has been, or is to be paid to a party under an determination of a payment dispute arising under the contract and may make orders for the restitution of any amount so paid, and any other appropriate orders as to such a determination (s 46(4)) with regard to any such other civil proceedings. The Act prescribes by s 45:
1. This part does not prevent a party to a construction contract from instituting proceedings before an arbitrator or other person or a court or other body in relation to a dispute or other matter arising under the contract.
2. If other such proceedings are instituted in relation to a payment dispute that is being adjudicated under this Part, the adjudication is to proceed despite those proceedings unless all of the parties, in writing, require the appointed adjudicator to discontinue the adjudication.
16 This reflects a clear statutory policy that the remedy of adjudication leading to a determination under the Act is meant to be a quick, informal inexpensive remedy which may lead to practical relief being secured for the parties by a manner and within a time scale which will avoid major delays, efforts and expense being incurred in litigation and thus permit the performance of contracts to continue in the interest of contracting parties as quickly as possible. While the result of the determination will be binding on the parties and any order for payment made by an adjudicator may, by leave of the court s 43(2), be enforceable as civil judgment that will not constitute a final or binding determination of the legal rights of the parties. They can, if necessary or desired, be determined in subsequent civil proceedings in the ordinary way in due course. If that occurs, the effect of any determination made by the adjudicator must be taken into account and, if necessary, any adjustment, compensation or restitution can be ordered in those civil proceedings. It has been said that the primary aim of the legislation is to keep money flowing down the contractual chain. The Minister's second reading speech, when introducing this legislation in parliament in March 2004, included a passage:
When a party 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 contractual chain by enforcing timely payment and side-lining 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 the party is not satisfied, it retains it 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.
17 This expedient adopted by the legislation is well described in that passage and it is obviously designed to compromise between speed and economy and the more elaborate precision and certainty which is available under formal legal process. That it has been chosen and given this immediacy while nevertheless realising that it may be less than perfect in achieving justice according to law between the parties is a matter which leads onto other consequences and, in particular, a limitation and restriction upon the review of any determination by an adjudicator.
18 The limited rights of review permitted under the Act are described in s 46. They include a right to apply to the State Administrative Tribunal (SAT) but only respect of a decision made under s 32(2)(a) to dismiss an application without making a determination of its merits. This means that if an adjudicator wrongly dismisses an application without proceeding to an adjudication a way is open for the adjudication to take place under s 31(2)(b) within 14 days of the decision of SAT. Otherwise by s 46(3) a decision or a determination of an adjudicator cannot be appealed or reviewed. This is not regarded as an exclusion of judicial review – Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 but, as shall be seen, it is an indication that the structure of the Act regards reviews as limited and restricted. It will be necessary to consider this further.
19 Despite the length and detail of the particulars supporting the four grounds for review the essential contentions of the applicant can be summarised as follows:
(1) that the adjudicator denied Triple M procedural fairness and thereby made a jurisdictional error by declining to take into account all the documentation and submissions which Triple M had relied upon in its response for the purposes of the Adjudication
(2) that the adjudicator made a jurisdictional error in determining that materials included in Triple M's response had not been served upon him within the 14 day period required by s 27(1) notwithstanding that they had been transmitted to the adjudicator by electronic means on 31 January 2013 because he, the adjudicator, did not have the software or other available means to access all of them.
(3) The adjudicator made a jurisdictional error by failing to address the issue arising for determination on the payment dispute, namely the proper application of the construction contract terms, and instead resolved the dispute without regard to the contractual terms; and
(4) By omitting a material particular from his determination, this meant that the determination had not been made within the 14 day time limit required by s 31(2), with the consequence that, not being determined, the application by force of s 31(3) stood dismissed. This contention involves the further proposition that the adjudicator's subsequent correction of that omission was made out of time, or beyond power and was of no effect.
20 In order to consider these grounds it is necessary first to state in more detail the essential facts giving rise to the dispute and the determination and then to consider the scope of review of such an adjudication which is permitted by law as established by the applicable authorities.
The undisputed facts
21 The principal issue determined by the adjudicator which the applicant claims has led to a jurisdictional error is his determination that parts of the response by Triple M had not been served within the 14-day period prescribed by s 27(1) with the consequence that this material, which did become accessible to the adjudicator at the latest on 1 February 2013 - one day later - was entirely disregarded.
22 Triple M's response was transmitted to the adjudicator at the email address which he had specified as his address for service on 31 January 2013 - that is, within the 14-day time limit. However, the adjudicator did not have the software necessary to download those parts of the response termed the 'annexures' (which were quite voluminous). An electronic correspondence followed later on 31 January and 1 February which resulted in Triple M re-transmitting the response to the adjudicator in a different electronic format which the adjudicator could access and did so 1 February but, so he determined, too late for consideration.
23 The applicant points out in its affidavit evidence that the electronic format used to transmit the response and annexures to the adjudicator on the first occasion was a well known format frequently utilised and that for any user who did not at the time have a programme or protocol to access it there were reliable and respected applications available on the internet free of charge which could be downloaded and used to make the conversion and so access the information transmitted. Accordingly, in the submission of the applicant, this gives rise to a question of when the material was served upon the adjudicator, leading to the submission that by reason of s 14 of the Electronic Transactions Act 2011 the response of the applicant was received when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee and the addressee has become aware that the communication has been sent to that address. The applicant also further contends that by virtue of the adjudicator's obligation to determine the dispute fairly quickly, as set out in s 30 of the Construction of Contracts Act , and his obligation to make a determination 'if possible … on the basis of the application and its attachments and if a response has been prepared and served in accordance with s 27, of the response and its attachments', s 32(1)(a) and his power to request a party to make a further written submission or to provide information or documentation, as set out in s 32(2)(a), the adjudicator was obliged to have regard to the content of the electronic transmissions containing the applicant's response and attachments.
24 Whether these questions give rise to any matter capable of a review on this application, that is, whether or not they amount to any jurisdictional error, is a matter which necessarily requires careful examination. Before embarking on that examination it is necessary to state specifically the facts which the parties agree are established by the evidence.
The history of the dispute and the facts established
25 On 4 March 2012 Triple M and United Industries entered into a fixed price contract under which United Industries agreed to carry out work to provide insulation to airconditioning pipework for a major project, the Fiona Stanley Hospital. The contract was a fixed price contract for a fixed scope of works identified in the contract drawings. Those works were construction works within the meaning of the Act.
26 On 17 December 2012 United Industries issued a tax invoice to Triple M for $594,479.49 in respect of variations claimed under the contract. That claim was rejected by Triple M on 20 December 2012, with the result that a 'payment dispute' arose within the meaning of s 6 of the Act.
27 On 17 January 2013 United Industries made an application for adjudication of the dispute under the Act, serving a copy upon Triple M and a copy on the Master Builders' Association of Western Australia as a prescribed appointor under the Act. That was done under cover of correspondence dated 17 January 2013 by the solicitors for the second respondent, together with an application which disclosed as a contact/address in respect of United Industries: julian@unitedindustries.com.au. That same day the Master Builders' Association appointed the adjudicator pursuant to s 28 of the Act and provided to the parties details of addresses/modes of service, by which service on the adjudicator could be effected. The permitted addresses/modes of service included in the email address of the adjudicator was s.ellis@francisburt.com.au.
28 On 21 January 2013 the adjudicator advised the parties of his appointment and provided to them details of addresses/modes of service, by which service on him could be effected. Those permitted addresses/modes of service included the email address: s.ellis@francisburt.com.au.
29 In these circumstances, s 27 of the Act required Triple M's response to the application for adjudication and all information, documentation and submissions upon which Triple M relied in the adjudication to be served on the adjudicator and upon United Industries within 14 days after service on it of the application for adjudication, namely, by 31 January 2013.
30 Triple M contends now, as it did before the adjudicator, that on 31 January 2013 it served on the adjudicator and upon United Industries its response, comprising its submissions and attachments (as referred to in the submissions) on which it relied. At this point it becomes necessary to distinguish between Triple M's submissions and the attachments to the submissions ('the attachments'). It is common ground that the submissions were served upon the adjudicator within time. However, there is a contest between the parties as to whether Triple M served 'the attachments' on 31 January 2013.
31 With regard to the events which occurred on 31 January 2013 relating to this question, it is agreed that:
(a) Triple M sent 44 emails to the adjudicator and to United Industries which attached the attachments as '.rar' files (see determination at [15]).
(b) The adjudicator advised Triple M that he was unable to open those attached '.rar' files.
(c) Triple M then sent to the adjudicator and to United Industries further emails attaching as '.pdf' files, copies of its submissions which had been attached to its earlier emails as '.rar' files. Triple M also sent further emails to the adjudicator and to United Industries, which attached as 'Yousendit' files, copies of the attachments, which had been attached to its earlier emails as '.rar' files (determination [12] and [13]).
(d) At about 7.43 pm EST on 31 January 2013 the adjudicator asked Triple M for hard copies of the attachments to be sent to him in a 'paper copy'.
32 The sequence of events continued on 1 February 2013, the following day:
(a) At about 12.48 pm EST the adjudicator emailed Triple M asking when a 'hard copy' of the attachments would be delivered, and advising that he was able to download the 'Yousendit' files (adjudication [16]) but that they were not 'attached' to the relevant email to him.
(b) At about 1.32 pm WST United Industries received copies of the attachments and at about 1.40 pm WST the adjudicator received hard copies of the attachments (determination [17]).
(c) United Industries submitted to the adjudicator that the attaching of the '.rar' files and 'Yousendit' files did not effect service of the attachments on the adjudicator or Triple M.
(d) The adjudicator invited Triple M to make submissions to him by 5 pm on 6 February 2013 on whether he was able to take the attachments into account in his determination.
(e) On 6 February 2013 Triple M provided submissions to the adjudicator as requested, and on 7 February 2013 the adjudicator invited Triple M to make further submissions in relation to the service of the attachments. He asked for those further submissions to be provided by 11 February 2013. Triple M provided those further submissions as invited by the adjudicator, doing so on 11 February 2013.
(f) On 14 February 2013 the adjudicator made his determination and on 15 February 2013 the adjudicator provided that determination to the parties. The adjudicator found that the attachments had not been served on him on 31 January 2013, when attached to emails in '.rar' format and then later in 'Yousendit' format (determination [31] and [36]). In those circumstances the adjudicator found that he could not have regard to the attachments in his determination (determination [50]) and he decided the dispute accordingly. This decision by the adjudicator not to have regard to the attachments which Triple M claimed were part of its response and served within time is said to constitute a jurisdictional error.
Electronic Transactions Act 2011
33 The applicant relies on the following provisions of the Electronic Transactions Act 2011 :
8. Validity of electronic transactions
(1) For the purposes of a law of this jurisdiction, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications.
(2) The general rule in subsection (1) does not apply in relation to the validity of a transaction to the extent to which another, more specific, provision of this Part deals with the validity of the transaction.
9. Writing
(1) If, under a law of this jurisdiction, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where –
(a) at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) the person to whom the information is required to be given consents to the information being given by means of an electronic communication.
(2) If, under a law of this jurisdiction, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where -
(a) at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) the person to whom the information is permitted to be given consents to the information being given by means of an electronic communication.
(3) This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring or permitting information to be given, in accordance with particular information technology requirements -
(a) on a particular kind of data storage device; or
(b) by means of a particular kind of electronic communication.
…
34 and s 14:
14. Time of receipt
(1) For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication —
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both —
(i) the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii) the addressee has become aware that the electronic communication has been sent to that address.
(2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
…
35 There was nothing in the contract nor in the parties' dealings with the adjudicator to suggest that these provisions of the Electronic Transactions Act did not fully apply.
Further grounds of review
36 The third and fourth grounds of review advanced by Triple M allege the commission of jurisdictional errors of a different kind. The third ground contends that the adjudicator misdirected himself and posed for resolution the wrong question, so committing an error of the kind referred to in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 where their Honours said:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
37 The error alleged to have been committed by the adjudicator is the mode of approach taken towards the determination of the value of the claim for variations being advanced by United Industries in the payment dispute. This requires some explanation.
38 In this regard, Triple M refers to the contract (pages 1 to 6 of the affidavit of Damien Michael sworn 27 February). As already stated, this confirms that the engagement was on a lump sum contract for $2,900,000 plus GST and that 'variations shall be priced against the provided Schedule of Rates'. Without descending into intricate detail, the contention of Triple M is that neither in its claim for variations nor in the submission to the adjudicator did United Industries base or measure its claim for variations on the schedule of rates attached to the contract. Rather, according to Triple M, United Industries adopted a different approach, calculating and submitting its claim of variations by reference to the value of the work done on the variations, calculated in a manner utilising assumptions of the value of comparable work in its original quotation.
39 The evidence and findings in this regard are intricate but it seems reasonably clear that the claim for variations was not computed according to the contract schedule of rates. Indeed, all the evidence before the adjudicator on this question approached the valuation on a different footing largely, it would seem, because the subcontract works as prescribed in the contract were, from an early stage of the works, changed so radically that an altogether different method of determining value became a practical necessity. At least that was the tenor of the evidence before the adjudicator and the method of valuation of the independent examiners engaged to report for United Industries.
40 The adjudicator followed that method and made his determination accordingly. It is not possible to tell from the materials now available to the court whether it would have been feasible in all the circumstances to adopt a method of valuing the variations by reference to the schedule of rates. It does appear, however, that the contracting parties by express or implied consent or by acquiescence adopted a method of construction which departed from the contract terms dealing with variations and which lead to this different approach to determining values. In the written submissions by Triple M to the adjudicator another approach to valuation at variance with the Schedule of Rates method was advanced.
41 This is the setting in which it is necessary to determine whether or not it has been established that the adjudicator made a jurisdictional error in proceeding with the method chosen by him for determining the value of these variations.
42 The fourth set of the grounds of review contends that the adjudicator failed to complete an essential part of his adjudication within the 14-day time limit prescribed by s 31(2)(b), that is within 14 days after the last date upon which a response is required to be served under s 27(1) failing which the application is taken to have been dismissed - s 31(3). The alleged omission in the determination of the adjudicator is said by the applicant to be a failure to state the date on or before which the amount determined to be payable should be paid - a requirement said to be mandatory by reason of s 36(c) of the Act. In fact, the adjudicator subsequently 'corrected' that omission by amending the terms of his order of 17 January 2013 to provide that the amount determined to be payable should be paid that day. This correction was made on 15 March 2013 pursuant to s 41(2) of the Act. The amended determination, under cover of a letter from the first respondent of 15 March, is to be found in the affidavit of Mr L Hager sworn 18 March 2013.
43 Both the applicant and the second respondent rely on s 41 of the Act in support of their rival submissions that the adjudicator could, or could not, make that correction to his determination. That section provides:
41. Determinations are final
(1) If on the adjudication of a payment dispute the appointed adjudicator makes a determination -
(a) the adjudicator cannot subsequently amend or cancel the determination except with the consent of the parties; and
(b) a party to the dispute may not apply subsequently for an adjudication of the dispute.
(2) Despite subsection (1)(a), if an adjudicator's determination contains -
(a) an accidental slip or omission;
(b) a material arithmetic error; or
(c) a material mistake in the description of any person, thing or matter the adjudicator, on the application of a party or, after notifying the parties, on the adjudicator's own initiative, may correct the determination.
44 In the present case, the adjudicator notified the parties of his intention to correct the omission of the date for payment for the amount determined before making that correction on 15 March 2013. Accordingly, the question raised by this ground is whether or not it was competent for the adjudicator to make that alteration and, if not, whether the consequence is that there had been a failure to make a determination within time with the result that the application for determination was deemed to have been dismissed.
Time for serving a response - s 27(1)
45 An important issue raised by the application is whether or not the adjudicator had the power, whether by discretion or otherwise, to consider a response or parts of a response served upon him after the expiration of the 14-day time limit prescribed by s 27(1). The adjudicator held that he had no power to consider a response or any part of a response which was served upon him after the expiration of that 14-day time limit. His reasons for this were: first, that s 27(1) provides that the written response 'must' be served within the 14-day period and, by s 27(2), the response 'must' have set out or attached to it all the information, documentation and submissions on which the party making it relies in the adjudication. Second, while s 32(3)(a) confers a power to extend the time limit for making a determination by the adjudicator with the consent of the parties, there is no express power enabling the time limit for making an application under s 26(1) or serving a response under s 27(1) to be extended. The adjudicator also drew attention to provisions of the Act and decisions of this court which establish that the requirements for making an application and dealing with it are strict - Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 where McLure P at [16] said:
For example, timetables cannot be ignored (as is the norm with the procedural rules and orders made by a court) without immutable adverse consequences.
46 The adjudicator also applied the decision of Le Miere J in Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [2012] WASC 129 where, when dealing with the question of whether or not the time under s 27(1) could be extended his Honour said at [8]:
The section does not expressly state the consequences of a respondent not serving its response within the prescribed time. The Act provides a rapid adjudication process. The object of s 27(1) is to ensure the adjudication proceeds rapidly. Section 31(2) provides, in effect, that an adjudicator must either dismiss the application or make a determination within the period expiring 14 days after the date of the service of the response unless that time is extended under s 32(3)(a). Karara concedes that an adjudicator may be entitled to ignore a response served after the expiry of the 14-day period, if it is served at a time when the adjudicator has insufficient time to consider the response and make his determination within the prescribed time. However, the requirement for rapid resolution is not frustrated by the adjudicator considering a response served upon him after the expiry of the 14-day period but before he has made his determination, and at a time when he still has sufficient time to consider the response and make his determination within the prescribed time …
In all the circumstances, it is arguable that whilst an adjudicator may be entitled to do so, he is not obliged to ignore a response served upon him after the expiry of the 14-day period specified in s 27(1) of the Act.
47 The adjudicator treated these observations as obiter dicta as, indeed, they were because Le Miere J was not required to express any final view on that issue. By contrast, Gething C in Witham v Raminea Pty Ltd [2012] WADC 1 held that s 27 does not allow an adjudicator a discretion to consider a response prepared and served otherwise than in accordance with s 27. That decision, while obviously entitled to careful consideration and respect, is not binding on this court.
48 I referred to these decisions when granting the order nisi to review in the present case, Triple M Mechanical Services Pty Ltd v Ellis [2013] WASC 67 [16] - [18] and observed that it seemed that the question is arguable. I then observed that, having regard to the scheme of the Act, and the need to conduct proceedings informally and fairly, the adjudicator had considered himself bound to disregard the annexures to Triple M's submissions and so may have fallen into a situation where there was a jurisdictional error and a failure to provide procedural fairness.
49 However, when the Karara Mining Ltd case came on for final determination before Le Miere J his Honour revisited this issue and decided that s 27(1) does not require the adjudicator to consider a response filed out of time: Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [No 2] [2013] WASC 59. His Honour accepted the view expressed in Witham v Raminea Pty Ltd that the Act does not confer on the adjudicator a discretion to extend the time for a respondent to file its response. His Honour said:
[21] The words of s 32(1)(a) are emphatic: the adjudicator must 'if possible' make the determination on the basis of the application and the response. The words 'if possible' make it obligatory for the adjudicator to proceed to his or her determination after receiving the application and the response. If no response had been received then the adjudicator must proceed to make his or her determination after the time for service of the response has expired. In s 32 of the Act 'if possible' refers to when an adjudicator is capable of making a determination consistent with the requirements of the Act and the law. That would require the adjudicator to have sufficient information to make an informed, rational decision.
[22] It may be putting it too highly to say that the adjudicator is obliged, in all the circumstances, to ignore a response received out of time. There may be circumstances in which an adjudicator who received a response out of time might properly have regard to the material in the response in making his or her determination. Section 32(1)(b) provides that the adjudicator may inform himself or herself in any way he or she thinks fit. Section 32(2) provides that in order to obtain sufficient information to make a determination, an adjudicator may, amongst other things, request a party to make a, or a further, written submission or to provide information or documentation. That does not mean that an adjudicator who receives a purported response out of time is obliged to consider the material in the response before making a determination. The adjudicator is not exercising a discretionary power to extend the time for the service of the response and hence the adjudicator is not bound to consider the cogency of the material and the purported response or questions of delay, explanation for delay and prejudice. To require the adjudicator to carry out such a task is contrary to the scheme of the Act which provides for a quick, informal, inexpensive and provisional determination of the dispute. The determination is provisional in the sense that an applicant or respondent may institute proceedings before an arbitrator or a court which will finally determine the dispute.
50 On the different but related question of whether or not a payment claim made later than the 28-day time limit after the dispute arises prescribed by s 26 was ineffective, McKechnie J held that it was ineffective DPD Pty Ltd v McHenry [2012] WASC 140. There his Honour reviewed the applicable authorities and considered and applied the principles set out by the Court of Appeal of the Northern Territory in K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd [2011] NTCA 1 where Southwood J held that the condition of applying for an adjudication within the statutory time limit was an essential pre-condition to an adjudicator's jurisdiction to determine the application on the merits. The reasons contained in that judgment provide a convincing basis for treating other time limits for compliance set by the Act, where there is no provision for an extension of time, as similarly essential.
51 Having regard to these considerations, I am of the view that s 27(1) has the effect that only a response served upon an adjudicator within the 14-day time limit need be considered by the adjudicator when making his determination. However, I agree with Le Miere J that there may be occasions in which an adjudicator may decide, for good and sufficient reason, that he or she ought to take into account a response, or part of a response, received out of time if that can be done without jeopardising the adjudicator's obligation to make his determination within a further 14 days or in circumstances where, with the consent of the parties, the adjudicator extends the time for making his determination.
52 To admit that, in particular circumstances, a late response or part of a late response may be received and considered by an adjudicator does not mean that the adjudicator is obliged to do this in any particular instance or that a failure to do so constitutes an error of law, whether a jurisdictional error or a failure to provide procedural fairness. The requirements of procedural fairness in this setting are fixed by the Act itself and the emphasis on informality and despatch, coupled with the acknowledgement that the determination by the adjudicator while having legal effect in the sense of being enforceable with leave of the court, still remains provisional and permits any aggrieved party to bring proceedings at law or by arbitration, enhance that conclusion. Accordingly, I am satisfied in the present case that there is no error of law established by the adjudicator determining that he should not take into account any part of Triple M's response which was served after 31 January 2012. Of course, this leaves open the question of whether, indeed, any part of the response was actually served late.
Were the 'attachments' to Triple M's response served late?
53 The chronology of the electronic transmissions between Triple M and the adjudicator on 31 January and 1 February 2013 have already been set out. It is the case that the whole of the applicant's response, including the attachments, were transmitted to the adjudicator's stated email address on 31 January 2012 - that is, within time. It is also acknowledged that the adjudicator received and accessed the submissions forming part of the response that day. However, the adjudicator could not access the attachments as they were then in '.rar' format and later in 'Yousendit' format. It was not until the next day - the 15th day - that the adjudicator was able to access those attachments.
54 The adjudicator dealt with the question of the time of service at [19] to [38] of his determination. Essentially, the adjudicator concluded that the parties had by implication agreed to electronic communications but concluded that s 9 of the Electronic Transactions Act was not satisfied. In that regard, the adjudicator said:
[25] However, it is not clear that par 9(2)(a) is satisfied in respect of the attachment emails. In my opinion, in order for the respondent to rely on s 9 of the Act, it is necessary for the respondent to establish that, at the time the information contained in the emails was given, it was reasonable to expect that the information would be readily accessible. I consider that this test applies to the substantive information given by email. It is not sufficient for the respondent to establish, in the present case, that it was reasonable to expect that the text of the attachment emails was readily accessible, if the substantive information to be provided, ie, the attachments themselves, was contained in attachments and it was not reasonable to expect that the attachments were readily accessible.
[26] In the present case, I was not able to access the attachments to the emails. I also accept that the applicant was not able to access the attachments to the emails because the letter of 1 February 2013 stated that the emails were encrypted and could not be opened. It appears that the attachments were not 'encrypted' but were compressed so as to reduce the size of the attachment. In practical terms, the difference is not great. A compressed file cannot be read unless the person to whom the file has been sent has the necessary decompression software. The attachments were not accessible to the applicant or me, so as to be usable for subsequent reference or at all.
55 And further:
[28] It may be that it was reasonable to expect that the attachments would be accessible, notwithstanding that the applicant and I were not, in fact, able to access the documents. I have no information about the software used by the applicant, but for my own part, I used the standard suite of Office software produced by Microsoft. That suite includes some decompression software, which works on files with the suffix '.zip'. The Microsoft Office 'suite' of products is widely used. I would be prepared to assume that it is reasonable to expect that an attachment accessible using the 'Office' suite of products or Adobe Acrobat would be accessible for the purposes of s 9(2) of the ETA. The fact that I was not able to access the attachments provides some evidence that it was not reasonable to expect that the information would be readily accessible. Further, the respondent did not provide any information about the compression software that was used to prepare the attachments or about the decompression software necessary to gain access to the attachments and in particular, about how widely used that software is and whether it can be regarded as 'standard' software.
[29] On the basis of the material before me, I am unable to conclude that it was reasonable, at any time, to expect that the attachments were readily 'accessible so as to be usable for subsequent reference'.
56 By contrast, the applicant submits that by virtue of s 14 of the Electronic Transactions Act the time of receipt of the attachments sent by '.rar' and 'Yousendit' is not when the information in those attachments was actually received by the adjudicator but when the information was 'capable of being retrieved' at the email addresses of the adjudicator and of United Industries. The submission proceeds that whether the information was to be retrieved by downloading .pdf, .rar or other files or by the 'Yousendit' link is irrelevant. According to the applicant, the test is not dependent on where the information resides but upon whether it can be retrieved. The applicant submits that it could have been retrieved at the time of receipt of the email in which the link was embedded. Reliance is placed on s 14(2) of the Electronic Transactions Act for the proposition that 'it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address'.
57 According to the applicant, Triple M's submissions to the adjudicator and to the second respondent in which the 'Yousendit' attachments were embedded, together with the attachments themselves, reached the recipient's electronic addresses on 31 January 2013. The fact that the attachments were to be retrieved from another address via the click-on link in the email did not, according to the submission, delay or prevent service. Triple M submits that having found, contrary to the facts, that the attachments were not served on him by 31 January 2013, the adjudicator concluded in error that he was not permitted to have regard to the attachments which he found, so it is submitted wrongly, were only served on 1 February 2013 both by the 'Yousendit' files and by hard copy. As a consequence, it is submitted that the adjudicator failed to make his determination as required by s 32(a) of the Act and thereby fell into jurisdictional error. It is submitted that the attachments were critical to the matter to be determined by the adjudicator; that they were referred to in the responsive submissions; and that they provided the evidence and support for those submissions.
58 The response of United Industries is to support the reasons of the adjudicator and by submitting that it was not 'reasonable to expect' that Triple M's response 'would be readily accessible' as contemplated by s 9 of the Electronic Transactions Act when neither the adjudicator nor United Industries could access the information. The submission is that to contend that it is reasonable to expect that the information would be readily accessible would be to set the threshold of service at too low a level. The difficulty with this submission is that there is little in the evidence to support it other than the stated inability of the adjudicator and of United Industries to access the compressed annexures in the electronic formats in which they were first transmitted. On the other hand, the evidence in support of the present application is to the effect that there are reliable, commercially available applications readily accessible free of charge which would have allowed the adjudicator to download the information.
59 In further support of its submissions in this regard, Triple M refers to the following authorities. Premium Grain Handlers Pty Ltd v Elite Grains Pty Ltd [2005] WASC 103 examined, among other things, when it should be concluded that a message transmitted by facsimile was received. In that case, at [69], McKerracher C held that once a facsimile is received on a facsimile machine it is not unreasonable to treat it as having been delivered to the principal. The learned Commissioner referred to Jalun Pool Supplies Pty Ltd v Onga Pty Ltd [1999] SASC 20 [18] where Debelle J said:
… once the message has been received on the recipient's machine, it is not unreasonable to treat it as delivered because it is the recipient's responsibility to monitor and clear his machine: Brinkibon Ltd v Stahag Stahl GmbH [1983] 2 AC 34 per Lord Fraser at 43. For example, the message will be stored electronically, even if the facsimile machine has run out of paper. Once it has been refilled with paper and reactivated, it will print messages which have been electronically stored. The sender should not be penalised because of a failure by the recipient to monitor his facsimile machine in a satisfactory way.
60 Of course, technology has moved on since the salad days of the facsimile and an electronic message, whether encrypted or compressed and requiring manipulative software to download and allow it to be read, involves a level of complexity beyond these observations which were made with a facsimile machine in mind.
61 A consideration of the adequacy of delivery of documents by electronic means was undertaken by the Land and Environment Court of NSW in Tugun Cobaki Alliance Inc v Minister for Planning and Roads and Traffic Authority NSW [2006] NSWLEC 396. There Jagot J at [103] to [116] reviewed the adequacy of delivery of a document by electronic means under certain enabling provisions in the Environmental Planning and Assessment Act (NSW) which are not directly similar to the provisions of the Electronic Transactions Act relied upon here by the applicant. Nevertheless, the reasoning adopted by Jagot J in Tugun Cobaki Alliance is to the effect that the requirement to give reports in that legislation should be construed as 'cause or allow to have' or to 'make available' rather than to 'physically deliver' (see [110]). At [112] his Honour said:
If the Director-General's report can be given electronically by any of the methods I have described above, it suggests that the documents to be included in that report can be included by electronic link or, as here (and in accordance with my findings below), by reference in a hard copy report to a website where an electronic copy of the document is available, if that accords with arrangements the Minister indicated were appropriate.
62 None of these authorities is exactly in point and none deals with the situation which has arisen here where some programme, application or decompression device, not included with the electronic transmission, is necessary to allow access to the contents of the transmission in a comprehensible fashion. Nevertheless, as the adjudicator himself acknowledged, there are many well-known applications in the Microsoft suite of programmes which can be used to access compressed files, the use of which the adjudicator plainly considered was reasonable in this setting.
63 It seems that there is a lot to be said for the contention that transmission of the electronic response, including the attachments in compressed format, resulted in service of all those materials upon the adjudicator within the 14-day time limit required by s 27(1). I also consider that there is much to be said for the view that it was objectively reasonable to expect that the information would be readily accessible to the adjudicator so as to be usable for his subsequent reference immediately upon that transmission. Yet whether this is so or not is essentially a question of fact and one which needs to be determined on the evidence. There was no evidence before the adjudicator about the availability of other programmes or applications to download the '.rar', '.pdf' or 'Yousendit' compressed files other than the adjudicator's inability to use them or his ignorance of their existence or availability. It was that which was the basis of the inference that the information was not readily available.
64 I have considerable misgivings over whether or not that conclusion by the adjudicator was correct and also about whether or not there was sufficient evidence to support it. Nevertheless, it was a decision which needed to be made by the adjudicator to discharge his obligation to make a determination and hence was one within his jurisdiction. If I were to conclude that the decision was wrong, that would not dispose of the issue. However, I do not consider that such a conclusion (or its converse, namely, that the decision was right) can be satisfactorily reached on the materials now before the court. Taking the approach more favourable to the applicant that the decision was wrong, the question becomes whether or not that amounts to a jurisdictional error or a denial of procedural fairness so as to render the determination capable of review on this application.
Extent of judicial review available for an adjudication
65 The examination of the issues raised by this application so far raises for determination the following questions:
(a) whether a putative error by the adjudicator in concluding that he had not been served with the whole of the applicant's response and attachments by 31 January 2013 whereas, in fact, those materials were accessible to him by electronic means if utilising commercially available software in common use, amounts to a jurisdictional error or a denial of procedural fairness;
(b) whether addressing the issue of the quantification of United Industries' claims for variations under the contract not by reference to the schedule of rates as specified in the contract but by a different method of estimation adopted by the various experts whose evidence was before the adjudicator amounted to a jurisdictional error; and
(c) whether the correction by the adjudicator on 15 March 2013 of the adjudication by inserting the date upon which the amount determined was payable was a permissible exercise of the powers conferred by s 41(2) or whether by then his function was at an end and the omission of the date for payment meant that there had been no determination within the prescribed time, resulting in a deemed dismissal of the application. This too gives rise to the question of whether or not it has been established that there has been a jurisdictional error by the adjudicator.
Review for jurisdictional error
66 In support of its contention that the adjudicator made a jurisdictional error by determining the value of the variations claimed not by reference to the contract and the schedule of rates method which it prescribed but by employing the valuation estimates of assessors who had been engaged to value the works, the applicant relied up Halkat Electrical Contractors Pty Ltd v Holmwood Holdings Pty Ltd [2007] NSWCA 32, a decision of Giles, Santow and Tobias JJA involving a challenge to an adjudication made under the Building and Construction Industry Security of Payment Act 1999 (NSW). In upholding a decision of a single Judge that the adjudicator's decision did contain jurisdictional error, Giles JA, with whom the other Judges agreed, said at [26]:
Section 22 of the Act required that the adjudicator determine an adjudicated amount (s 22(1)) by considering particular matters (s 22(2)). The adjudicator had to make a determination, and he did not make a determination if he arrived at an adjudicated amount by a process wholly unrelated to a consideration of those matters. But that is what the adjudicator did. He stated expressly in his reasons that he did not have evidence on which he could independently arrive at the value of the completed work, and that he adopted the appellant's valuation in preference to that of the respondent because of the respondent's unmeritorious challenges to the validity of the payment claim. On the face of the determination, the adjudicator simply did not perform the task required by the Act … The adjudicator did not comply with an essential precondition to the existence of a valid determination.
67 The court held that the adjudicator had failed to comply with the provisions of s 22(2)(b) of the NSW Act which required that in determining an adjudication application the adjudicator 'is to consider the following matters only … (b) the provisions of the construction contract from which the application arose'. The learned trial judge held, and the Court of Appeal affirmed, that such a failure 'is jurisdictional error, resulting in invalidity of the determination'. His Honour considered that the adjudicator had not made a 'mere error in consideration of the provisions of a contract, but had failed to consider a relevant provision at all'.
68 In further support of this submission counsel for the applicant relied on Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 546, a decision of Einstein J dealing with objections to adjudication determinations made pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW). One of the grounds for challenging the determinations was an allegation of a failure to comply with the requirements of procedural fairness in that the adjudicator had determined the dispute on a basis which had not been raised by the parties or disclosed to them. This case also concerned the question whether or not non-compliance with the requirements of procedural fairness could be disregarded if it could be established that compliance with them could have made no difference to the relief due. In doing so, the court considered the decision in Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399 where McDougall J analysed the requirements of the entitlement to natural justice in this setting in the manner in which the Court of Appeal expressly approved, and in the course of which the following passage from the judgment of McDougall J was cited with specific approval:
[43] Ms Culkoff submitted that the test for denial of natural justice was that described by me in John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd (2006) 66 NSWLR 707. Referring to what I had said earlier in Musico v Davenport [2003] NSWSC 977 at [107], I said (in John Goss at [31]) 'that where an adjudicator was minded to decide a dispute on a basis for which neither party had contended, then natural justice required the adjudicator to notify the parties of that intention, so that they could put submissions on it.' I adhere to that view. However, as I pointed out in John Goss at [42], 'the concept of materiality is inextricably linked to the measure of natural justice that the Act requires parties to be given in a particular case'. By that I meant, as I said, that the principles of natural justice could not … 'require an adjudicator to give the parties an opportunity to put submissions on matter that were not germane to his or her decision'.
69 Counsel also referred to Parkview Constructions Pty Ltd v Sydney Civil Excavations Pty Ltd [2009] NSWSC 61, a decision of Brereton J in a case seeking a declaration that an adjudication of determination made under the Building and Construction Industry Security of Payment Act 1999 was void. A question for determination in that case was whether an alleged error by the adjudicator was of such a character as to render the adjudication void. The respondent maintained that a reasonable but erroneous decision by an adjudicator would not invalidate the determination and Brereton J referred to a number of cases supporting that proposition, including Co-ordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 299 [24] - 26] (Hodgson JA) and [42] (Basten JA) and Downer Construction (Australia) Pty Ltd v Energy Australia [2007] NSWCA 49; (2007) 69 NSWLR 72 where at [87] the Court said:
In my opinion, determination of the parameters of the payment claim is a matter for the adjudicator and a reasonable but erroneous decision by the adjudicator does not invalidate the determination. In the present case, in determining the amount of the progress payment (if any) to be made it was for the adjudicator to decide whether the water ingress fell within latent conditions for the purpose of the contract, and the parameters of the payment claim in that respect. He did so. As to both, it could not be said that the adjudicator's decision was without foundation, and if the adjudicator addressed the matters and came to his decisions, even if other decisions could have been come to, he did what the Act required – he determined the adjudicated amount. As was stated in Minister for Commerce v Contrax Plumbing (NSW) Pty Ltd [2005] NSWCA 142 [49]:
' … an error of fact or law, including an error in interpretation of the Act or of the contract, or as to what are the valid and operative terms of the contract, does not prevent a determination from being an adjudicator's determination within the meaning of the Act.'
70 Nevertheless, counsel for the applicant relied on the Parkview Constructions case for its approval of the passage of the judgment of Hodgson JA in Co-ordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd [2005] NSWCA 228; (2005) 63 NSWLR 385 [53] where his Honour said:
Indeed, my tentative view is that, if an adjudicator determined the progress payment of the amount claimed simply because he or she rejected the relevance of the respondent's material, this could be such a failure to address the task set by the Act as to render the determination void.
71 This passage was relied on because the applicant submitted that in determining the quantum of the variation claim in the present case the adjudicator had rejected or ignored Triple M's submissions (unsupported by material in the attachments which were disregarded being late) and therefore accepted the quantification evidence of United Industries' witnesses without having regard to whether or not the methodology employed by those witnesses satisfied the test for determining variations as contained in the contract.
72 However, I do not consider that these criticisms can justly be levelled at the approach taken by the adjudicator. In his determination at [84] the adjudicator directly addressed three specific issues relied upon by Triple M, namely, that United Industries failed to comply with the requirements of the contract about making claims for variation work; secondly, that the calculation of the additional work should be made by reference to the price for the work rather than the applicant's tender calculations; and thirdly, that on a proper assessment of the amount of work the claim is excessive. The adjudicator then referred to the contractual requirements. Then, for reasons which relied on extensive dealings and correspondence between the parties at the early stage of the contract, he concluded that Triple M must be treated either as having waived compliance with those contractual provisions or as being stopped from relying upon them [88]. Similarly, the adjudicator specifically addressed the applicant's argument that the calculation for payment of additional work should be made by reference to the contract price for the work rather than to the applicant's tender calculations [92]. As to this, the adjudicator said at [92]:
I do not accept this argument. The issue for determination is the value of the additional work to be done. This is to be calculated by reference to the value of the work which was originally within the scope of the contract, compared to the value of the work which had to be done. The fact that the applicant gave a price of $1,099,419 for the job does not mean that that was the value of the work originally included in the scope of the contract. The applicant may have included a component in the contract for profit over and above the 'value' of the original work. Alternatively, the applicant may not have calculated the $1,099,419 price using the schedule of rates to be used in calculating variations.
73 I acknowledge that there may be considerable scope to examine whether or not those findings and that reasoning of the adjudicator amounted to a correct construction of the terms of this contract and whether or not they did support the basis of valuation advanced by United Industries and accepted by the adjudicator. It is possible, although it is unnecessary for me so to conclude, that there may be an error or errors of law apparent from the approach taken. However, what is obvious is that the adjudicator did directly address the issues which had been raised by Triple M, and which it relies on in the present application to establish jurisdictional error by reason of their alleged neglect, and made a determination of them according to a process of reasoning which he set out. Consequently, even if the conclusions were erroneous in law, they do not appear to me to constitute a failure to address the task which the adjudicator was required to perform or to be more, at the most, than a reasonable but erroneous decision on a matter which was properly before the adjudicator and which required his determination.
74 Counsel for Triple M also relied on the decision of Sakar J in Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 to support the proposition that a failure to address necessary requirements when conducting an adjudication would amount to a jurisdictional error. It is unnecessary for me to examine that decision because I accept that proposition but I do not consider that it has been transgressed in the present case.
75 In the present case to justify intervention by this Court in the adjudication by the first respondent it is acknowledged by counsel for Triple M that a jurisdictional error or errors must be established. A non-jurisdictional error of law will not suffice. This is not an occasion in which error of law on the face of the record will justify a review - Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217. There may certainly be errors of law which would justify judicial review of administrative action as described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 in the well-known passage of Mason J at [39] - [40] and in the equally well-known passage of Brennan J in Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 [77]. See also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 - 356 (Mason CJ) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. The term 'jurisdictional error' was examined in Craig v South Australia , as already noted, and in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 143 [163] where the court said:
The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision-maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, so decide matters within jurisdiction incorrectly.) The former kinds of errors concerns departures from limits upon the exercise of power. The latter does not. The matter was discussed further in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 232 [82].
76 In the course of an extensive examination of the proper identification of review for jurisdictional error in Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531, 569 - 575 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said, in amplification and explanation of what the High Court had earlier said in Craig at [72]:
Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples :
(a) the absence of a jurisdictional fact;
(b) disregard of a matter which the relevant statute requires be taken into account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
(c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.
The Court said of this last example that 'the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern' and gave examples of such difficulties …
77 See also Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [37].
78 It becomes necessary to consider whether any of the alleged shortcomings in the adjudication conducted by the first respondent or in the procedure adopted which led to that determination constitutes a jurisdictional error which would justify intervention by this court.
79 I agree, with respect, with the observations of Le Miere J in Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [No 2] [2013] WASC 59 [5] - [6] where his Honour observed that a determination made pursuant to s 31(2)(b) of the Construction Contracts Act 2004 , such as occurred in the present case, can be challenged by judicial review: Perrinepod Pty Ltd v Georgiou Building Pty Ltd [1], [7] - [8], [92] and [95], but the position of an adjudicator making such a determination resembles more that of an inferior court than an administrative tribunal for the purposes of certiorari : Perrinepod [1] and [118]. Consequently, a determination under this Act is not amenable to judicial review for non-jursdictional error of law: Perrinepod [1] and [118]. For examples of this distinction and of instances where certiorari or review is available only for jurisdictional error, see also Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [14] and Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [110].
80 In Ex Parte McCourt Martin CJ, when speaking of the distinction between jurisdictional error and an error within jurisdiction said:
There will consequently be a jurisdictional error only if the Administrative Tribunal make a decision outside the limits of the functions and powers conferred on it, or if it does something which it lacks power to do: Re Refugee Review Tribunal; Ex Parte Aala (supra) at [163] per Hayne J.
There will be no jurisdictional error if all the Tribunal has done is to decide something which it is authorised to decide, incorrectly. In Craig at [177] - [178] the High Court identified five categories of jurisdictional error in this narrower sense. They are not exhaustive: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ. They are conveniently summarised by McLure JA in Carey (at [181]) as follows:
'First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the Court has jurisdiction to entertain. Fourth, jurisdictional error will occur where and inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or [sic] the function which it is performing or the extent of its powers in the circumstances of the case.' [16]
81 As stated earlier, Le Miere J decided in Re Graham Anstee-Brook; Ex parte Karara Mining [No 2] that the adjudicator had made no error of law in failing to have regard to a response served upon him after the 14-day period specified by s 27(1). His Honour observed further that even if he had made an error in failing to have regard to the applicant's response, it would not have been a jurisdictional error. His Honour held that the adjudicator did not misapprehend or disregard the nature or limits of his functions or powers; did not misconceive the nature of the function which he was performing or the extent of his powers in the circumstances of the case as a result of misconstruing the Act. His Honour pointed out that in Perrinepod the Court of Appeal had held that the matters specified by s 312)(a) are jurisdictional 'facts' which condition the lawful exercise of a function committed to an adjudicator under s 31(2)(a) but that, by contrast, the Act does not condition the power of the adjudicator to make a determination on the service of a response or by the consideration by the adjudicator of a response. It is true that in that particular case the response which was filed was filed late and, therefore, need not have been considered by the adjudicator. Still the language employed by his Honour suggests that it was not a condition of the adjudicator's power of determination that he consider a response filed within time despite, as noted earlier, that s 32(1)(a)(ii) requires the adjudicator for the purposes of making a determination to act informally and if possible to make the determination on the basis of the application and its attachments and if a response has been prepared and served in accordance with s 27 the response and its attachments.
82 The significance of the words 'if possible' in this setting has, as earlier mentioned, been taken as an indication of a requirement to consider a response if one is filed in time or even to allow an adjudicator to consider a late response if, in doing so, that will not delay the completion of his determination within the prescribed timetable. It is, of course, possible that, as here alleged, an error or mistake may be made by an adjudicator in deciding when a response was actually served, but I do not consider that s 32(1) read in its entirety carries with it any meaning or implication that an erroneous decision that a response was filed late when in fact it was filed in time means that there has been a jurisdictional error or that the adjudication can be set aside.
83 Obviously, when determining what are the materials or information upon which the adjudicator's determination should be based, it will be necessary for the adjudicator to decide what those materials are and whether they were filed in time to be taken into consideration. Making a decision of that kind is part of the performance of the role of an adjudicator and a decision within jurisdiction because it forms part of the task to be performed. If it emerges that the decision was made wrongly it remains, in my opinion, a decision within jurisdiction even though its consequences, as here, may be to exclude material which the Act contemplates would be taken into account. The decision to exclude that material in such circumstances was not made because its potential relevance has gone unrecognised or because no appreciation is made of the significance attached to such material in the statute itself but, rather, because of the mistaken decision, made within jurisdiction, about the time when the material was served. As in the present case, that may be an error of law and one with significant consequences, but I do not consider it to be a jurisdictional error.
84 A similar approach to the recognition of jurisdictional error was adopted by Pritchard J in Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304. By reference to the policy which the Construction Contracts Act is intended to advance, namely the rapid adjudication process undertaken in order to keep money flowing in the contracting chain and involving a trade-off between speed and efficiency on the one hand and legal precision on the other, her Honour observed at [58]:
These considerations suggest that, in assessing whether an adjudicator has made errors of a kind which would render a determination invalid, it would be entirely inapt to engage in a 'line by line' scrutiny of a determination. To do so would be to risk descending into a merits review of an adjudicator's determination. Further, an approach of that kind would have the potential to undermine the objectives of the CC Act to facilitate an informal and speedy means for resolving payment disputes between parties to construction contracts, while preserving the right to litigate or arbitrate about any substantive areas of dispute underlying those payment disputes.
85 Admittedly, this does not answer the question which has arisen in this case but it outlines an approach to the determination of a characterisation which I consider is correct and should be followed.
86 The Cape Range Electrical Contractors case included an examination of whether or not it had been established that an initial jurisdictional fact, namely, the preparation and service of an application in the manner and within the time prescribed by s 26 had been established. Close attention was, therefore, paid to the approach to be followed when determining whether or not such a jurisdictional fact had been established. Her Honour undertook this examination at [75] and [76] and in doing so referred to the well-known decision Parisienne Basket Shoes v Whyte [1938] HCA 7; (1938) 59 CLR 369 for the proposition that where power is conferred upon the decision maker to determine whether or not a jurisdictional fact has been established, and the decision maker exercises that power making a genuine effort to determine the question and does so, that determination will resolve the question of jurisdiction even if wrong. Parisienne Basket Shoes concerned a decision by Justices whether or not an information for a prosecution which had to be laid within a specified time had been instituted in time under the Factories and Shops Act 1928 (Vic). Latham CJ, Starke, Dixon, Evatt and McTiernan JJ all held that the Justices before whom the information came on for hearing had jurisdiction to determine whether it was laid within the statutory period or not and that if they made an erroneous decision in doing so, they were still acting within the limits of their jurisdictions and, accordingly, that prohibition would not lie. At 391 Dixon J said:
It cannot be denied that, if the Legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the Legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and that the proceedings of the court were valid. Conceding the abstract possibility of the Legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.
87 These considerations led Pritchard J to conclude that if the decision maker was empowered to determine the jurisdictional fact, then any court engaged in judicial review would examine the decision maker's process of reasoning leading to the conclusion that the jurisdictional fact exists but would not enquire into the actual existence of that jurisdictional fact – see also Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 [169] and Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80 [63] (Corboy J).
88 In this instance I consider that the correct interpretation of s 32(1)(a)(ii) means that if any dispute arises as to whether or not a response has been prepared and filed within the requisite period then the adjudicator is empowered to determine that dispute, even though it may be a jurisdictional fact, and if he does so according to the evidence his determination will be effective and binding even if erroneous. It seems to be a clear case for the application of the principle in Parisienne Basket Shoes . The consequences of an alternative construction which conditions the effectiveness of the adjudicator's determination, upon the objective correctness of whether or not the response was filed in time would leave the ensuing determination open to collateral attack or objection at any time within which recourse for prerogative or judicial review may be possible. As Dixon J observed, there is an abstract possibility that that might have been intended but I reject that as any realistic conclusion because it is antipathetic to the structure of the Act and to the premium placed on an informal, expeditious, provisional determination of a payment dispute. Consequently, although I consider that the correct conclusion on the question of whether or not the response was filed in time, raising as it does issues of the application of s 9 of the Electronic Transactions Act may well have been wrongly decided, that was a decision made by this adjudicator in the performance of his jurisdiction and in the exercise of a power which was conferred upon him to determine. Having done so, an error in determining whether or not the response was filed late would not be a jurisdictional error permitting judicial review by certiorari or otherwise.
Fourth ground for review - no determination by adjudicator within time
89 This is the question of whether or not by making a correction to his determination on 15 March 2013 by inserting a provision to the effect that the determination took effect on the date it was published in order to overcome the omission of failing to specify a date on which money was payable meant that no determination had been made in time. I have examined this ground earlier in these reasons and have concluded that the adjudicator was empowered to make that correction under the provisions of s 41(2) of the Act.
Other matters
90 Counsel for the second respondent submitted that even if errors amounting to jurisdictional errors had been established by the applicant, relief in the form of certiorari or other relief should be refused in the exercise of discretion. This submission was developed by reference to the issues which were presented to the adjudicator for decision on the merits. Counsel for the second respondent submitted that the submissions from Triple M which had been received and acted upon by the adjudicator raised for determination the substantial issues of fact in the case and that there would be no advantage or likely change in result if the matter were to be committed for rehearing or further determination. The argument further proceeded that there would be no useful purpose to be achieved by setting aside the decision and that the evidence plainly established that there was a substantial amount owing by Triple M to United Industries which, in conformity with the policy of the Act, should result in a significant payment being made even if only provisional. According to counsel for United Industries, if there were any discrepancy or variation in the strict legal entitlement of the parties, this could be adjusted at a later phase of the contractual payments or in any ultimate legal or arbitral proceedings.
91 Having regard to the conclusions which I have reached upon the grounds advanced by Triple M, it is not necessary for me to determine any of those submissions relating to discretionary refusal of relief and, in the circumstances, it is undesirable to take this aspect of the case any further.
Conclusion
92 For these reasons I consider that the application by the plaintiff for certiorari should be refused, the order nisi discharged, and that the stay granted to the plaintiff against enforcement of the adjudication should be discharged.