FILE NO/S : CIV 2310 of 2013


First Applicant



Second Applicant



First Respondent


Second Respondent

FILE NO/S : CIV 2311 of 2013





First Respondent


Second Respondent

FILE NO/S : CIV 2374 of 2013


First Applicant



Second Applicant


Third Applicant



First Respondent


Second Respondent


Public law - Error of law - Certiorari - Jurisdictional errors - Adjudicator under Construction Contracts Act 2004 (WA) - Whether analogous to inferior court or administrative tribunal - Misconstrual of statute - Misconception of nature of function or extent of powers



Construction Contracts Act 2004 (WA), s 3, s 9, s 31, s 46



Orders absolute for certiorari


Category: B



CIV 2310 of 2013



First Applicant : Mr P G Clifford

Second Applicant : Mr P G Clifford

First Respondent : No appearance

Second Respondent : Mr B H Taylor



First Applicant : Lavan Legal

Second Applicant : Lavan Legal

First Respondent : Submitting appearance

Second Respondent : Rockwell Olivier


CIV 2311 of 2013


Applicant : Mr P G Clifford

First Respondent : No appearance

Second Respondent : Mr B H Taylor



Applicant : Lavan Legal

First Respondent : Submitting appearance

Second Respondent : Rockwell Olivier


CIV 2374 of 2013


First Applicant : Mr P G Clifford

Second Applicant : Mr P G Clifford

Third Applicant : Mr P G Clifford

First Respondent : No appearance

Second Respondent : Mr B H Taylor



First Applicant : Lavan Legal

Second Applicant : Lavan Legal

Third Applicant : Lavan Legal

First Respondent : Submitting appearance

Second Respondent : Rockwell Olivier


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

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19

Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319

Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2] [2013] WASC 161

Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; (2011) 42 WAR 35

Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80

Table of Contents

Introduction .............................................................................................................................. 6

Overview .................................................................................................................................. 6

Grounds of challenge ............................................................................................................... 8

Underlying facts ..................................................................................................................... 10

Two key features .................................................................................................................... 11

First key feature: claimed agreed percentage remunerations from Red Ink Homes Group

Corporations ........................................................................................................................... 11

Second key feature: wholly oral contract ............................................................................... 12

Contractual terms: remuneration ............................................................................................ 14

The law: introduction and history .......................................................................................... 15

The law: Pre- Kirk ................................................................................................................... 16

The law: Post- Kirk ................................................................................................................. 19

Common grounds of challenge: evaluation ............................................................................ 22

Resolution: Grounds 4 succeeds ............................................................................................ 24

Escape Design – Ground 6: Error ........................................................................................... 27

JBBJ – Ground 6: Error .......................................................................................................... 28

The remaining grounds fail .................................................................................................... 28

Conclusion .............................................................................................................................. 30




1 I am dealing with three applications by related applicants read together and all seeking orders absolute for prerogative writs of certiorari, to quash adjudications of the first respondent, Mr Court, acting in the capacity of adjudicator under the Construction Contracts Act 2004 (WA) (the CC Act).


2 In the three matters, the applicants, after initially commencing proceedings by writ, subsequently issued fresh applications for judicial review under O 56 of the Rules of the Supreme Court 1971 (WA), as that order then stood. However, for reasons wholly irrelevant to these applications O 56 was disallowed by parliament on 29 October 2013: see Western Australia, Government Gazette, No 196 (1 November 2013, 4910).


3 At the time the three matters were argued a replacement order for that disallowed O 56 had not then been promulgated. Order 56, as it then stood, omitted the former r 3 dealing with the issue of reasons for decision.


4 Procedural issues of form aside, the jurisdiction of this court, as a superior court of record, to issue the prerogative writs in appropriate circumstances was not in contention. I proceed accordingly.




5 The three applications seek judicial review on behalf of related residential home building corporations. I refer to the various applicant corporations collectively as the Red Ink Homes Group. Their grievances concern three adverse adjudication determinations made by the first respondent, Mr David V Court, under the CC Act.


6 Mr Court has not participated in the applications – other than to file appearances submitting to this court's decision.


7 The challenged adjudication determinations are respectively:


(a) a Goldvance determination, published 15 August 2013, favouring Goldvance Holdings Pty Ltd against the first plaintiff (Red Ink Homes) in the amount of $65,472 inclusive of GST, plus interest.


(b) an Escape Design determination of 16 August 2013, favouring Escape Design Corporation Pty Ltd in the amount of $254,871.77 inclusive of GST plus interest. This determination was purportedly revised by the adjudicator on 25 November 2013, by an asserted exercise of power pursuant to s 41(2) of the CC Act, to correct what Mr Court termed an 'accidental slip' or 'omission'. This contentious revision emerged, it would appear, in answer to a ground of challenge discussed later in these reasons. The socalled 'corrected' Escape Designs determination by Mr Court of 25 November 2013 purports to specifically identify its object as Red Ink Homes.


(c) a JBBJ determination of 3 September 2013, favouring JBBJ Plans Pty Ltd against 101 Residential Pty Ltd, in the amount of $246,644.67 inclusive of GST and further, against Red Ink Homes in the extra amount of $11,120.90 plus interest.


8 In each determination a Red Ink party was also ordered to pay a sum to the relevant claimant to set off part of what that claimant had paid as security for costs. The net effect was that costs were borne equally, pursuant to s 44 of the CC Act.


9 Mr Court's three reasoned determinations are uncontroversially put before me, in the form of annexures to affidavits of Mr Terry Graham Evans, sworn on behalf of Red Ink Homes, in each of the respective matters.


10 The subsequently revised Escape Design determination was before the Court annexed to the affidavit of Alana Rebecca Salsano, a solicitor conducting the litigation on Escape Design's behalf.


11 For the purposes of the overall exercise, I will append to these reasons the adjudicator's determination in the Escape Design matter (as revised by Mr Court on 25 November 2013). It will be sch 1 to these reasons. The content and overall structure of the three determinations is very similar.


12 The three applications were argued together upon the basis of the applicants' overlapping claims to quash each of the adjudication decisions of Mr Court by orders absolute for certiorari.


13 Each of the claimant parties who sought to invoke Mr Court's jurisdiction under the CC Act, ultimately obtained from him adjudications in their favour. Each has participated as active respondents in resisting certiorari on each application. The second respondents have been the effective contradictors, arguing against prerogative relief.


14 The three applications involve substantially common jurisdictional error challenges to the adjudicator's three determinations with some distinction, discussed below.


15 Correlatively, each of the second respondents has additionally commenced separate proceedings in this Court, seeking, pursuant to s 43 of the CC Act, leave of this Court to enforce the adjudicator's three determinations. They seek leave to enter judgment for the amounts earlier identified against the respective applicants upon each of the three determinations made in their favour by Mr Court.


16 It is now convenient to identify the various grounds of challenge advanced upon each application seeking orders absolute for certiorari.


Grounds of challenge


17 Five grounds were invoked by the Goldvance application. Each is conceptually reiterated in the Escape Design and JBBJ applications. But in addition, the Escape Design and JBBJ applications each carry a unique ground 6.


18 Working from the Goldvance application, these five common grounds are raised in all matters.


The Adjudicator committed jurisdictional errors in that:


1. there was no obligation on [Goldvance/Escape/JBBJ] to provide and [Goldvance/Escape/JBBJ] did not provide services on or off a site ' where construction work is being [carried] out' ;


2. the work was not 'construction work' (within the meaning of the Act) in that the agreement with [Goldvance/Escape/JBBJ] was not for the construction of a building or was not work that is preparatory to, necessary for or an integral part of the construction of a building 'on a site in WA';


3. the work was not a professional service 'provided by a profession' and, or alternatively it did not relate directly to 'construction work' or to assessing 'construction work[s]' feasibility;


4. the Adjudicator having found, in effect, a term of the agreement that such payment as may have been due, was due and payable only after any ground slab for the building was poured, failed to apply that term in the Determination and has thereby misapprehended the nature or limits of his functions or powers and/or has misconstrued the Act and thereby misconceived the nature of the function he was performing or the extent of his powers in the circumstances by concluding, in substance, that [Goldvance/Escape/JBBJ] was entitled to payment before the ground slab for the building was poured;


5. the Adjudicator failed to give adequate and proper reasons for the Determination in accordance with section 36(d) of the Act in that there are no primary findings of fact capable of supporting the conclusions that:


5.1 the work performed by [Goldvance/Escape/JBBJ] was a professional service provided by a profession and that related directly to construction work or to assessing the construction work's feasibility; or

5.2 the work performed by [Goldvance/Escape/JBBJ] was provided pursuant to a 'construction contract'; or


5.3 the work performed by (Goldvance/Escape/JBBJ) was 'construction work'; or


5.4 [Goldvance/Escape/JBBJ] was entitled to payment or that the applicants were obliged to make payment at the time the adjudicator found payment to be due;

(My emphasis in underlining.)


19 In the Escape Design application, the unique ground 6, is:


6. In circumstances where the Application for Adjudication is made as against two respondents, being the two applicants to this application, the Adjudicator committed a jurisdictional error in that he misapprehended the nature of limits of his functions or powers and/or misconstrued the Act and thereby misconceived the nature of the function he was performing or the extent of his powers in the circumstances by concluding, in substance, that he failed to identify which, of either of the two respondents, was the proper party to the contract (paragraph 55 of the Determination) and which, of either of the two respondents, was the respondent found liable to pay the amount in the Determination (paragraph 94 of the Determination).


20 In the JBBJ application its ground 6 presents in these terms:


6. [JBBJ] was not a party to the contract and therefore:


6.1 was not entitled to make an application under section 25 of the Act and therefore that section was not complied with;



6.2 section 26.1 was not complied with and the adjudicator was required to dismiss the application under section 31(2).


Underlying facts


21 The basic underlying facts were not in any degree of contention as between the parties. Essentially, argument proceeded on the basis of the unchallenged affidavits submitted on behalf of the applicants.


22 In the Goldvance application, CIV 2376 of 2013, the applicant filed an affidavit of Terry Graham Evans sworn 5 September 2013. The adjudication determination by Mr Court appears as attachment TGE-3 between pages 51 and 86 of that affidavit.


23 In the Escape Design application, CIV 2375 of 2013, again Mr Evans swore an affidavit (of 5 September 2013). Attachment TGE-3 to that affidavit (pages 73 to 110) is Mr Court's adjudication determination. Here, there arises the ground 6 controversy, in that on 25 November 2013 Mr Court, under cover of a letter of the same day to the parties, purported to issue a corrected determination - invoking s 41(2)(a) and (c) of the CC Act and containing certain amendments (which were highlighted in yellow). Mr Court refers to the document as his 'attached amended determination'. The amended Escape Design determination is annexed to the affidavit of Alana Rebecca Salsano, sworn 25 November 2013.


24 The ground 6 challenge to this determination raises the question of whether it was open to Mr Court as a matter of law to alter his determination by the highlighted amendments, in accord with s 41(2)(a) and (c) of the CC Act. For reasons I explain subsequently, I conclude it was not.


25 Upon the third application, CIV 2374 of 2013, concerning JBBJ, an affidavit by Mr Evans, again sworn 5 September 2013, is read. Attachment TGE-4 to that affidavit, at pages 129 – 161, is Mr Court's JBBJ adjudication determination. On its face it bears a completion date of 27 August 2013. Its ‘release’ date is said to be 3 September 2013.


26 Those materials comprise the essentially uncontested, factual evidence underlying the three applications seeking orders absolute for certiorari.


Two key features


27 There arise on the three applications to Mr Court two factually key features.


28 First, the Claimants were all effectively seeking a monetary remuneration which was calculated as a percentage of amounts to be paid by third party home and land package purchasers to one or other of the Red Ink Homes Group corporations (to Red Ink Homes in the Goldvance and Escape Design determinations, or the related entity, 101 Residential Pty Ltd, in the JBBJ Plans determination).


29 Second, was the wholly verbal character of the underlying construction contracts found to subsist by Mr Court, but then curiously coupled to his allied finding as to an absence in each oral contract of any 'express terms'.


30 I say a little more about each of these two key features below.


First key feature: claimed agreed percentage remunerations from Red Ink Homes Group Corporations


31 The present is not the more typical dispute over a fixed sum claimed for services rendered under a construction contract by a contractor, where money usually needs to keep flowing down a subcontracting line for the building work to proceed.


32 The applications under the CC Act by the Claimants to Mr Court proceeded as cases of unmet entitlements to percentage commissions, by persons who had performed drafting, design, quotation or costing work for Red Ink Homes Group Corporations preparatory to a Fixed Price Building Contract (FPBC), whilst also signing up purchasers for the prospective FPBC, to be formed between the purchaser and a Red Ink Home Group company as vendor and home builder.


33 In entering the FPBC with a Red Ink Homes Group company the home purchaser otherwise contracted wholly independently of the Claimant.


34 Remuneration was sought by the Claimant calculated by reference to the price ultimately agreed to be paid to the relevant Red Ink Homes Group Company under the discrete FPBC, to which the claimant was not party.


35 In such circumstances, it is not difficult to envisage subsequent problems, where a FPBC does not proceed to the ultimate construction of a house. Or sometimes the contractually envisaged home might progress slower to completion than anticipated or stagnate completely.


36 Such events carry economic potential to deliver reverberating effects upon the Claimants’ remuneration, if it is to be assessed by reference to FPBC sums stipulated as payable to the home builder, but in fact never received. In instances of a home purchaser’s breach or the frustration of a FPBC, the contract price might never be fully paid to the home builder.


37 Ultimately, however, the crucial point about this basis of remuneration is that, as described in Mr Court's relevant determinations, this basis of remuneration is necessarily premised upon the entitlement having been expressly agreed to as between the contracting parties.


Second key feature: wholly oral contract


38 The second key feature, arising upon these applications, concerns Mr Court's conclusions in all determinations, that legally binding and enforceable, wholly oral contracts were fully perfected - between claimant corporations that are closely tied to a natural person who actually performed all the pre-contractual design, drawing, costing or quotation work and a Red Ink Homes Group corporation.


39 The natural person in the case of Goldvance was a Mr Shane Hoare. For Escape Designs, the person concerned was a Mr Marco Marusco. The natural person said to be behind the corporate entity JBBJ Plans, was a Ms Jemma Costigan, although as I note further on, JBBJ only seems to have been incorporated well after the contract had been formed.


40 These natural persons actually carried out the pre-contractual design, drawing, quotation or costing work with prospective house and land purchasers. Their associated corporations were assessed by Mr Court to have reached wholly oral contracts with one or other of the Red Ink Homes Group corporations (in the Goldvance and Escape Design applications, this was with Red Ink Homes Pty Ltd; in the JBBJ Plans matter, with 101 Residential Pty Ltd for the substantive component of the claim, but also with Red Ink Homes Pty Ltd for a significantly smaller sum).


41 There is little difficulty in principle over the CC Act applying to govern a wholly oral construction contract. An oral agreement can meet the statutory description of 'construction contract', for the purposes of that Act: see the definition of 'construction contract' in s 3 CC Act, and particularly the words, 'whether in writing or not'.


42 As long as work done or services undertaken meets one of the definitions seen at (a) through (d) in the CC Act’s definition of a 'Construction Contract', the protective provisions of the CC Act may be engaged, irrespective of whether the underlying construction contract is oral.


43 Goldvance, Escape Design and JBBJ separately sought, then obtained CC Act adjudication relief from Mr Court. In each case this was founded upon what they contended were the binding wholly oral construction contracts, perfected for the purpose of the CC Act.


44 The Claimants’ respective construction contracts were respectively concluded by Mr Court to have been perfected, in April 2009 in the case of Goldvance, in August 2011 in the case of Escape Designs, and October 2011 in the case of JBBJ.


45 Whilst there is no conceptual difficulty at all with the CC Act being made applicable to a wholly oral construction contract, there must nevertheless follow some pragmatic ramifications inherent in what is found to be wholly verbal agreement.


46 Ordinarily, a wholly binding oral agreement would come into existence following an exchange of words as between party A and party B, or through representative natural persons acting where the parties concerned are corporations.


47 In the present case, the contracting Red Ink Homes Group corporation was found to have been represented in oral discussions with Messrs Hoare or Marusco and Ms Costigan, by either Mr Terry Graham Evans or by a Mr Gino van der Meer.


48 This occurred at various meetings held with the natural persons concerned acting on behalf of each corporation, according to Mr Court's reasons in each case. In such situations it is vital to know what words constitute the oral contract.


49 Without the passing words being ascertained, the terms of the verbal bargain cannot readily be ascertained. This, as we will see, is a problem for the Claimants.


Contractual terms: remuneration


50 If nothing at all is agreed about a contractor's level of remuneration for services to be provided under a construction contract, then by s 14 and s 23 of the CC Act under sch 1, some implied provisions can apply. In particular cl 2 of sch 1 says:


2. Contractor entitled to be paid

(1) The contactor is entitled to be paid a reasonable amount for performing its obligations.

(2) Subclause (1) applies whether or not the contractor performs all of its obligations. (my emphasis)


51 It will be seen however that cl 2 above says absolutely nothing whatsoever about remuneration by a percentage commission agreement.


52 Here, the three Claimants did not ever seek remuneration for services as a 'reasonable amount' under cl 2. Much to the contrary, they all pursued what they asserted was money contractually due to them as a percentage of the relevant FPBC price. In this respect, they succeeded before Mr Court.


53 Under what can only have been found to be an express term of oral construction contracts - as contended for by each of Escape Design, Goldvance and JBBJ, the Claimants were assessed by Mr Court to be fully entitled to recover from Red Ink or Blue Diamond as their remuneration for professional services the claimed percentage commission.


54 As matters transpired, it would appear that some FPBC home and land purchases from Red Ink or Blue Diamond, for one reason or the other, simply did not go on to proceed with the full performance of their FPBCs, some even to a 'slab down' point of construction.


55 Breach or repudiation by the relevant home purchasers then led Red Ink and Blue Diamond to decline payment upon some invoices by the Claimants for their pre-FPBC services. In particular, it was asserted that payment was not yet due where 'slab down' was not reached.


56 In that context, a very obvious question arose before Mr Court. What express or implied terms of these wholly oral construction contract governed the Claimant's rights to perceive a percentage remuneration in that situation?


57 Obviously, for an oral contract answers to those questions are usually ascertained by objectively evaluating the words passing verbally as between relevant persons acting on each side of the construction contract.


58 However, here Mr Court looks to have proceeded upon a basis that terms in oral construction contracts as to the timing of a claimant’s entitlement to receive a percentage remuneration from Red Ink and Blue Diamond - were essentially 'optional', where the FPBC had not proceeded to its performance.


59 Mr Court was dismissive of arguments by Red Ink Homes and Blue Diamond that various FPBCs had not been performed, even to a point of a slab being laid, so that it was put that the occasion for making payments to the Claimants by reference to various FPBC's, had not yet arisen.


60 This seemed to be because Mr Court thought the Claimants, by not being parties to each FPBC, had no 'control' over whether that contract was ultimately performed to slab down.


61 Mr Court appears to have said that because each claimant had no ability to influence the performance of an FPBC, any remuneration term of the oral agreement with a Red Ink Homes Group corporation which linked the time for payment of percentage remuneration to the event of slab down, could, in effect, just be ignored.


The law: introduction and history


62 My reasons in Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; (2011) 42 WAR 35 [60] address the underlying policy of the CC Act. Where there is a construction contract the legislature has tried to set down an informal, speedy means for resolving payment disputes between parties to construction contracts in order to 'keep the money flowing'. The regime nevertheless fully preserves the parties' rights to formally litigate or arbitrate at a later time over the substantive underlying merits of their dispute: see observations at [102] and [107] in Anstee-Brook .


63 Hence, the overall scheme of the CC Act sets up something of an interim 'triage' arrangement enabling a contractor to seek and obtain a swift payment so as, in effect, not to be 'bled dry' by what could prove to be a drawn out process of litigation attrition. An interim outcome is obtained by allowing a speedy access to an appointed adjudicator who will quickly assesses the dispute and provides a reasoned decision within a very limited time frame.


64 Frequently, the chosen adjudicator is not a lawyer and will have no legal training or expertise (this looks to be such a case). Given that, any court scrutinising an adjudicator's reasons needs to make quite considerable allowances to respect the obvious informality of a triage relief regime. I do. Nevertheless, an adjudicator's decision remains reviewable in the Supreme Court. To the extent a decision displays jurisdictional error, this court's jurisdiction to intervene to grant prerogative relief will be engaged: see Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319 [8] (McLure P) addressing the irrelevance of s 46(3) of the CC Act as any constraint against judicial review. See also Murphy JA (with whom Martin CJ agreed) at [120].


65 Whilst this Court has jurisdiction to intervene, to correct jurisdictional error or error of law on the face of the record, the nature of prerogative relief is, as I observed in Anstee-Brook , ultimately discretionary: see [107].


The law: Pre- Kirk


66 The interaction as between s 31 CC Act, regarding an adjudicator's determination(s), s 46(1) and (2) on a limited power of review by the State Administrative Tribunal (SAT), and the privative clause in s 46(3), raises at least three linked questions. The questions have been the subject of discussion in a line of local cases, beginning with the decision of Beech J in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19.


67 The first is what, if any, scope is there by reason of s 46(3) for judicial review, both in terms of error of law on the face of the record and jurisdictional error. Second, if judicial review is limited to jurisdictional error, is that to be approached on a basis the adjudicator is assessed as being akin to an administrative tribunal in the Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 sense, or are they more properly to be assessed as effectively in the position of an inferior court and thereby only exposed to judicial review for a narrower range of possible jurisdictional errors. Third, where an applicant challenges an adjudication on a basis of a so-called 'jurisdictional fact' being absent, is a Court to review the existence or otherwise of that fact, or will it merely examine whether the decision-maker's belief, opinion or satisfaction as to the relevant fact was reached by an erroneous reasoning process?


68 Questions 1 and 2 were canvassed in my Anstee-Brook reasons of 14 July 2011 at [13] - [41]. Those reasons were issued in a context of a contested order nisi seeking certiorari. They were delivered during the interval following concluded argument, but pending delivery of the reasons for decision of the Court of Appeal in Perrinepod .


69 Since Perrinepod , there have been further single judge decisions concerning the CC Act, particularly by Pritchard J in Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304, and by EM Heenan J in Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2] [2013] WASC 161.


70 It is appropriate, before turning to the presenting issues, to revisit some aspects of the law on orders absolute for certiorari based on asserted jurisdictional error made by an adjudicator under the CC Act.


71 The starting point for discussion is, of course, the text of the CC Act provisions. I set out s 31 and s 46:


31. Adjudicator's functions

(1) …

(2) An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) -

(a) dismiss the application without making a determination of its merits if -

(i) the contract concerned is not a construction contract;

(ii) the application has not been prepared and served in accordance with section 26;

(iii) an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or

(iv) satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason;

(b) otherwise, determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment, or to return any security and, if so, determine -

(i) the amount to be paid or returned and any interest payable on it under section 33; and

(ii) the date on or before which the amount is to be paid, or the security is to be returned, as the case requires.

(3) If an application is not dismissed or determined under subsection (2) within the prescribed time, or any extension of it made under section 32(3)(a), the application is to be taken to have been dismissed when the time has elapsed.


46. Review, limited right of


(1) A person who is aggrieved by a decision made under section 31(2)(a) may apply to the State Administrative Tribunal for a review of the decision.

(2) If, on a review, a decision made under section 31(2)(a) is set aside and, under the State Administrative Tribunal Act 2004 section 29(3)(c)(i) or (ii), is reversed the adjudicator is to make a determination under section 31(2)(b) within 14 days after the date on which the decision under section 31(2)(a) was reversed or any extension of that time consented to by the parties.

(3) Except as provided by subsection (1) a decision or determination of an adjudicator on an adjudication cannot be appealed or reviewed.


72 In Perrinepod , the Court of Appeal unanimously concluded s 46(3) merely limited a review by the SAT. In other words, s 46(3) was only directed at s 46(1), nothing more.


73 Consequently, where as here, there is a substantive determination reached on the merits by an adjudicator on a contractor's claim in a payment dispute, that determination is not open, as a consequence of s 46(3), to being reviewed and challenged before SAT.


74 Otherwise, however, s 46(3) of the CC Act by reference to Perrinepod , has now been assessed as having nothing to say about possible intervention by this court via the prerogative writs, or by judicial review under RSC O 56.


75 Before Perrinepod , Beech J in O'Donnell Griffin assessed s 46(3) to reflect an underlying policy of the CC Act that 'payment disputes' should not interrupt the cash flow required to ensure timely performance of construction contracts. The policy explained the subjugation of such disputes to effectively the triage relief early decision regime from an often non-legally qualified adjudicator in construction and related industries. Hence s 46(3) was assessed in O'Donnell Griffin to exclude any judicial review as to whether the facts, matters and circumstances as enumerated in s 31(2)(a)(i) - (iv) were established or not.


76 O'Donnell Griffin Pty Ltd was decided before the seminal decision in Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531. Post- Kirk it was sharply in focus that Ch III Constitution courts of Australia hold a constitutionally unassailable sphere of supervisory jurisdiction, which State legislation cannot exclude or diminish.


The law: Post- Kirk


77 After Kirk , the scope of s 46(3) arose again for consideration in Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80. In Thiess , Corboy J noted s 46(3) did not refer in terms to the forms of prerogative relief being excluded [79]. He observed that as a privative clause s 46(3) must be 'strictly construed'. So read it would 'not prevent an aggrieved respondent from seeking prerogative relief in respect of a decision by an adjudicator to refuse to dismiss an adjudication application under s 31(2)(a)' [80], meaning prerogative relief for jurisdictional error [59].


78 Irrespective of whether ordinary principles of statutory construction required s 46(3) to be construed that way, post- Kirk , it was clearly beyond the power of the State Parliament to exclude judicial review based upon jurisdictional error [81]. However, in Thiess , Corboy J observed that the same was not true of judicial review based upon error of law on the face of the record, if an exclusion provision said so in clear terms.


79 In 2011 in Anstee-Brook , I followed the Theiss line as regards an assumed non-availability of a challenge based on an alleged error of law on the face of the record [42] – [43]. However, that position, then evaluated on a contested order nisi argument, now needs to be revisited, following the reasons in Perrinepod .


80 In Perrinepod , Murphy JA (with whom Martin CJ agreed) noted in regard to s 46(3) specifically, that it did not refer expressly to 'judicial review' or to the 'forms of prerogative relief'. On this view, s 46(3) excluded only an appeal to or review by SAT. Hence, in substance the provision read:


(3) Except as provided by subsection (1) a decision or determination of an adjudicator on an adjudication cannot be appealed or reviewed [by the State Administrative Tribunal].


81 McLure P observed that 's 46(3) does not exclude judicial review of a decision or determination of an adjudicator made under s 31(2)(a) or (b) of the Act' [7].


82 The Perrinepod approach therefore reads s 46(3) to merely restrict the aggrieved party's recourse to SAT.


83 However, before stating s 46(3) did not exclude judicial review, Murphy JA observed Perrinepod that 'an appointed adjudicator's determination under s 31(2)(b) is not amenable to judicial review for non-jurisdictional error of law' [118]. By contrast, McLure P had observed that the 'court's judicial review power is confined to intervening when a decision-maker has made a jurisdictional error (or there is an error of law on the face of the record)' [11].


84 Murphy JA relied for what was declared expressly as an obiter view, upon O'Donnell Griffin [102] and Thiess [59]. However, those earlier cases manifested views as to the exclusionary breadth of s 46(3) no longer the law, post- Perrinepod .


85 Subsequently, Pritchard J in Cape Range [83] and EM Heenan J in Ellis [No 2] [75], [79] have applied the approach of Murphy JA – in equating the adjudicator from a Craig dichotomy jurisdictional error perspective to an inferior court, rather than a tribunal. I propose now to also take that approach in these applications. Whether or not the alignment of an adjudicator to that of an inferior court’s position is conclusively settled, is a matter for another day.


86 By reference to the Craig dichotomy a standard of lesser scrutiny may be explained as follows - see 184 CLR 179 – 180:


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 circumstance, 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 jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error (179 - 180).


87 However, as noted earlier in that case:


Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case (177 - 178). (My emphasis in bold)


88 A characteristic of an inferior court is the power to authoritatively determine the existence or non-existence of a jurisdictional fact, that is, a fact on which the exercise of its jurisdiction depends: see reasons of Pritchard J in Cape Range [75]. In such a case, a court reviewing a determination 'would examine the decision-maker's process of reasoning leading to the conclusion that the jurisdictional fact exists … but would not inquire into the actual existence of that jurisdictional fact' [76].


89 The scope of such review would be in terms of 'whether the opinion is one which would be formed by a reasonable person with an understanding of the legislation in question, or which was reached by taking into account irrelevant considerations or by misconstruing the terms of the legislation, or which was the result of serious irrationality or illogicality': Cape Range [74]. That, at any rate, is the approach to a 'broad' jurisdictional fact. By contrast, in dealing with a 'narrow' jurisdictional fact, a reviewing court would determine for itself whether the jurisdictional fact existed [73].


90 In Cape Range , Pritchard J referred to a need for an adjudicator to engage in an exercise of contractual construction to determine whether there is, for example, a 'construction contract' and hence a 'payment dispute' under s 31(2)(a)(ii). Section 31(2)(a)(iv) similarly refers to the adjudicators' satisfaction as to a state of things. In combination with the inferior court characterisation afforded to an adjudicator, this led Pritchard J to conclude s 31(2)(a) sets out 'broad' jurisdictional facts [79] - [83]. I also propose to follow that approach.


91 Finally, I would also respectfully adopt and apply Pritchard J's observations in Cape Range as to the informal nature of the adjudication process:


[I]n 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 a right to litigate or arbitrate about any substantive areas of dispute underlying those payment disputes [58].


92 In Ellis [No 2] EM Heenan J observed that this aligns with the 'informal, expeditious, provisional' nature of an adjudication determination [84], [88].


Common grounds of challenge: evaluation


93 Grounds 4 and 5.4 cover basically the same underlying grievance, only from a different perspective. I would prefer to conduct the analysis on the basis of ground 4, rather than from the ground 5.4 perspective of an asserted failure to provide adequate and proper reasons - although I accept the difficulties arising may be viewed from that perspective as well.


94 In all three determinations, Mr Court invariably commences by stating an early conclusion as to the existence of an enforceable, yet wholly oral construction contract.


95 Mr Court appears to conclude (although it is not clear to me how) that for each oral construction contract, the natural persons acting for the relevant corporate parties agreed by exchanged words, that each of the Claimants would be remunerated by an agreed percentage of the fixed price as set down in each FPBC subsequently entered into by a Red Ink Homes Group company with a home purchaser. The relevant remuneration percentage was found to be set, in the case of Goldvance, at 4%, for Escape Design, initially 3%, later rising to 3.5%, and in the case of JBBJ Plans, at 3%.


96 For wholly oral contracts, percentage remuneration for the claimants on this basis can only have been agreed by words passing as between natural persons attending at the relevant meetings - where the oral agreements in question were found by Mr Court to have been legally perfected.


97 The key underlying difficulty for all determinations is that Mr Court does not at any point ever find what words had been exchanged, in order to found a wholly oral agreement, namely, who actually said what to who, and when, in terms of a process of offer, counter-offer (if any), and acceptance - that is, the process of forming a contract. The actual words that passed as between the relevant natural persons always remain something of a mystery.


98 Such a defect might be overlooked (in a recognised context of informality) if there were at least some essential components of the passing conversations found to give rise to the agreed percentage remuneration terms in binding oral contracts, identified. However, in each of three determinations, Mr Court does not even approach attempting, let alone achieving, that result.


99 Mr Court's adjudications commence from his conclusion as to the existence of a binding wholly oral construction contract, then attempt to work backwards from those conclusions. Unfortunately, a backwards approach has led Mr Court seriously astray.


100 Mr Court appears to reach implicit findings as to spoken words passing, over the issue of consensus over percentage remuneration rates, as regards each claimant's basis of reward. This, of course, is necessary for there to be some underlying consideration to found a legally enforceable, albeit wholly oral, 'construction contract' for the purposes of the CC Act.


101 Astonishingly, however, Mr Court then goes on in each determination to conclude that each of the oral contracts contained no express terms: see Escape Design reasons at par 57, equivalently in the Goldvance determination at par 61, and again in the JBBJ Plans determination at par 73.


102 The founding premise of a total absence of any express terms, in what are nevertheless found to be binding wholly oral contracts, simply cannot stand unchallenged. That is so since the same parties have earlier been found by Mr Court to have agreed upon percentage rates of remuneration to each contractor Claimant. Hence, the parties' agreement upon a percentage remuneration at a given rate must be at least one express term in each construction contract.


103 Mr Court's (inconsistent) conclusions in all three matters as to there being no express terms in the oral construction contracts presents as illogical, even bizarre. It is simply irreconcilable with his earlier conclusion that the parties agreed to remuneration for the claimants as a commission on each completed FPBC.


104 An irrational conclusion as to an absence of express terms in oral contracts is something of a rarity and, so I conclude, meets the high threshold of showing a misapprehension or disregard for the nature or limits of an adjudicator’s functions or powers, Craig at 177.


105 Had Mr Court found there was no agreement upon a remuneration term, it then may have been possible for each contractor to prove for a 'reasonable amount', in return for performing obligations, relying on implied provisions applicable under the CC Act.


106 In that respect, s 14 of the CC Act provides The provisions of sch 1 div 2 are implied in a construction contract that does not have a written provision about the amount, or a means of determining the amount , that the contractor is entitled to be paid for the obligations the contractor performs. (my emphasis in bold)


107 However, s 14 of the CC Act was always inapplicable here. It was found by Mr Court that the wholly oral agreements between the Claimants and the Red Ink Homes Group corporations did actually fix a 'means of determining the amount, that the contractor is entitled to be paid'.


108 Hence, an attempted recourse to implied provisions of the CC Act, on a premise of there being no written provision in a construction contract, manifests significant jurisdictional error.


Resolution: Grounds 4 succeeds


109 For the 'usual' case, the adjudicator found that payment was to be rendered after the claimant issued an invoice. This was at or about a 'slab down' for each constructed home. This arrangement, Mr Court said, in part of his Escape Design determination, referred to what he called the 'agreed process which lead towards raising of a payment claim and reimbursement (when the process apparently flowed without issue)'. The adjudicator illustrated this in an accompanying flow chart [13].


110 However, later on the adjudicator then said that this 'usual' position was not to be the payment arrangement, where there was no slab down. How he reached that view is highly problematic. The reasoning in that regard is exemplified in these passages in the JBBJ determination:


[82] I consider the trigger for payment, ('slab down stage'), appears to be a stage set for convenience and ease of assessment of when payment claims can be submitted. In this regard I agree with the Respondents' statement referring to slab down as being '… the catalyst for its [the Applicant's] entitlement to payment …'.


[87] Having previously satisfied myself that the applicant had no authority and therefore no ability to (a) influence execution of the FPBC or (b) influence commencement of the construction process to enable it to lead to slab down of the [Red Ink] homes or 101 Residential homes, it follows that I do not agree with the Respondent's contention in this regard.


111 I refer also in this regard to pars 71, 76, 89.1, 89.5 and 89.9 of the Escape Design determination.


112 In effect, this adjudicator has determined that an application of 'usual' agreed terms of a construction contract, was optional. Hence, he found such a term, as to timing of payment could be discarded, if not convenient.


113 Mr Court seemed to have assumed he ought not to apply the usual term as to the timing of payment, because the Claimants could not 'influence' an event which, he found, was the 'catalyst' for their 'entitlement to payment'. This approach to contractual interpretation was arbitrary and fundamentally wrong. It manifests as a clear misapprehension by the adjudicator of his power and function.


114 Contractual terms apply uniformly. They cannot be ignored simply because they are not 'convenient'. Agreed terms often expose the parties to obligations or risks arising from external circumstances over which they have no control. That is the nature of a bargain. Inconvenience to a party is not a proper or available basis for not unilaterally applying terms of an agreement.


115 It would have been open to the parties contractually to agree orally, through the relevant natural persons, upon when and whether and how payment was to be made if the FPBC did not progress to the point of 'slab down'. However, the adjudicator does not make a finding to that effect.


116 Nor can these adjudications be salvaged by the observation that there were 'no express terms' in the oral construction contracts. That position is wholly inconsistent with an earlier conclusion the parties had orally agreed that upon slab down, the claimant would invoice and be paid a percentage of the FPBC price. The contrary observation is perverse. The approach cannot pass muster, even acknowledging the usual 'hands-off' policy consideration for courts, I have previously discussed in relation to the CC Act.


117 Moreover, the present were not instances where s 9 of the CC Act could apply. Section 9 applies where there is a provision in a construction contract which 'purports to make the liability of a party (A) to pay money under the contract to another party contingent, whether directly or indirectly, on A being paid money by another person (whether or not a party).' Here, payment to the claimants did not depend on the relevant Red Ink Homes Group corporation being paid by a home purchaser. Here, the timing of the obligation to make payment to the claimants was aligned to the work done under the FPBC progressing to a stipulated stage of progress. If slab down was not reached, neither was the occasion for rendering payment to the claimants.


118 [I cannot allow the occasion to pass without also remarking upon a frequently used phrase of Mr Court, as to the respondents not producing 'contemporaneous and irrefutable' evidence: see pars 52, 54.7 and 54.10 to 54.13 in the Escape Design determination. That boilerplate is seen very frequently deployed. Although not otherwise a jurisdictional error or relevant to my determinations, I observe the respondents were under no such irrefutation obligations. The contrary assertion was misconceived.]


119 Following the Craig dichotomy to view this adjudicator as akin to an inferior court from a review perspective, I nevertheless reach the firm conclusion that what has occurred manifests as clear jurisdictional error.


120 On my assessment, Mr Court misapprehended or disregarded the nature and limits of his functions and powers, as regards the oral term of a construction contract he effectively chose to ignore as inconvenient. That was not a proper or rational approach to the applicability of a contractual term. Because of that, certiorari must, in the end, issue to quash all his three determinations: see Craig (163), (177).


121 In reaching this view, I am cognisant of observations in Craig of that plurality (Brennan, Deane, Toohey, Gaudron & McHugh JJ) at (180) concerning errors of law which might be set aside on an appeal, but would not ordinarily constitute jurisdictional error. I also keep in mind the observations by Pritchard J in Cape Range [56] to the effect that an adjudicator does not need to express himself or herself with the same degree of legal precision as a court, and also that a suitably pragmatic view needs to be adopted in determining the existence of jurisdictional error. Nevertheless, what has happened here, at the end of the day, is simply intolerable - no matter how low the bar is set. In all three determinations jurisdictional error has been established.


122 By s 36(d) of the CC Act an adjudicator is obliged to give reasons for a determination. The present reasons display, even viewed as the work of someone without legal training, fundamental misconceptions as to this adjudicator's functions and powers in all three matters such as to fatally infect each determination.


123 Alternatively, had I assessed certiorari as unavailable, I would have allowed each adjudication determination to be registered. However, because of what I assess to be underlying errors so tangible and almost certain of ultimate reversal when assessed on their substantive merits before a court or arbitrator - I would have ordered the full amounts claimed need to be secured by unconditional bank guarantees from each relevant claimant - so repayment would subsequently be assured – upon the eventual merits determinations of those underlying disputes.


124 Each decision must be quashed by orders absolute by certiorari.


Escape Design – Ground 6: Error


125 On my assessment, there is a further serious jurisdictional error made by the adjudicator in the Escape Design determination by a failure to identify in his initial decision which of two respondents to that application was actually the entity liable to meet a percentage commission in the amount ultimately found of $254,871.77 inclusive of GST. The initial determination left that critical point ambiguously open.


126 The 11th hour attempt by Mr Court to address the manifest deficiency - purporting to correct what he called an accidental slip or omission or a material mistake in the description of a person, thing or matter - by s 41(2)(a) of the CC Act does not, on my assessment, hold water. The adjudicator's communication of 25 November 2013 to the claimants' solicitors in terms of what had been 'brought to [his] attention' and as to what he 'can concur' with, is logically unconvincing.


127 The underlying problem was not one of slip, omission or mistake. It was a terminal problem of failing to make the essential determination as to which of two potential entities was to be exposed to the ultimate payment obligation. The failure to determine which of the respondents bore the payment obligation cannot legislatively be excused or brushed off as a mere slip, omission or mistake under s 41(2)(a).


JBBJ – Ground 6: Error


128 The JBBJ Plans determination also manifests a serious error by a finding that a binding and legally enforceable oral contract had been consummated as between the Red Ink Homes applicants and Ms Costigan's corporation, JBBJ Plans Pty Ltd.


129 That finding was as to an oral contract made in October 2011. However, that was 12 months before JBBJ was even incorporated as a living corporate entity. Attempts to skirt this inescapable problem are seen at pars 37 to 47. Again, this does not pass muster. In particular, the apparent fixation by the adjudicator upon JBBJ as only a 'business entity name' of Ms Costigan insults a cardinal grounding principle of corporations law concerning the separate legal personality of a corporation. JBBJ was not merely a name but a separate legal personality, once it was incorporated.


130 On the basis of a separate legal personality, JBBJ as a corporation could enter contracts, and sue upon them - once it existed. Correspondingly, JBBJ could not enter contracts when it did not exist, any more than a natural person could enter a binding contract from the womb.


The remaining grounds fail


131 The residual grounds are linked to a general challenge of the Red Ink Homes Group applicants that there was no operative identifiable construction site in FBBC's that did not proceed and, therefore, no 'construction work'. From that premise, it was submitted there was no construction contract as defined in s 3, and hence an absence of a jurisdictional fact required to be established by s 31(2)(a)(i). So it was put, in the absence of a construction contract, the adjudicator 'must', that is, was obliged to dismiss each application without making a determination of merits: see s 31(2)(a). It is put that only if the requirements of s 31(2)(a) by way of jurisdictional facts are established, may an adjudicator then proceed to a determination under s 31(2)(b).


132 Whilst there may never have been construction work performed for the purposes of some of the FPBCs, it nevertheless is possible, in my view, to fulfil the definition of a construction contract under the CC Act - if a contractor had an obligation to provide 'professional services' that are related to construction work by reference to s 5(2). By s 5(2) of the CC Act 'professional services' are related to construction work, if they are:


(a) services that are provided by a profession and that relate directly to construction work or to assessing its feasibility (whether or not it proceeds) -


(i) including surveying, planning, costing, testing, architectural, design, plan drafting, engineering, quantity surveying, and project management services but

(ii) not including accounting, financial, or legal services; or 133 Mr Court concluded that there existed binding oral construction contracts as between the Claimants and one or more of Red Ink Homes or Blue Diamond. The underlying work carried out clearly met the extended definition of 'construction contract' (albeit oral) as the work (albeit performed off site) met the definition of 'professional services'.


134 The activities that fall within 'professional services' are ascertainable under s 5(2)(a)(i).


135 The adjudicator found that pre-contractual drafting, drawing, planning and costing work as carried out by the Claimants' representatives were services provided by a profession and which related to construction work. In my assessment, Mr Court's conclusions in the affirmative to that end were open on the evidence.


136 Where at a point there has existed a binding FPBC as between Red Ink Homes and a home and land purchaser client, and which FPBC was brought into existence by the efforts of a claimant, the words in parentheses as seen in s 5(2) 'whether or not it proceeds', as I assess them, will bite. They extend to cover future construction work that clearly was then anticipated (objectively) to be performed under a FPBC, if performed.


137 That the envisaged work was ultimately not completed, or even begun at a construction site, would not in my view inhibit the fulfilment of cl (c) of the definition of 'construction contract'.


138 The key point is that at some earlier point in time there is construction work that is to be carried out under the construction contract. It is enough, on my view, that services provided by a claimant can be ' related to ' the anticipated future construction work. Axiomatically, that must be so for cases in respect of services such as the preparing of pre-contractual plans or drawings pursuant to which a dwelling is anticipated to be constructed on land in the future.


139 So, on my view, it is not necessary that there must exist, for the purposes of validly meeting the definition of 'construction contract' some identifiable site at which construction work has been begun or was performed. That appears to be the underlying thrust of all the applicant's residual challenges. It is enough there be at some earlier point in time a contract which identifies a location at which future construction work is to be carried out.


140 The services provided by the commission Claimants in these determinations therefore were 'professional services' that were 'related to' future construction work.


141 All residual grounds contending to the contrary therefore fail.




142 The three adjudication determinations are seriously flawed by jurisdictional errors in respects now identified.


143 Notwithstanding the acknowledged policy of the CC Act to keep money flowing to contractors and subcontractors and the acknowledged informality and triage character of the protective processes as set down by the CC Act, there is ultimately a line that must not be crossed. What transpired here by three determinations is simply not capable of being brushed over - no matter how low a threshold for curial review and intervention is set. The errors as identified are simply too grave and fundamental not to require this court's intervention to quash.


144 Moreover, there is no basis to refuse certiorari on a discretionary basis. To turn a blind eye to such serious underlying jurisdictional errors as are now identified would be an abrogation of judicial responsibility towards upholding a society governed by laws rather than by arbitrary inclinations. I endorse the observations made in Cape Range [56] concerning a very valid point that Parliament would not have intended an adjudicator to express himself or herself with the same degree of legal precision as a court when examining the terms of a contract or applying the requirements of the CC Act. But that was not an invitation towards an acceptance of arbitrary or irrational decisions. There presents a point where demonstrated jurisdictional error is so manifest a court simply must intervene to quash.


145 Grounds 4 and 5.4 succeed in all applications. Grounds 6 in each of the Escape Designs and the JBBJ matters also must be upheld.


146 Orders absolute for certiorari must issue quashing the three determinations.