JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL

ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA)

CITATION : THE MCIC NOMINEES TRUST T/As CAPITAL PROJECTS & DEVELOPMENTS and RED INK HOMES PTY LTD [2013] WASAT 177

MEMBER : MS N OWEN-CONWAY (MEMBER)

HEARD : 20 AUGUST 2013

DELIVERED : 4 NOVEMBER 2013

FILE NO/S : CC 837 of 2013

BETWEEN : THE MCIC NOMINEES TRUST T/As CAPITAL PROJECTS & DEVELOPMENTS

Applicant

AND

RED INK HOMES PTY LTD

First Respondent

GRAHAM ANSTEE-BROOK

Second Respondent

Catchwords:

Construction Contracts Act 2004 (WA) - From when time runs, pursuant to implied term cl 7(3) Sch 1 Div 5 of Construction Contracts Act 2004 (WA) - Section 61(1)(b), (e) and (h) of the Interpretation Act 1984 (WA) – Specified day - Specified event - Common law rules on computation of time - Is the time for an event the whole day? - When does a payment dispute arise? - Is the day on which the payment dispute arises to be included or excluded when calculating 'within 28 days after the dispute arises' for s 26 of Construction Contracts Act 2004 (WA)? - Relevance of privity of contract as to whether application was prepared and served in accordance with s 26 of Construction Contracts Act 2004 (WA)

Legislation:

Construction Contracts Regulations 2004 (WA), reg 4, reg 5

Construction Contracts Act 2004 (WA), s 3, s 4(2)(c), s 5(2), s 6, s 6(a), s 17,

s 23, s 26, s 26(1), s 26(2), s 31, s 37(2)(b), s 46(1), Sch 1 Div 5, cl 7(3), cl 7(3)(a)

Interpretation Act 1984 (WA), s 61

State Administrative Tribunal Act 2004 (WA)

Result:

Decision to dismiss affirmed

Summary of Tribunal's decision:

The applicant made an application for adjudication against the first respondent pursuant to an alleged oral construction contract between them. The applicant relied on an assertion that the construction contract was between herself and the first respondent by reason of her assertion that two individuals, with whom she concluded a contract, were the representatives of the first respondent. There was no other evidence to support that contention. The individuals gave evidence that they were engaged by another entity and that they concluded a contract with the applicant, on behalf of that other entity. The objective evidence did not support a conclusion that the first respondent was a party to the construction contract. The adjudicator expressly stated that he would not consider whether the first respondent was a party to the construction contract. The Tribunal concluded that the first respondent was not a party to the construction contract and, as the application for adjudication was not prepared with reference to, and served on, the other party to the contract, the adjudicator's dismissal of the application for adjudication was supported on the basis of a factor relevant to s 31(2)(a)(ii) of the Construction Contracts Act 2004 (WA), which the adjudicator had not considered. In reviewing the adjudicator's dismissal of the application for adjudication upon the basis that it was out of time, the Tribunal concluded that the adjudicator had miscalculated the time prescribed by s 26 of the Construction Contracts Act 2004 (WA) for the making of an application for adjudication, and that the application had been made within time.

Category: B

Representation:

Counsel:

Applicant : Mr G Rodoreda

First Respondent : Mr L Hager

Second Respondent : N/A

Solicitors:

Applicant : Jackson McDonald

First Respondent : Metaxas & Hager

Second Respondent : N/A

Case(s) referred to in decision(s):

Edelsten v Health Insurance Commission [1988] FCA 258; 90 ALR 595; (1988) 24 FCR 512

Howard and Farrell [2012] WASAT 169

Moroney & Anor and Murray River North Pty Ltd [2008] WASAT 36

Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217

Prowse v McIntyre [1961] HCA 79; (1961) 111 CLR 264

REASONS FOR DECISION OF THE TRIBUNAL :

Introduction

1 Pursuant to s 26 of the Construction Contracts Act 2004 (WA) (CC Act), on 23 May 2013 the applicant applied for adjudication of a payment dispute (adjudication), allegedly with the first respondent, arising from an alleged oral construction contract. The applicant relied on a witness statement that she concluded a construction contract with two individuals, whom she asserted were the representatives of the first respondent. The first respondent denied it was party to the construction contract. The individuals gave evidence that they were engaged by SPG Consulting Pty Ltd and they concluded a contract with the applicant on behalf of SPG Consulting Pty Ltd. The adjudicator expressly stated that he would not consider whether the first respondent was a party to the construction contract in considering whether the adjudication must be dismissed pursuant to s 31(2)(a) of the CC Act. Instead, the adjudicator dismissed the adjudication upon the basis that it was made outside the time prescribed by s 26 of the CC Act. The applicant asserted that the adjudicator had miscalculated the time prescribed by s 26 of the CC Act for the making of an adjudication and that it had been made within time.

The review application

2 The review application was filed in the Tribunal pursuant to s 46(1) of the CC Act. The applicant seeks the following orders pursuant to s 46(2) of the CC Act:

a) The decision of the adjudicator, dismissing the adjudication, be set aside.

b) The adjudication be remitted to the adjudicator for a determination on the merits pursuant to s 31(2)(b) of the CC Act, within 14 days after the date on which the adjudicator's decision is reversed (or any extension of that time consented to by the parties).

The adjudicator's decision to dismiss the adjudication made under s 31(2)(a) of the CC Act and reasons

3 On 28 June 2013, the adjudicator communicated his dismissal of the adjudication and his reasons by way of his written 'determination'. The adjudicator did not make a determination of the payment dispute underlying the adjudication on the merits (save for the issue of the adjudicator's costs) as that term is used in the CC Act (s 31(2)(b) of the CC Act). Rather, the adjudicator dismissed the adjudication pursuant to 's 31(2)(a)(i)' of the CC Act. The reference to 's 31(2)(a)(i)' of the CC Act, is a reference to a decision to dismiss, because the payment dispute does not concern a 'construction contract' as defined by the CC Act. In fact, however, in the context of the adjudicator's reasons, the adjudicator concluded that he was obliged to dismiss the adjudication because it was made outside the time prescribed by s 26 of the CC Act and it had not been 'prepared and served' in accordance with s 26 of the CC Act. He concluded that he was compelled to dismiss the adjudication pursuant to s 31(2)(a) (ii) of the CC Act.

4 As to the provisions of s 31(2)(a)(i) of the CC Act, the adjudicator expressly concluded that the payment dispute did concern a 'construction contract' as defined by the CC Act. The Tribunal is satisfied that the adjudicator intended to refer to 's 31(2)(a) (ii) ' of the CC Act rather than s 31(2)(a) (i) of the CC Act as the ground for his dismissal and that the reference to s 31(2)(a) (i) of the CC Act at page 4 of 12 of his reasons is a typographical error.

5 In the course of his reasoning, the adjudicator did not decide or consider whether the adjudication was 'prepared and served' in accordance with s 26 of the CC Act by serving the same on a party to the construction contract. That was an issue that was squarely raised by the first respondent in its response to the adjudication. On this issue, the adjudicator made the following statements in his reasons for decision:

3.1 The applicant claims that in or about May 2012 two Directors of the Applicant met with representatives of the Respondent and entered into an oral agreement whereby the Applicant was to provide certain services for the Respondent.

3.2 The respondent denies that there is any contractual or other arrangement between the respondent and the applicant and that any arrangement or contract was between the applicant and another corporate entity.

3.3 By reason of paragraph 8 of this Determination it is not necessary for me to determine whether there was a contract or other arrangement between the applicant and respondent. (Tribunal's emphasis)

6 Paragraph 8 of the adjudicator's reasons concern the adjudicator's conclusion that the adjudication was not made within the time prescribed by s 26 of the CC Act, and must be dismissed by him pursuant to s 31(2)(a)(ii) of the CC Act.

The grounds of the review application and the issues raised by the first respondent in support of the dismissal

7 The basis of the review application is that the adjudication was made within the time prescribed by s 26 of the CC Act and that the adjudicator miscalculated the time within which the adjudication could be made.

8 The first respondent raised the adjudicator's express failure to consider whether the first respondent is a party to the construction contract in question (privity of contract issue). The first respondent contends that the adjudicator was required by s 31(2)(a) of the CC Act to consider the privity of contract issue and his failure is to be 'taken, on review' to be an alternative basis of the adjudicator's dismissal of the adjudication ( Moroney & Anor and Murray River North Pty Ltd [2008] WASAT 36 ( Moroney No 2 ) at [101] and [102]) which must also be reviewed by the Tribunal when considering whether to set aside the dismissal or affirm the same.

9 The applicant contends that the privity of contract issue is not relevant to s 31(2)(a) of the CC Act and denies that the adjudicator failed to consider the privity of contract issue and contends that the adjudicator:

… has dealt with all other jurisdictional issues required by s 31(2)(a) of the CCA in the Decision.

The Tribunal's jurisdiction to review - the adjudicator's express failure to consider the privity of contract

10 An adjudicator is required to dismiss an adjudication if the application falls into s 31(2)(a)(i), (ii), (iii) or (iv) of the CC Act. In satisfying himself that an adjudication must be dismissed pursuant to s 31(2)(a) of the CC Act, the adjudicator need only be satisfied of one of the matters referred to s 31(2)(a)(i), (ii), (iii) or (iv) of the CC Act ( Moroney No 2 ). In the past, this Tribunal has concluded that, in the case of a review of an adjudicator's dismissal, pursuant to s 31(2)(a) of the CC Act, a failure to consider each of the matters referred to in s 31(2)(a)(i), (ii), (iii) and (iv) of the CC Act, is to be treated as a dismissal on any basis that is not considered by the adjudicator, and may properly be the subject of a review application pursuant to s 46(1) of the CC Act ( Moroney No 2 ). Applying that reasoning, if the decision to dismiss an adjudication is based on one factor relevant to s 31(2)(a) of the CC Act but other factors relevant to in s 31(2)(a) of the CC Act that could have supported that decision were not considered, the Tribunal may consider those additional unconsidered factors when reviewing the adjudicator's decision to dismiss.

11 The applicant contends that the privity of contract issue is not relevant to any matter referred to in s 31(2)(a) of the CC Act. The first respondent contends that the privity of contract issue is relevant to s 31(2)(a)(i) of the CC Act; that is, whether the adjudication did not concern a 'construction contract'.

12 The Tribunal concludes that the privity of contract issue is not relevant to s 31(2)(a)(i) of the CC Act and whether the payment dispute concerns a construction contract, but is relevant to whether the adjudication has been prepared and served in accordance with s 26 of the CC Act (s 31(2)(a)(ii) of the CC Act).

Is the privity of contract issue relevant to s 31(2)(a) (ii) of the CC Act? Yes

13 Section 26 of the CC Act relevantly provides:

( 1) To apply to have a payment dispute adjudicated, a party to the contract , within 28 days after the dispute arises or, if applicable, within the period provided for by section 37(2)(b), must -

(a) prepare a written application for adjudication;

(b) serve it on each other party to the contract [.]

(Tribunal's emphasis)

14 Section 26(1) of the CC Act requires the applicant to be a party to the construction contract and s 26(1)(b) of the CC Act requires all other parties to the same construction contract to be served with the adjudication. Whether the first respondent is a party to the construction contract is, therefore, critical to the question whether the adjudication is 'served' in accordance with s 26 of the CC Act, or not. If the first respondent is not a party to the construction contract in issue, the adjudication served on the first respondent as a party to the construction contract is not 'served' in accordance with s 26(1) of the CC Act.

15 Section 26(2) of the CC Act relevantly provides:

(2) The application -

(a) must be prepared in accordance with, and contain the information prescribed by, the regulations[.] (Tribunal's emphasis)

16 Regulation 5 of the Construction Contracts Regulations 2004 (WA) (Regulations) provides:

For the purposes of section 26(2)(a) of the Act, an application to have a payment dispute adjudicated must , in addition to the other information required by section 26(2) of the Act, contain -

…

(b) the applicant’s name and contact details; and

17 Regulation 4 of the Regulations defines 'contact details' and provides:

If a person is required by these regulations to give the contact details of a person, the person required to give the details must give the address, telephone and facsimile numbers and ABN of the person or the person's business (or ACN of the person if there is no ABN) to the extent to which the person required to give the details knows those details.

18 The purpose of the stringent requirement of articulating the name and contact details of the other party to the construction contract is to ensure that the adjudicator is able to make an assessment whether the identified first respondent in any adjudication is a party to the construction contract in question. Whether the first respondent is a party to the construction contract is, therefore, critical to the question whether the adjudication is 'prepared' in accordance with s 26 of the CC Act or not.

Is the privity of contract issue relevant section 31(2)(a)(i) of the CC Act? No

19 In its statement of issues, facts and contentions (SIFC) filed 15 August 2013, the first respondent contends that the adjudicator failed 'to determine whether the contract concerned was a ''construction contract'' within the meaning of the CCA' (see paragraph 3.1 of the first respondent's SIFC). The contention is repeated in paragraphs 6 to 12 of the first respondent's SIFC. This contention was repeated in the first respondent's subsequent responsive SFIC filed 23 August 2013.

20 The Tribunal disagrees with this contention, as the definition of 'construction contract' concerns the nature of the work/services to be carried out by the person who is obliged under the contract to perform the work/services . The definition of 'construction contract' is not concerned with the details or description of the party for whom the work/services is to be performed under the construction contract.

21 The party who is obliged to perform the work/services pursuant to the construction contract is referred to in the definition of 'construction contract' (s 3 of the CC Act) as the 'contractor' and is defined as the person who is obliged to perform the work/services of the defined nature. Therefore, a contract meets the definition of a 'construction contract' for the purposes of s 3 of the CC Act by considering the nature of the work to be performed by the contractor alone. Whether the first respondent is a party to the construction contract is not relevant to s 31(2)(a)(i) of the CC Act.

Did the adjudicator consider whether the adjudication concerned a construction contract - s 31(2)(a)(i) of the CC Act? Yes

22 Before the adjudicator, the first respondent contended that the contract in question lacked the necessary 'nature' so as to fall within the definition of a 'construction contract' within the meaning of the CC Act. Before the Tribunal, the first respondent contended that the adjudicator did not consider and decide whether the contract in question is a 'construction contract' for the purposes of s 31(2)(a)(i) of the CC Act. The Tribunal rejects the contention. At paragraph 7.14 of the reasons for his decision, the adjudicator concluded:

I am satisfied that the Applicant has satisfied the threshold test and that the services provided fall within the parameters of section 5(2)(a)(i) [of the CC Act] and accordingly the Contract is a Construction Contract.

23 The adjudicator's conclusion follows the adjudicator's consideration of the definition of 'construction contract' found in s 3 of the CC Act; the definition of 'construction work' as provided for in s 4(2)(c) of the CC Act; the definition of 'professional services' as provided for by s 5(2) of the CC Act; the facts referred to in the adjudication and the response concerning the nature of the work/services that the applicant alleged the contract obliged her to perform, and various authorities. The Tribunal concludes that the adjudicator did consider whether the adjudication concerned a construction contract for the purposes of s 31(2)(a)(i) of the CC Act. Further, the Tribunal finds that the adjudicator concluded that he was not required by s 31(2)(a) of the CC Act to dismiss the adjudication because it did concern a 'construction contract'. The Tribunal does not have jurisdiction to review the adjudicator's conclusion not to dismiss pursuant to s 31(2)(a)(i) of the CC Act (s 46(1) of the CC Act; Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217).

Tribunal's review

Review of the decision to dismiss pursuant to s 31(2)(a)(ii) of the CC Act - the privity of contract issue

24 The adjudication incorporates a Form 3 to the CC Act which identifies Red Ink Homes Pty Ltd, ABN 26 119 012 734, at the business address of 18 San Giorgio Court, Osborne Park, WA 6017, as the first respondent to the adjudication. It identifies the first respondent's phone number as 9208 1111 and the first respondent's facsimile number as 9208 1112. These are all essential contact details that must be included in the adjudication, in accordance with s 26 of the CC Act, by reason of reg 4 and reg 5 of the Regulations. The details appear to be correct insofar as they relate to the first respondent, although the first respondent's registered business address is 9 San Giorgio Court, Osborne Park, WA.

25 The parties agree that the express terms of any construction contract are entirely oral. Annexure A, under Tab A of the adjudication, is a document entitled 'Submissions'. The applicant's submissions assert that Stewart Martincic and the applicant, both on behalf of the applicant, met with Terry Evans (who is described as the first respondent's marketing manager) and Gino Van Der Meer (who is described as the first respondent's sales manager) at the first respondent's premises at 18 San Giorgio Court, Osborne Park and entered into an oral agreement whereby the applicant, as an independent contractor, agreed to supply professional services in relation to construction work of the kind described in paragraph 4 of the submissions allegedly for the first respondent.

26 At Tab H of the adjudication, the applicant (Annabelle Martincic) and Stewart Martincic, both state in their respective statutory declarations that they each met with Terry Evans and Gino Van Der Meer, whom they both describe respectively as the marketing and sales managers of the first respondent, at the first respondent's business premises at 18 San Giorgio Court, Osborne Park in May 2012. Both Mr and Ms Martincic depose to a resulting oral agreement between themselves, as agents for the applicant, and the first respondent, to provide design, planning, costing and drafting services for residential homes constructed by the first respondent.

27 The allegation that there is a construction contract between the applicant and the first respondent, through the agency of Mr Evans and Mr Van Der Meer, is based upon the assertions by Mr and Mrs Martincic that Mr Evans and Mr Van Der Meer represented the first respondent at the meeting in May 2012 .

28 The first respondent's response contains a statutory declaration by Mr Evans wherein he states that he is a marketing manager engaged by SPG Consulting Pty Ltd and denies that he is a marketing manager of 'Red Ink Pty Ltd' which, when read in context, is a reference to the first respondent (Red Ink Homes Pty Ltd). He also denies that he engaged in any discussions with either the applicant or Mr Stewart Martincic, on behalf of the first respondent. The first respondent's response contains a statutory declaration by Mr Van Der Meer wherein he states that he is a marketing manager engaged by SPG Consulting Pty Ltd and denies that he is a marketing manager of 'Red Ink Pty Ltd' which, when read in context, is a reference to the first respondent (Red Ink Homes Pty Ltd). He also denies that he engaged in any discussions with either the applicant, or Mr Stewart Martincic, on behalf of the first respondent.

29 Both Mr Evans and Mr Van Der Meer depose to the fact that they are, and were, engaged by SPG Consulting Pty Ltd, which markets and sells residential building contracts for companies within the Scott Park group of companies, including the first respondent. Both Mr Evans and Mr Van Der Meer depose that the applicant was engaged to perform the sales and marketing services for SPG Consulting Pty Ltd, so that the latter could perform those services for the first respondent as part of the Scott Park group of companies. They declare that the contractual relationship was between SPG Consulting Pty Ltd and the applicant. In support of that statement, Mr Van Der Meer annexed to his statutory declaration an invoice from the applicant dated 3 August 2012, addressed to the first respondent (which he says should have been addressed to SPG Consulting Pty Ltd), and an EFT remittance advice from SPG Consulting Pty Ltd to the applicant in payment of that invoice. Further, Mr Van Der Meer annexes a letter dated 8 January 2013 to the applicant stating:

Redink Homes Pty Ltd does not engage or accept marketing and sales services from sales & marketing contractors - that entity is SPG Consulting Pty Ltd[.]

30 Both the payment of the invoice dated 8 August 2013 and the statement in the letter dated 8 January 2013, are consistent with a contractual relationship between the applicant and SPG Consulting Pty Ltd, and indicates that the first respondent may have a contract or arrangement with SPG Consulting Pty Ltd, but has no contractual relationship with the applicant. The declarations by Mr Evans and Mr Van Der Meer that they are each engaged by SPG Consulting Pty Ltd, supports the first respondent's contention that it was not a party to the construction contract.

31 By contrast, the applicant has produced nothing to support her contention save for the declarations of Mr Martincic and the applicant referred to above. The applicant was put on notice by the letter of 8 January 2013, that it was the view of SPG Consulting Pty Ltd, that it was the correct party to any contract for the applicant's services, and not the first respondent. In light of that letter, the applicant has not produced any objective material to substantiate her claim that the applicant was in a contractual relationship with the first respondent.

32 Further, the applicant's own payment claim (a series of invoices dated 28 March 2013), is addressed to the first respondent and SPG Consulting Pty Ltd, suggesting that one or the other is, or both are, in a contractual relationship with the applicant. This material does not support the applicant's contention that she was in a contractual relationship with the first respondent and, to the contrary, it introduces considerable doubt that the applicant herself is confident that her contractual relationship is with the first respondent.

33 The Tribunal notes that both the first respondent and SPG Consulting Pty Ltd operate from the same address of 18 San Giorgio Court, Osborne Park and use the same phone number and facsimile number as the first respondent. The Australian Securities and Investments Commission (ASIC) searches produced by the parties show that a shareholder of SPG Consulting Pty Ltd is one of the shareholders of the first respondent. But each of the first respondent and SPG Consulting Pty Ltd are distinct entities and are not one and the same.

34 On all of the information contained in the adjudication and response, the Tribunal is not satisfied that the first respondent is a party to the construction contract in question and is not satisfied that the payment claim made against the first respondent is one that arises under a construction contract between the applicant and first respondent.

35 The Tribunal concludes that the adjudication was not prepared and served on the other party to the construction contract; does not contain the name of the other party to the construction contract and the correct contact details for the other party to the construction contract.

36 For these reasons the Tribunal is persuaded by the material before it and concludes that that the adjudication was not prepared or served in accordance with s 26 of the CC Act. For this reason, the Tribunal concludes that the adjudication must be dismissed pursuant to s 31(2)(a)(ii) of the CC Act.

Review of the decision to dismiss pursuant to s 31(2)(a)(ii) of the CC Act - was the application for adjudication served in the time prescribed by s 26 of the CC Act?

37 This was the basis upon which the adjudicator dismissed the adjudication. In the event that the Tribunal is incorrect in its conclusion, that the adjudication must be dismissed because it was not prepared with reference to, or served on, the other party to the construction contract, a consideration of the adjudicator's dismissal on the basis of it being out of time, is required.

38 The applicant contends that, properly applied to the facts, the provisions of the CC Act operate so that the last day on which the applicant could have made its adjudication, was Monday 27 May 2013. The first respondent, however, contends that the last day for serving the adjudication, as prescribed by the CC Act, expired on 23 May 2013.

39 The following facts are not in dispute:

a) The payment claim in this case (assuming that the first respondent is the correct party) comprises 31 invoices dated 28 March 2013 totalling $317,941.49 plus GST referred to in Annexure B of the application for adjudication.

b) During the course of the hearing, the first respondent's counsel admitted that the first respondent did receive those invoices on 28 March 2013.

c) The express terms of the construction contract in question are oral.

d) The terms referred to in Sch 1 Div 5 of the CC Act are implied terms of the construction contract in question by reason of s 17 and s 18 of the CC Act.

e) The adjudication was served on the first respondent and the appointer on 24 May 2013.

40 The adjudicator concluded that 28 days from, and excluding 28 March 2013, fell on 25 April 2013. He concluded that that was the date on which the payment dispute arose. He further concluded that the 28 days within which to serve the adjudication, excluding the day on which the payment dispute arose (25 April 2013), fell on 23 May 2013. The adjudicator dismissed the adjudication because the same was served out of time, as calculated by him, and was therefore not served in accordance with s 26(1) of the CC Act.

41 Section 26 of the CC Act, referred to above, provides a specific time for the serving of the adjudication on a first respondent and the agreed adjudicator or the appointer:

… within 28 days after the dispute arises or, if applicable, within the period provided for by section 37(2)(b)[.]

42 Section 37(2)(b) of the CC Act has no application to this proceeding. Section 6 of the CC Act provides that a payment dispute arises if:

(a) by the time when the amount claimed in the payment claim is due to be paid under the contract, the amount has not been paid in full[.] (Tribunal's emphasis)

43 In the case of a construction contract that contains no written provision 'about when and how a party is to respond to a claim for payment made by another party', the terms referred to in Sch 1 Div 5 of the CC Act are implied by operation of s 17 and s 18 of the CC Act and, in construing those implied terms, s 23 of the CC Act provides:

The Interpretation Act 1984 and sections 3 to 6 of this Act apply to the interpretation and construction of a provision that is implied in a construction contract under this Part despite any provision in a construction contract to the contrary.

44 Clause 7(3) of Sch 1 Div 5 of the CC Act relevantly provides:

Within 28 days after a party receives a payment claim, the party must do one of the following, unless the claim has been wholly rejected or wholly disputed in accordance with subclause (1) –

(a) pay the part of the amount of the claim that is not in disputed;

(b) pay the whole of the amount of the claim.

45 It is agreed that nothing was paid to the applicant and there has been no rejection in whole, or part, of the payment claim in question.

46 The following questions arise in reckoning the time permitted by s 26(1) of the CC Act:

1) Whether the day on which the payment claim was received by the first respondent is included, or excluded, in the computation of the 28 day period referred to in cl 7(3)(a) Sch 1 Div 5 of the CC Act? For the reasons that follow, the Tribunal concludes the day upon which the payment claim was received should be excluded.

2) Where the 28th day falls on a public holiday or a Saturday or Sunday, is it excluded, or included, for the purpose of identifying when the payment dispute arose? For the reasons that follow, the Tribunal concludes that the public holiday, Saturday or Sunday, should be excluded where the 28th day falls on such a day. The 28th day then falls on the next day that is not a Saturday, Sunday or public holiday.

3) Whether the day on which the payment dispute arose is included, or excluded, in the computation of the 28 days prescribed by s 26(1) of the CC Act? For the reasons that follow, the Tribunal concludes that the day on which the payment dispute arose is to be included in the computation of the 28 day period in which an application for adjudication may be made pursuant to s 26 of the CC Act.

47 To aid in the computation of time, the applicant relied on s 61(1)(b) and s 61(1)(h) of the Interpretation Act 1984 (WA) (Interpretation Act). Subsequently, the applicant relied on s 61(1)(e) of the Interpretation Act in the alternative to s 61(1)(h) of the Interpretation Act.

Section 61(1)(b) of the Interpretation Act provides:

In computing time for the purposes of a written law –

…

(b) where a period of time is expressed to be reckoned from, or after, a specified day , that day shall not be included in the period[.]

(Tribunal's emphasis)

48 Clause 7(3) Sch 1 Div 5 of the CC Act refers to a period 'within 28 days after' a specified event (the receipt of the payment claim), not a specified day. Had cl 7(3) Sch 1 Div 5 been expressed in terms of a day on which the specified event occurred, s 61(1)(b) of the CC Act would have had application. The clause is not so expressed, and for that reason the Tribunal concludes that s 61(1)(b) of the Interpretation Act has no application to the construction of cl 7(3) Sch 1 Div 5 of the CC Act.

49 The common law rule however provides that the word 'within' signifies the time by which a requirement, act or event must occur. The common law rule applies to specified events and specified dates. In calculating the period where an event is specified, the date of the event is excluded, as are fractions of a day ( Prowse v McIntyre [1961] HCA 79; (1961) 111 CLR 264 per Windeyer J). This common law rule applies equally to the construction of legislation and interpretation of terms. In that case, Windeyer J stated:

In measuring lapse of time the common law eschews metaphysics. …

For most purposes of the law time is measured by days; and events are assigned in time to calendar days. Lawyers naturally adopt the spatial concept of time of ordinary thought and language. It follows that time is measured in periods; and any period or space of time, a year, a day, an hour, is, in theory at all events, divisible. But, as a day is for law the unit of measure in most cases, it was early said that the law was not concerned with divisions of a day. … But in Combe v. Pitt [1763] EngR 88; (1763) 3 Burr 1423, at p 1434 [1763] EngR 88; (97 ER 907, at p 913) Lord Mansfield remarked that: 'though the law does not, in general, allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish . And I do not see why the very hour may not be so too, where it is necessary and can be done: for it is not like a mathematical point, which cannot be divided' (1763) 3 Burr, at p 1434 (97 ER, at p 913). The word 'instant' has, however, long been used to describe a moment in the passage of time that is indivisible because infinitesimal …

A day, the period of the earth's axial rotation, is the natural and fundamental division of time. A day for legal purposes is the mean solar day, a period of twenty-four hours. These hours are reckoned from midnight to midnight, the instant of midnight being both the end of one day and the beginning of the next, for there are no rests in time, and as each instant comes it goes. A day has a significance for law in two ways: first, as a division of time, that is the space of time within which an event happened or is to happen, or something was done or is to be done: secondly, as a measure of the passage of time, a unit in a period of time. The distinction tends to become blurred because the passage of time is sometimes spoken of as itself an event, as if it were of the same order as an event that occurs in time. But this is misleading. The birth of a man is an event. His attaining twenty-one is not, in the same sense, an event. It is merely a way of saying that a certain period of time, twenty-one years, has passed since he was born. The importance of this distinction will become apparent …

[T]he law in reckoning time by days ordinarily takes no account of fractions of a day. The result is that, whenever a period of days has to be computed from an act or an event that occurs within the space of a day, a decision must be made whether to start the reckoning from the beginning or the end of that day. Much the same question arises when a period is to be calculated up to the time when an act is done or an event happens. It may be that the mediaeval fondness for the period of a year and a day was in some way related to a desire to ensure the lapse of a full year. In the form the question is ordinarily now put it is whether the day of commencement of a period (or the day of its completion) is to be included or excluded in counting a given number of days. As to that, there is no universal rule. Where it is not prescribed by statute (as for example in the Interpretation Act of 1897 (N.S.W.), s. 35(11)) the answer depends upon context and circumstances: In re North; Ex parte Hasluck (1895) 2 QB 264; and see Belfield v. Belfield [1945] VicLawRp 40; (1945) VLR 231, per O'Bryan J. and Ex parte Toohey's Ltd; Re Butler [1934] NSWStRp 26; (1934 34 SR (NSW) 277; 51 WN 101, per Jordan C.J. (1934) 34 SR (NSW), at p 285; 51 WN at p 103. The observations of Grant M.R. in Lester v. Garland [1808] EngR 326; (1808) 15 Ves Jun 248, at p 257 [1808] EngR 326; (33 ER 748, at p 752) - that, because a day is treated as indivisible, an act 'done in the compass of a day' cannot properly be said to be passed until the day is passed - are a convenient, if not very scientific, explanation of the solution adopted in some cases. …

(Tribunal's emphasis)

50 Generally, and subject to any contrary legislative intention expressed or inferred, the specified event encompasses the whole of a day, so that it is excluded when calculating the passage of time from the event. Where, however, the intention is expressed or inferred that the moment of the event is the starting point, the whole of the day is to be included in the calculation of the passage of time.

51 Applying the common law reasoning referred to above, the Tribunal concludes that the expression 'within 28 days after a party receives a payment claim' means that the period of time of 28 days is to be calculated by excluding the day on which the specified event occurred - that is, the date on which the payment claim was received should be excluded. For this reason, the Tribunal agrees with the applicant's submission that 28 March 2013 should be excluded from the computation of the 28 day period referred to in cl 7(3) Sch 1 Div 5 of the CC Act.

52 There was no dispute between the parties that the 28 day period was to be computed by counting 28 consecutive days. The 28th day from, and excluding 28 March 2013, is 25 April 2013, ANZAC day, and a public holiday throughout the State (and the whole of the Commonwealth of Australia).

53 Applying the common law authority, the 28th day of the 28 day period did not expire until midnight on 25 April 2013.

54 As to the fact that 25 April 2013 is a public holiday, the applicant ultimately relied upon s 61(1)(e) of the Interpretation Act which provides:

[W]here the time limited for the doing of a thing expires or falls upon an excluded day, the thing may be done on the next day that is not an excluded day[.]

55 Section 61(2) of the Interpretation Act provides:

For the purposes of this section, excluded day means Saturday, Sunday, public service holiday, and a bank holiday or public holiday throughout the State or in that part of the State which is relevant to the event, act, thing or proceeding concerned.

56 Section 5 of the Interpretation Act defines 'public holiday' as:

… in relation to an area, means a day that is appointed or declared a public holiday for that area by or under the Public and Bank Holidays Act 1972 [.]

57 The Second Schedule to the Public and Bank Holidays Act 1972 (WA) provides that 25 April of every year is a public holiday for 'Anzac Day'.

58 The applicant contends that the effect of s 61(1)(e) of the CC Act is that the 28 day period is calculated by excluding any excluded day and including the next non-excluded day. In this case, the applicant contends that the 28 day period did not end until midnight on Friday 26 April 2013. The first respondent's competing contention is that s 61(1)(e) of the Interpretation Act does not operate to exclude excluded days. Rather, s 61(1)(e) of the Interpretation Act operates to make lawful and legitimate anything that was required to be done on, or by, the excluded day but was not done on that day and was done on the next non-excluded day. The first respondent submitted that, if payment was to be made at the very latest by midnight on 25 April 2013, but was not made and was instead made, on 26 April 2013, the payment on 26 April 2013 was legitimised.

In the Tribunal's view, such a construction is accommodated by the express words of s 61(1)(h) of the Interpretation Act which provides:

[W]here an act or proceeding is directed or allowed to be done or taken on a certain day, then, if that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day that is not an excluded day.

59 The fact that the first respondent's contention falls within the ambit of s 61(1)(h) of the Interpretation Act suggests to the Tribunal that the legislature intended s 61(1)(e) of the Interpretation Act to mean something different. The Tribunal concludes that s 61(1)(e) of the Interpretation Act applies to the facts of this matter and that 25 April 2013, as an excluded day, is to be excluded from computation of the 28 day period referred to in cl 7(3) Sch 1 Div 5 of the CC Act to identify when the payment dispute arose for the purposes of s 6(a) of the CC Act.

60 That being the case, the 28 day period commencing after and excluding 28 March 2013 expired at midnight on Friday, 26 April 2013.

61 Further, the applicant contended that in construing the definition of 'payment dispute' as provided for in s 6(a) of the CC Act, the Tribunal should conclude that the payment dispute arose immediately after the whole of 26 April 2013 came to an end; that is, at 00:00 hours on 27 April 2013. The Tribunal agrees. This contention was not under attack by the first respondent.

62 The applicant then contended that, in computing the 28 day period within which the applicant was entitled to make the application for adjudication, 27 April 2013 (the date on which the payment dispute arose) should be excluded. This is so, according to the applicant, because s 26 of the CC Act expressly provides that the time for making an application for adjudication is 'within 28 days after the dispute arises'.

63 If the common law rule referred to above applied, as the payment dispute arose on 27 April 2013 and the time is to be reckoned 'within' a period of time by reference to the word 'after' a specified event (or in this case a specified non-event - the non payment of the whole of the payment claim by midnight 26 April 2013), 27 April 2013 would be excluded from the computation of the period in which the adjudication was permitted to be served under s 26 of the CC Act. However, the authorities note that the rule is not universal, and when the computation of a period of time is expressed as 'from' a specified event or date and 'within' a period of days/months or other unit of time but is coupled with the word 'when', the authorities suggest that in those circumstances the day of the specified event is not to be excluded because the moment when the event occurred (or did not occur in this case) was intended to be the starting point of the calculation of the relevant time period ( Edelsten v Health Insurance Commission [1988] FCA 258; 90 ALR 595; (1988) 24 FCR 512; and see Halsbury's Laws of England (4th Ed), Vol 45).

64 Reading s 26 and s 6 of the CC Act together, the Tribunal concludes that the adjudication must be made 'within' the 28 day period which is to run 'from' the precise moment 'when' the payment dispute arose; that is, from 00:00 on 27 April 2013. The identification of the moment when the payment dispute arose is only relevant, in the scope, object and purpose of the CC Act, to determine the 28 day period within which the adjudication may be made. The anchor point for the calculation is 'after' the specified event (or in this case the specified non-event). The CC Act does not provide for anything to be done on or during the day on which the payment dispute arose - its whole purpose is to provide a starting point for the calculation of the 28 day period to run in which an application for adjudication may be made. For this reason, the Tribunal concludes that the date on which the payment dispute arose is not to be excluded from the computation of the 28 day period within which an adjudication may be made pursuant to s 26 of the CC Act.

65 The passage of 28 consecutive days after the payment dispute arose, in this case 00:00 on 27 April 2013, should include 27 April 2013, and expire at midnight on Friday 24 May 2013.

66 The application was served on the first respondent and the appointer on 24 May 2013 and was therefore made within the time prescribed by s 26 of the CC Act. Accordingly, and for the reasons expressed, the Tribunal concludes that the adjudicator's calculation of the time for making an application for adjudication in accordance with s 26 of the CC Act was incorrect.

Conclusion

67 The adjudicator's decision to dismiss the adjudication upon the basis that the adjudication had not being made within the time prescribed by s 26 of the CC Act is incorrect, and the application was made within the time prescribed. However, the Tribunal intends to affirm the adjudicator's decision to dismiss the adjudication upon the basis that the application was not prepared or served as required by s 26 of the CC Act because it did not refer to, or was not served on, the other party to the construction contract. For the reasons expressed, the Tribunal will affirm the adjudicator's decision to dismiss pursuant to s 31(2)(a) of the CC Act.

Other matters

68 The Tribunal was referred to the earlier Tribunal decisions of Moroney No 2 and Howard and Farrell [2012] WASAT 169 as being authorities suggesting a different computation of time. Those authorities did not concern the discrete submissions that were raised in this proceeding concerning the computation of time.

Orders

1. The adjudicator's decision to dismiss adjudication number 01.13.02 pursuant to s 31(2)(a)(ii) of the Construction Contracts Act 2004 (WA) is affirmed.

2. The application for review is otherwise dismissed.

I certify that this and the preceding [68] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS N OWEN-CONWAY, MEMBER