STEEL CONTRACTS PTY LIMITED v RICKY WILLIAM SIMONS TRADING AS LITTLE LIFTER, RICHARD POINER AND ADJUDICATE TODAY PTY LIMITED [2014] ACTSC 146 (19 June 2014)
APPEAL - GENERAL PRINCIPLES – Application for leave to appeal – Consideration of availability of leave under Building and Construction (Security of Payment) Act 2009 (ACT) – Act sets high bar for leave application – Application dismissed
APPEAL - GENERAL PRINCIPLES – Extension of time for seeking leave to appeal – Relevant factors to be considered when deciding application – Delay in commencing appeal proceedings not reasonable – Application dismissed
APPEAL - GENERAL PRINCIPLES – Review by prerogative relief – Court can grant prerogative relief despite Building and Construction (Security of Payment) Act 2009 (ACT) – Special circumstances must exist for extension of time to be granted – Extension of time should not ordinarily be granted where there are no or few prospects of success – Application dismissed
Building and Construction Industry (Security of Payment) Act 2009 (ACT), ss 7, 15, 16, 18, 19, 21, 24, 26, 27, 43, Pts 3, 4
Business Names Act 1963 (ACT), s 5
Commercial Arbitration Act 1986 (ACT), s 38(5)
Evidence Act 2011 (ACT), s 60
Court Procedures Rules 2006 (ACT), rr 2015, 2101, 3557, 5072, 6906, Pt 5.2
Air Force Association (Victoria Division) v White Manufacturing Co (Aust) Pty Ltd [1951] VLR 85
Allan Robinson Textiles Pty Ltd v Pappas [1983] 1 VR 345
Almenara v Maclellan [2004] VSC 28
Bailey v Marinoff (1971) 125 CLR 529
Brodyn Pty Ltd (t/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421
Burrell v The Queen (2008) 238 CLR 218
Carra v Hamilton (2001) 3 VR 114
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Comcare v Etheridge (2006) 149 FCR 522
Commonwealth v Rian Financial Services and Developments Pty Ltd (1991) 105 FLR 239
Denysenko v Dessau [1966] 2 VR 221
Faull v Commissioner for Social Housing (2013) 277 FLR 61
Gallo v Dawson (1990) 93 ALR 479
Giannerelli v Wraith (1988) 165 CLR 543
Gordian Runoff Ltd v Westport Insurance Corporation (2010) 267 ALR 74
Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 12 FCR 187
Jones v Dunkel (1959) 101 CLR 298
Kocak v Wingfoot Australia Partners Pty Ltd and Ors [2011] VSC 285
Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2013] NSWLEC 258
Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118
Lovejoy v Myer Stores (No 2) [1999] VSC 271
Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429
Mass (Australia) Pty Ltd v R & B Crane & Rigging Pty Ltd [2008] ACTSC 23
Okaroo Pty Ltd v Vos Construction & Joinery Pty Ltd [2005] NSWSC 45
Parker v The Queen [2002] FCAFC 133
Pines Living Pty Ltd v O’Brien [2013] ACTSC 156
Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724
Promenade Investments Pty Ltd v New South Wales (1991) 26 NSWLR 184
Ratnam v Cumarasamy [1965] 1 WLR 8
R v Meyboom (2012) 256 FLR 450
Somerville Retail Services Pty Ltd v Vi [2008] VSC 196
Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239
No. SCA 79 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 June 2014
IN THE SUPREME COURT OF THE )
) No. SCA 79 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: STEEL CONTRACTS PTY LIMITED
Applicant
AND: RICKY WILLIAM SIMONS
TRADING AS LITTLE LIFTER
First Respondent
AND: RICHARD POINER
Second Respondent
AND: ADJUDICATE TODAY PTY LIMITED
Third Respondent
O R D E R
Judge: Refshauge J
Date: 19 June 2014
Place: Canberra
THE COURT ORDERS THAT:
1. The application by Steel Contracts Pty Ltd for an extension of time within which to seek leave to appeal from the adjudication determination of Richard Poiner of 12 June 2012 be dismissed.
2. The application by Steel Contracts Pty Ltd for an extension of time within which to apply for an order in the nature of certiorari to quash the adjudication determination of Richard Poiner of 12 June 2012 be dismissed.
3. The applicant pay the first respondent’s costs.
1. On 23 February 2011, the first respondent, Ricky William Simons, delivered a Kobelco seven tonne crane to a site at Mitchell ACT.
2. He believed that he had a contract, described as a “dry hire contract”, with an entity he described as “Mass Steel”. The contract does not appear to have been in writing.
3. As I understand it, a “dry hire contract” is one where equipment is made continuously available to a hirer notwithstanding that it may not be used each day during the hire period, but is accessible for use by the hirer.
4. Mr Simons was paid $9,000 for the dry hire of the crane between 23 February 2011 and 29 March 2011 and $8,250 for the dry hire of the crane between 30 March 2011 and 3 May 2011. Subsequent invoices issued by Mr Simons went unpaid and, on 23 April 2012, Mr Simons gave notice of a payment claim under s 18 of the Building and Construction Industry (Security of Payment) Act 2009 (ACT) ( Security of Payment Act ) for $52,274.40, which included charges under the dry hire contract for the hire of the crane and also claims for other payments due for various items supplied by him.
5. The applicant, Steel Contracts Pty Limited, was, at the time the payment claim was made, known as Mass Steel Pty Limited. I shall refer to it in these reasons as Steel Contracts despite its various changes of name. It received the payment claim and gave Mr Simons a payment schedule under s 16 of the Security of Payment Act , which stated that it proposed to make no payment as it claimed that Mr Williams had contracted with another company, Mass (Australia) Pty Limited (Mass (Australia)).
6. In those circumstances, Mr Simons was entitled to and did apply, under s 19 of the Security of Payment Act , to Adjudicate Today Pty Limited, an authorised nominating authority under that section, for adjudication of his payment claim. That company was the third respondent to this application by Steel Contracts.
7. Under s 19 of the Security of Payment Act , Adjudicate Today Pty Limited referred the application to Mr Richard Poiner, an eligible adjudicator, who, on 25 May 2012, accepted the referral under s 21 of the Security of Payment Act . He was the second respondent to the application by Steel Contracts. Neither he nor Adjudicate Today Pty Ltd played any part in these proceedings.
8. On 5 July 2012, Mr Poiner released his determination (although dated on 12 June 2012) that “Mass Steel Pty Limited” (ie Steel Contracts) was liable to pay Mr Simons $52,274.40 and that the due date for payment was 8 May 2012 with interest accruing at 10.75% per annum. The parties proceeded on the basis that the relevant date for these proceedings was 5 July 2012.
9. On 14 May 2012, Mass Steel Pty Limited had changed its name to Steel Contracts Pty Limited, however, and Mr Simons later sought an amendment to the adjudication determination to reflect the change of name. Mr Poiner did amend his determination to provide that the name of the respondent liable to pay the claimant the adjudicated amount was “Steel Contracts Pty Limited”.
10. Steel Contracts has now applied by Application in Proceedings filed on 26 September 2013 for an extension of time within which to challenge Mr Poiner’s adjudication determination.
Security of Payment Act
11. The objects of the Security of Payment Act are set out in s 6 as follows:
(1) The object of this Act is to ensure that a person is entitled to receive, and is able to recover, progress payments if the person—
(a) undertakes to carry out construction work under certain construction contracts; or
(b) undertakes to supply related goods and services under certain construction contracts.
(2) In particular, this Act—
(a) grants an entitlement to a progress payment for construction work, whether or not a construction contract provides for progress payments; and
(b) establishes a recovery procedure for construction work progress payments.
12. In the Presentation Speech, the Minister described it as establishing a statutory mechanism for operators in the building and construction industries to quickly resolve payment disputes through an adjudication process. It provides an alternative to costly and protracted court proceedings that often present a barrier to subcontractors and small business operators.
13. A very helpful analysis of the genesis, purpose and operation of the Security of Payment Act has been set out by Master Mossop in Pines Living Pty Ltd v O’Brien [2013] ACTSC 156 at [17]-[25].
14. The Act applies to construction work which is very widely defined in s 7 of the Security of Payment Act and provides for payments under a construction contract, which is defined in the Dictionary to the Act
as a contract or order arrangement under which one party undertakes to carry out construction work, or to supply related goods and services for another party.
15. From Okaroo Pty Ltd v Vos Construction & Joinery Pty Ltd [2005] NSWSC 45 at [40]-[41], it seems that an “other arrangement” means something less than a binding contract and includes transactions or relationships that are not legally enforceable arrangements.
16. Part 3 of the Security of Payment Act establishes a right to progress payments and the method of determining the amount and due date of such payments. Part 4, in which ss 15, 16, 19 and 21 appear, sets outs the procedure for recovering progress payments.
17. Under s 26, within Pt 4 of the Security of Payment Act , where an adjudicator determines that a respondent should pay an amount to a claimant but the respondent does not do so, the adjudicator may, on request, provide an adjudication certificate, setting out, inter alia, the names of the claimant and the respondent, the adjudicated amount and the due date. Section 27 provides that the certificate may be filed in a court of competent jurisdiction, and may be enforced, as a judgment debt.
The proposed review
18. Steel Contracts, in its Originating Application, sought both an extension of time within which to seek the leave to appeal and the leave to appeal. An appeal is only available if leave (granted within time) is given.
19. As is generally required in an application of this kind, a draft notice of appeal was filed. It was amended prior to the hearing. The amended draft Notice of Appeal sought to appeal from all the determination of Mr Poiner. The grounds of appeal were said to be:
a. The adjudicator erred in law in that he did not have jurisdiction to determine the matter in circumstances where there was no construction contract between the applicant and the first respondent.
b. The adjudicator denied the Applicant Natural Justice and failed to exercise his powers in good faith.
c. No construction contract existed between the Claimant and the Respondent to which the Building & Construction Industry (Security of Payment Act) 2009 (“the Act”) Act applies;
d. Alternatively, the adjudicator did not properly apply his mind to a consideration of the payment claim within the parameters of the Act, accordingly the determination is void;
20. In its written submissions prepared by its counsel, Mr J Hyde, Steel Contracts also stated that it “seeks prerogative relief” as well as leave to appeal under s 43 of the Security of Payment Act . There was, however, no process seeking that remedy. No point was taken about that by Mr Simons and I will consider it as an oral application in relation to an application for judicial review of the determination of Mr Poiner.
21. The challenge by prerogative relief that Steel Contracts wished to make was that there was a jurisdictional error made by the adjudicator which was that he found, when he should not have found, that there was a construction contract between Steel Contracts (then known as Mass Steel Pty Ltd) and Mr Simons. If so, it was submitted, the determination should be quashed by an order in the nature of certiorari.
22. Despite the expression of the likely grounds of appeal, the real issue that Steel Contracts wished to agitate was whether the construction contract made by Mr Simons was with Steel Contracts or Mass (Australia). It is this central question that Steel Contracts submitted that Mr Poiner had got wrong and which it sought an extension of time to agitate.
23. Both applications for leave to appeal and application for prerogative relief have time limits within which they may be made. As the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 the rules of court, including as to time limits, must, prima facie, be obeyed.
24. Part 5.2 of the Court Procedures Rules 2006 (ACT) applies to a decision of an adjudicator. See Table 5051. In particular, since s 43(3) of the Security of Payment Act requires leave of this Court for an appeal (unless the parties consent), r 5072 requires that an application for leave be filed not later than twenty-eight days after the day on which the order appealed from is made, or any further time allowed by the Court.
25. As no application for leave to appeal was made within the required twenty-eight days, an extension of time for the application for leave is required.
26. As to the claim for prerogative relief, however, that also must, by virtue of r 3557 of the Court Procedures Rules , be sought within a time limited by the rules, namely not later than sixty days after the day when the grounds for the grant of relief sought first arose. In this case, it seems to me, given the issue to be agitated, this is when the adjudication determination was made. The court in that case may also extend the time, but only where special circumstances are shown.
27. Again, no application for an order in the nature of certiorari was made within the required sixty days and so an extension of time for the application for such an order is required and, in this case, special circumstances must be shown. An oral application for the extension of time was made.
28. I shall deal first with the leave to appeal and then the application for prerogative relief.
Leave to appeal
29. In order to consider whether time should be extended for an application for leave to appeal to be made, I turn first to see the circumstances under which that leave is available. Section 43 of the Security of Payment Act provides for an appeal against an adjudication determination. It is, in the following terms:
(1) Except as provided for in this part, a court does not have jurisdiction to set aside or remit an adjudication decision on the ground of error of fact or law on the face of the decision.
(2) An appeal may be made to the Supreme Court on any question of law arising out of an adjudication decision.
(3) An appeal under subsection (2) may be brought by any of the parties to an adjudication decision—
(a) with the consent of the parties to the decision; or
(b) with the leave of the Supreme Court.
(4) The Supreme Court must not grant leave under subsection (3) (b) unless it considers that—
(a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of 1 or more parties to the adjudication decision; and
(b) there is—
(i) a manifest error of law on the face of the adjudication decision; or
(ii) strong evidence that the adjudicator made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of the law.
(5) The Supreme Court may make any leave which it grants under subsection (3) (b) subject to the applicant complying with any conditions it considers appropriate.
(6) On the determination of an appeal under subsection (2) the Supreme Court may by order—
(a) confirm, amend or set aside the adjudication decision; or
(b) remit the adjudication decision, together with the Supreme Court’s opinion on the question of law which was the subject of the appeal, to—
(i) the adjudicator for reconsideration; or
(ii) if a new adjudicator is appointed by the Supreme Court—to that adjudicator for consideration.
(7) If an adjudication decision is remitted under subsection (6) (b) the adjudicator must make the new adjudication decision—
(a) within 10 business days after the day the decision was remitted; or
(b) within the time directed by the Supreme Court.
(8) If the adjudication decision of an adjudicator is amended on an appeal under subsection (2), the adjudication decision as amended has effect as if it were the adjudication decision of the adjudicator.
30. The significant restrictions to an appeal set out in s 43(4) are relevantly identical to the restrictions to an appeal against of an award made under s 38(5) of the Commercial Arbitration Act 1986 (ACT). I see no reason why the approach to the latter provision should not be applied to this legislation, which is similar in nature.
31. Section 38(5) of the Commercial Arbitration Act was considered by Miles CJ in Commonwealth v Rian Financial Services and Developments Pty Ltd (1991) 105 FLR 239. His Honour adopted the approach to s 38(5)(b)(i) set out by Rogers CJ at CD in Promenade Investments Pty Ltd v New South Wales (1991) 26 NSWLR 184 where his Honour concluded (at 195), after referring to the speech of Lord Diplock in Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724
The immediate relevance of His Lordship’s speech lies in the concept of perceiving an error in the award on a mere reading of the award even without the benefit of adversarial argument. Although the benefit of such argument cannot be discarded, under the first limb, it is necessary that the error be so obvious or so perceptible to the judge as to be manifest.
32. That is the primary test required to be satisfied in the present case.
33. As to s 38(5)(b)(ii), his Honour contrasted the two paragraphs so as to address this one, saying (at 244)
Looking at the paragraph as a whole, I think that it is likely that it was intended that an applicant relying upon s 38(5)(b)(i) should be restricted to showing that the manifest or clear error appears on the face of the record, and is not entitled to go beyond the face of the record itself and rely upon an error which is shown to have occurred, for example, by evidence of something that the arbitrator did or otherwise said. On the other hand, under s 38(5)(b)(ii) there appears to be no obstacle to the applicant seeking to rely upon evidentiary material to show error on the part of the arbitrator which is not apparent on the face of the award itself. Under s 38(5)(b)(i), unless a copy of the transcript of evidence or documentary exhibits or the like is annexed to the award, the applicant is denied the opportunity of referring to such material as indicating error of law on the part of the arbitrator, simply because it does not appear on the face of the award itself. An application under s 38(5)(b)(ii) is not so restricted.
In any event, under s 38(5)(b)(ii), the error does not have to be so obvious or perceptible that it is manifest in the sense necessary to fall under s 38(5)(b)(i).
34. More recently, the High Court has had occasion to consider this question in Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239. French CJ, Gummow, Crennan and Bell JJ held (at 267-8; [42])
Paragraph (b)(i) of s 38(5) may be awkwardly expressed, but the words ‘a manifest error of law on the face of the award’ comprise a phrase which is to be read and understood as expressing the one idea. An error of law either exists or does not exist; there is no twilight zone between the two possibilities. But what is required here is that the existence of error be manifest on the face of the award, including the reasons given by the arbitrator, in the sense of apparent to that understanding by the reader of the award. If that error is manifest and its determination could substantially affect the rights of at least one of the parties, as specified in para (a) of s 38(5), then the Supreme Court may go on to decide to grant or refuse leave in the exercise of the power conferred by s 38(4)(b).
35. Their Honours then addressed s 38(5)(b)(ii) but, regrettably, said little to assist in construing “strong evidence”, merely saying (at 268; [43])
If there be no such manifest error on the face of the award but there is presented to the Supreme Court on the leave application ‘strong evidence’ that an error of law was made, and its determination may add, or be likely to add, substantially to the certainty of commercial law (para (b)(ii) of s 38(5)) and also may substantially affect the rights of at least one of the parties (para (a) of s 38(5)), then leave may be granted.
36. Their Honours did add (at 269; [48]) that “the ‘strong evidence’ of error would appear from the Reasons [of the arbitrator] themselves”.
37. In that case, the inadequacy of the reasons of the arbitrators, by failing to disclose relevant factual findings and the failure to address contentions made at the hearing, constituted errors under both provisions of s 38(5)(b).
38. In the decision of the New South Wales Court of Appeal from which the appeal was taken, namely Gordian Runoff Ltd v Westport Insurance Corporation (2010) 267 ALR 74, Allsop P, with whom Spigelman CJ and Macfarlan J agreed, did address s 38(5)(b)(ii). It is not clear that the High Court, although reversing the decision of the Court of Appeal, disagreed with the analysis of that provision where Allsopp P said (at 98; [127]):
What therefore has to be shown, as a first step, is that there was strong evidence, in the sense of a strong prima facie case, that the arbitrators were wrong in law. Only if this exists does one move on to the additional consideration as to whether the determination of the question (of law) may or may be likely to add substantially to the certainty of commercial law. The Court needs to be careful not to downgrade the statutory requirement of ‘strong evidence’, that is a strong prima facie case of legal error, because of the ‘interesting’ or important legal question involved. The remit of arbitrators includes the making of errors; that is an inevitable part of any process of dispute resolution. Arbitrators may deal with “interesting” or important questions. How and what errors are to be corrected depends on the statute in question. Here, it must be shown that there is a strong prima facie case that the arbitrators were wrong on a question of law.
39. I note that s 43 of the Security of Payment Act is quite different from the relevant provision in the equivalent New South Wales Act, indeed, from that in every other jurisdiction, so decisions from such jurisdictions must be considered with care.
40. The bar for leave under s 43(4) of the Security of Payment Act is, however, very high.
Extension of time for seeking leave to appeal
41. The need for the Court’s leave where an application for leave to appeal has not been made within the time specified in the Court Procedures Rules is a recognition of the value, respected in litigation, that there be finality. This has been clearly recognised by high authority. See, for example, Giannerelli v Wraith (1988) 165 CLR 543 at 574; Burrell v The Queen (2008) 238 CLR 218 at 223; [15].
42. To extend time in these circumstances will, as Brennan CJ and McHugh J observed in Jackamarra v Krakouer (1998) 195 CLR 516 at 521; [7], “put at risk the substantive rights of the respondent”. This is particularly relevant in a case such as under the Security of Payment Act where speedy resolution of claims is a specific objective of the Act.
43. The matters which are said to be relevant were summarised by the Full Court of the Federal Court of Australia in Parker v The Queen [2002] FCAFC 133 at [6] which, after considering the well-known decisions of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and Jess v Scott (1986) 12 FCR 187, set them out as follows:
1. Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;
2. Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. However, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
44. See, also, R v Meyboom (2012) 256 FLR 450. There is no reason why these principles should not apply to this application.
Review by prerogative relief
45. Despite the provisions of s 43 of the Security of Payment Act , there is power in the Court to grant prerogative relief in respect of an adjudication decision within the Act by, for example, an order in the nature of certiorari. The reasons for this have been set out carefully by Master Mossop in Pines Living Pty Ltd v O’Brien at [26]-[29] and I respectfully agree with and gratefully adopt his Honour’s reasons.
46. There is no doubt that the existence of a construction contract between the applicant for an adjudication under the Security of Payment Act and the respondent to that application in a jurisdictional fact. This has been established in New South Wales in Brodyn Pty Ltd (t/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421 at 441; [52]-[53], where Hodgson JA, with whom Mason P and Giles JA agreed, held that the existence of a construction contract between the claimant and respondent was an essential condition for there to be in truth an adjudicator’s determination.
47. In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, the court held that the adjudication determination of an adjudicator under the NSW equivalent Act to the Security of Payment Act is amenable to orders in the nature of certiorari for jurisdictional error and that the pre-conditions to such a determination are jurisdictional facts that, despite the statutory limitation on review of the determination, may be reconsidered by the Court on application for prerogative review. See also Grocon Constructors Pty Ltd v ’Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172 at 194; [78].
48. In those circumstances, it would be available to this Court, notwithstanding the restrictions in s 43 of the Security of Payment Act , to review by an application for a prerogative order the finding of Mr Poiner that there was a construction contract between Mr Simons and Steel Contracts.
49. To that extent, I reject the submissions made on behalf of Mr Simons, through Mr P Woulfe, his counsel, that the question, being one of fact or mixed fact and law, is not justiciable.
50. In summary, I am satisfied that Steel Contracts could challenge by an order in the nature of certiorari the findings of Mr Poiner that there was a construction contract between Mr Simons and Steel Contracts.
Extension of time for seeking prerogative relief
51. The requirement for “special circumstances”, in this case before extending the time within which to seek an order in the nature of certiorari, is a ubiquitous requirement in the law and used in many contexts. O’Bryan J said in Allan Robinson Textiles Pty Ltd v Pappas [1983] 1 VR 345 at 347 that it “does not permit a single definition”. His Honour accepted that “special circumstances” are “wide, comprehensive and flexible words which do not permit an exhaustive definition”. His Honour adopted the approach of Smith J in Air Force Association (Victoria Division) v White Manufacturing Co (Aust) Pty Ltd [1951] VLR 85 that “one should look at the facts in a particular case and determine objectively whether they are special in relation to the case rather than in relation to the individual who is seeking to involve the court’s discretion”.
52. On one matter, however, relevant to any consideration here, Beach J in Denysenko v Dessau [1966] 2 VR 221 at 224 has made a pertinent comment as follows:
In my opinion the fact that the magistrate’s decision was demonstrably wrong cannot constitute a special circumstance within the meaning of the rule. I should add in this context that it was conceded by counsel for the secondnamed defendant that the magistrate had erred in the matter; ... If one was to hold that an erroneous decision by a magistrate constituted a special circumstance, then it would follow that in any such case an aggrieved party would be able to ignore the 60 day requirement safe in the knowledge that he could successfully apply for an extension of time when minded to do so. In my opinion that cannot have been the intention of the framers of the rule. ‘Special’ when used in this connection must mean something unusual, uncommon, exceptional or extraordinary. There is nothing unusual, uncommon, exceptional or extraordinary in a judicial officer, whether he or she be magistrate or judge, making an error of fact or law in a particular case. Indeed, one’s experience is to the contrary. The circumstances which must be special must relate to a plaintiff’s failure to commence a proceeding in time, not the decision sought to be reviewed.
53. His Honour’s comment has not found favour generally, though there is support for it. Thus, it was followed in Lovejoy v Myer Stores (No 2) [1999] VSC 271 at [23], and Almenara v Maclellan [2004] VSC 28 at [13].
54. Subsequently, however, disagreement about some of the approach in that case has become evident. Thus, in Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) at 178; [25], Vickery J pointed out
In Denysenko v Dessau Beach J held that in the context of r 56.02(3) the existence of even a demonstrable error on the part of the tribunal at first instance did not satisfy the test. ‘Special circumstances’ were said to be limited to those which related to the plaintiff’s failure to commence a proceeding within the time provided for, and not the decision sought to be reviewed. However, the trend of authority has since moved away from this position. (Footnote omitted)
55. In Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429, Hansen AJA, with whom Chernov and Nettle JJA agreed, said, by reference to the decision under review
His Honour’s concluding observations on the application of the phrase concerned the question whether error in the decision under review could constitute a special circumstance. His observations were obiter in view of his conclusion that the decision of the Board was not affected by error. Nevertheless, as his observation conflicts with the absolute statement of Beach J in Denysenko , I should say something about the issue. There were two reasons for Beach J’s conclusion. First, a holding that an erroneous decision constituted a special circumstance would result in an aggrieved party being able to ignore the 60 day requirement knowing that he or she could successfully apply for an extension of time when minded to do so. Secondly, error in decision making by a judicial officer, whether of fact or law, was not ‘special’. Neither of those factors can be denied, at least in the absence of other factors. It may however be considered that the generality of the phrase, for the evident purpose of comprehending an infinite and unforeseeable range of circumstances, would indicate that Beach J expressed the proposition in terms that were too absolute. In other words, in a particular case an approach that absolutely excluded error as a factor, no matter what the circumstances and nature of the error, may produce unintended injustice. I would leave the question open for consideration in an appropriate case.
56. Thus, as Cavanough J noted in Kocak v Wingfoot Australia Partners Pty Ltd and Ors [2011] VSC 285 at [7]
The weight of authority now seems to favour the view that [demonstrated legal error in the decision sought to be reviewed] might at least contribute to a finding of special circumstances.
57. The comments of Beach J, however, appropriately nuanced as they have been by such subsequent consideration remain, it seems to me, to be relevant. In Somerville Retail Services Pty Ltd v Vi [2008] VSC 196 at [44], Kyrou summed up the issues
The key issues for consideration identified in Ledner [ Ledner v Magistrates Court (2000) 117 A Crim R 396] are the reasons for delay, the prejudice to the other party and the prospects of success of the substantive application.
58. It seems to me that what the subsequent considerations of what Beach J said in Denysenko v Dessau does not alter the basic point that his Honour was making, namely that merely to show that the decision to be appealed was wrong is not enough to justify an extension of time, else there would be much reduced relevance in such provisions. Nevertheless, it is not an irrelevant factor, the strength of which will vary according to the circumstances.
59. Thus, if there are no, or very few, prospects of success, time should ordinarily not be extended. If the consequences of the error in the decision to be challenged are very serious, that will tell strongly in favour of an extension of time. That there are reasonable prospects will be relevant but not determinative.
60. In addition, in Carra v Hamilton (2001) 3 VR 114 at 119-20; [24], Balmford J confirmed her view that the inclusion in the description of “special circumstances” of the words “exceptional” and “extraordinary” could not be justified as they were “further from the ordinary” and thus set too high a bar. I respectfully agree, limiting “special” to meaning “unusual” or “uncommon”.
61. It is this more measured approach that I shall adopt.
The proceedings
62. The application for leave to apply for leave to appeal out of time was filed on 26 September 2013 and returnable on 10 October 2013. It was initially supported by one affidavit.
63. When the matter came on for hearing on 10 October 2013, Steel Contracts foreshadowed the need for further evidence. Mr Simons foreshadowed an application for security for costs. I gave directions for a timetable for the filing of the further evidence and the making of the application.
64. Ultimately, the application for security for costs was not pursued. The application was then heard on 3 December 2013, at the conclusion of which I reserved my decision.
The adjudication
65. As I have noted earlier (at [4]), Mr Simons addressed to “Mass Steel” a payment claim under the Security of Payment Act dated 23 April 2012 and which was served on Steel Contracts on 8 May 2012. The solicitor for Steel Contracts described it as a “purported ... claim” but there was no material to suggest to me it was not a payment claim under the Act and I accept it as such.
66. It annexed copies of eight invoices for the hire of the crane and four invoices for the hire of other equipment. It claimed a total of $52,274.40 and interest at the rate of 10.75% on the total of each invoice from the reference date.
67. On 8 May 2012, Steel Contracts, under its then name Mass Steel Pty Ltd, prepared in response its payment schedule under the Security of Payment Act on letterhead which displayed a distinctive logo with the words “Mass Steel” in the logo. Curiously, the actual document was said to be made under the equivalent New South Wales Act, but nothing probably turns on that.
68. It set out that the amount proposed to be paid was “Nil” and the reason was set out as
Mass Steel Pty Limited (abn 36 008 553 900) has never ordered or agreed to hire any equipment from the claimant. Furthermore Mass Steel Pty Limited was only registered in July 2011 which is after the aforementioned first invoice date. The claimant had an agreement with Mass (Australia) Pty Limited (abn 52 108 657 012) for the dry hire not Mass Steel Pty Limited.
69. As a result, Mr Simons applied under s 19 of the Security of Payment Act to Adjudicate Today Pty Limited for adjudication of the payment claim on 22 May 2012. That was accompanied by a Statement of Mr Simons as well as the payment claim and attachments. Adjudicate Today Pty Limited nominated Mr Poiner as adjudicator.
70. On 4 June 2012, Steel Contracts filed its adjudication response. It set out in some detail the history of the matter and the submissions it wished to be considered in response to the payment claim.
71. It raised a number of issues, not ultimately agitated before me, for example, suggesting that the contract with Mr Simons was void for uncertainty. It did not address how the contract was originally made or by whom on behalf of each party. It relied on the names on the invoices and the fact that Steel Contracts had only been known as Mass Steel Pty Limited from 17 July 2011, which was after the first invoice was made.
72. The adjudication response of Steel Contracts concluded as follows:
1. The respondent submits that the claimant has brought its application against the incorrect legal entity for the above reasons and that the claimant’s payment claim and adjudication application should be valued at nil or ($0).
2. The claimant should pay 100% of the adjudicators fees (if any); and
3. No interest is payable on the adjudicated amount.
73. It annexed the notice of resolution filed with the Australian Securities and Investments Commission when it had resolved the change of name of the company now known as Steel Contracts from Almar Steel Pty Ltd to Mass Steel Pty Ltd and showing the date of the meeting at which it was passed as 1 July 2011.
74. On 12 June 2012, Mr Poiner made his determination. He found for Mr Simons. He addressed the issue of the identity of the respondent, which had been challenged, as follows. He referred to a “Plant Risk Assessment” dated 3 October 2011, the letterhead of which, he said, established “Mass Steel” as the trading name for Steel Contracts. I did not appear to have a copy of that document in evidence before me. He also referred to the Payment Schedule which showed what I have noted above (at [61]).
75. He also referred to the changes of name of Steel Contracts and concluded that, while known by different names, the company itself was, contrary to the statement in the payment schedule, in existence prior to 1 July 2011, though, of course, under different names. That must be correct.
76. He then concluded
In the premises I determine there was an oral contract between the claimant and ‘Mass Steel” for the hire of the crane as from 23/2/11 to 3/11/11. ‘Mass Steel’, at least at 3/10/11, was the trading name for the respondent. At that time the entity was Mass Steel Pty Ltd (ABN 36 008 553 900) trading as ‘Mass Steel’. Prior to 12/7/11, this entity had the company name Almar Steel Pty Ltd and, sometime prior to that Kilo Pty Ltd. The respondent has not convinced me that ‘Mass Steel’ was not the same trading name attached to each of these earlier company names. It has not convinced me that the claimant did not contract with the respondent. As for the final four invoices these claims relate to matters that crystallised at the end of the hire period on 3/11/11 when, clearly, the respondent was as stated on the invoices.
77. As to the claim for interest, he concluded
The claimant contends that in the construction contract a rate of interest was agreed, namely 10.75% per annum. In the adjudication response the respondent did not contend that no rate of interest was agreed or that the rate of interest agreed was less than 10.75% per annum. Therefore, I find that that is the rate payable on any unpaid portion of the adjudicated amount.
78. As a result, he upheld the claim by Mr Simons. His adjudication determination was published to the parties on 5 July 2012.
79. On 4 September 2012, Mr Poiner approached Steel Contracts requesting submissions on an alteration to the determination. This was said to be because Mr Simons sought the issue of an adjudication certificate under s 26 of the Security of Payment Act . Such a certificate may, under s 27 of the Act, be filed as a judgment for debt. The application for such a certificate is a clear indication that the claimant is considering, proposing or about to start enforcement of the payment that the adjudicator has found is due.
80. The purpose of the request for the submission was that Mr Simons wanted the name of the party liable to pay the adjudicated amount to be charged to “Mass Steel Pty Ltd (now trading as Steel Contracts Pty Ltd)” with a copy of the relevant ASIC document attached. That re-inforces the inference I suggest above (at [79]) could be drawn because the change of name would facilitate recovery proceedings for the debt.
81. It was suggested that the changes to the determination could be made under s 24(5) of the Security of Payment Act which provides
(5) The adjudicator may, on his or her own initiative or on the application of the claimant or the respondent, correct a decision for –
(a) a clerical mistake or defect of form; or
(b) a material miscalculation of figures or a material mistake in the description of any person, thing or matter mentioned in the decision.
82. Whether such an amendment would be encompassed within this provision is not a matter which I have to decide.
83. The lawyers for Steel Contracts responded as follows:
It is our client’s submission that the adjudicator only has power to amend slips, not change the parties to the adjudication process as that would be beyond his jurisdictional powers provided by the Legislation.
Further the position the claimant finds itself in is precisely the issue which the respondent raised in its payment schedule and adjudication response, which the claimant seeks to now adopt, amounting to a denial of natural justice.
Quite simply the claimant has proceeded against the incorrect entity and has waived any right to seek the amendments it seeks and is estopped.
84. It seems to me that the submission that an adjudicator only has power to amend slips may be correct; the equivalent provision for this Court and the Magistrates Court is r 6906 of the Court Procedures Rules . It is commonly known as the “slip rule”. For a discussion of the “slip rule”, see Bailey v Marinoff (1971) 125 CLR 529. The name was not, however, an error of the adjudicator. On the other hand, the submission by the lawyers for Steel Contracts is quite wrong to suggest that the proposal from Mr Simons was to make a change of party. The party was the same, only the name of the party was being changed.
85. It also seems to me that it is quite incorrect to suggest there has been a denial of natural justice; that is exactly what Mr Poiner was doing – giving Steel Contracts a chance to be heard.
86. I do not understand the third paragraph of the reply from Steel Contracts or what is intended to be submitted.
87. In any event, Mr Poiner amended the name of the respondent to
Steel Contracts Pty Ltd (ABN 36 008 553 900) formerly trading as Mass Steel Pty Ltd (ABN 36 008 553 900).
88. This amended determination was issued on 11 September 2012. It does not seem to me that this amendment deferred the commencement of the period from which an appeal or other challenge to the determination could be instituted. The determination was made on 12 June 2012 and released to the parties on 5 July 2012. This latter date seems to me to be the date from which any time limit on any challenge to the decision must commence.
The Evidence
89. The lawyer for Steel Contracts made the initial affidavit (the First Affidavit) in support of its application. It principally consisted of the annexing of documents which showed the history of the matter. I shall refer to them where appropriate, rather than merely summarising here what they showed.
90. The First Affidavit did not contain any evidence which was directed to explaining what Steel Contracts or its lawyers had done since 5 July 2012.
91. It did annex documents which showed that Mr Simons had commenced enforcement proceedings in the Magistrates Court, presumably consequent upon the filing of the adjudication certificate, which he had sought. The first such document was a Notice about Court orders and enforcement options (Form 2.49) dated 14 September 2012. The most recent such document was an order under rr 2100 and 2101 for a director of Steel Contracts to attend an enforcement hearing on 4 September 2013. It may be that it was service of this latter document which stirred the company into making this application. There was no evidence as to what, if anything, occurred at the enforcement hearing, including whether it was adjourned pending the application before me.
92. A number of the documents included as annexures were purchase orders in the name of “Mass Steel” directed to Ricky Simons Family Trust between 6 April 2011 and 4 November 2011 requiring services to be delivered to Mass (Australia). Presumably “Mass Steel” was a business name but no further information was provided about that. In particular, there was no clear evidence to suggest that it was not a business name used by the company now known as Steel Contracts.
93. Documents attached to the affidavit also showed that Steel Contracts was originally known as Kilo Pty Ltd and had been registered as a company on 17 June 1980. It had changed its name as follows:
• on 25 June 1980 to Almar Steel Pty Limited
• on 12 July 2011 to Mass Steel Pty Ltd
• on 14 May 2012 to Steel Contracts Pty Ltd
94. Certain bank statements of Mass (Australia) were also annexed. They showed payments to “Mass Steel” from that company’s account between 20 January 2010 and 11 November 2011 (from before Steel Contracts had been named Mass Steel Pty Ltd).
95. Further affidavits were also filed in accordance with the directions I gave.
96. A second affidavit by the lawyer for Steel Contracts (the Second Affidavit) annexed correspondence between him and Adjudicate Today for Mr Poiner through which Mr Poiner advised that he was prepared to file a submitting appearance and accept any decision of the court on an appeal save as to costs. I do not need to consider this any further.
97. Rohan Arnold, director of Steel Contracts made an affidavit on 29 November 2013 (the Third Affidavit). He deposed that he had been a director of that company since 24 February 2011, the day after Mr Simons delivered the crane. He had replaced his father who had been a director up to that date.
98. Mr Arnold deposed that Steel Contracts (then known as Almar Steel Pty Ltd) was a holding company for his parents’ investments and remained inactive after his parents divorced. He appears to have revived the company to develop a business venture of importing pre-fabricated steel from China and Vietnam. He had been a director of Mass (Australia) since its registration. On 13 June 2012, it was placed into liquidation.
99. Mr Arnold expressed the belief that, at all times, Mr Simons had orally contracted with Mass (Australia) which, he said, he did in or about January 2010, to provide rigging and dogman training for its employees. He said that Mr Simons lost his trainer’s licence and then orally contracted with Mass (Australia) to hire the crane to which I have already referred (at [1]-[2] above). He did not state the source or grounds of his belief.
100. He then referred to various documents showing payments to Mr Simons, cheque butts and other documents and which were documents of Mass (Australia). I accept that payments were made by Mass (Australia) to Ricky Simons Family Trust including for hire of the crane. He also referred to purchase orders which he said were issued in the name of Mass (Australia). Those purchase orders was actually in the name of “Mass Steel”. They were directed to the Ricky Simons Family Trust and required delivery of the services to Mass (Australia).
101. The purchase orders made no reference to a company name but only “Mass Steel”. I was informed that “Mass Steel” was not a registered business name. It clearly then was an unregistered business name. The purchase orders did cite an ACN 108 657 012. This is the ACN of Mass (Australia).
102. As can be seen from this, there was a significant lack of clarity in the use of names. The proceedings were commenced by Steel Contracts against Ricky William Simons trading as Little Lifter, yet invoices were sent from Little Lifter and signed by Mr Simons, and the adjudication application was made by Ricky William Simons trading as Little Lifter, yet payments were made to Ricky Simons Family Trust and purchase orders made no mention of Little Lifter. The purchase orders were in the name of Mass Steel with no mention (except as a delivery destination) of Mass (Australia) and Mass Steel appears from the Bank Statement to be an entity to which Mass (Australia) paid funds.
103. The Third Affidavit described a number of transactions. In it, Mr Arnold asserted that Mass (Australia) had issued the purchase orders. He could not say, however, that the purchase orders had actually been sent to Mr Simons.
104. Annexed to his Third Affidavit were bank statements which he said showed that between 1 August 2012 and 10 October 2013, Steel Contracts “was not in a financial position to commence these proceedings to set aside the adjudicators [sic] determination”. That does not seem to me to be quite accurate. The balance of the account as at 1 August 2012 was $4859.56 credit. It was reduced to a debit amount of $996.84 on 3 August 2012 but by 7 August 2012 had, by deposit, a credit amount of $58,642.41.
105. Thereafter the balance of the account fluctuated over time, as one would expect. There were occasions when there were debit balances but, apart from one period of fifteen days in October 2012, for not more than five days. The credit balances also varied but at one point reached just under $200,000.00.
106. I am not satisfied that Steel Contracts did not have the funds to take these proceedings until 26 September 2013.
107. Mr Arnold also annexed to the Third Affidavit what were said to be photocopies of pages from his passport which were said to “record the dates that [he has] been out of Australia on business since the adjudicator purported determination was issued on 11 September 2012.” Unfortunately, the copies of the documents on file were completely illegible.
108. Steel Contracts’ lawyer made a further affidavit (the Fourth Affidavit) to which he annexed an email message sent on 31 July 2012 from David Campbell, elsewhere described as General Manager Mass Group, to David Scutt, who had been assisting Mr Simons with the proceedings under the Security of Payment Act . I shall refer to this email later (at [156]).
109. The Fourth Affidavit also annexed photocopies of pages from Mr Arnold’s passport. They were much more legible than those annexed to the Third Affidavit. It was, however, not easy to see for exactly what periods Mr Arnold was out of Australia. Again, I shall refer to this material later (at [164]).
110. The Fourth Affidavit also annexed a further copy of the bank statement to which I have referred above (at [94]).
Submissions
111. Steel Contracts submitted that Mr Poiner fell into jurisdictional error in that there was no construction contract between it and Mr Simons.
112. It further submitted that there were special circumstances which justified an extension of time to bring proceedings for an order in the nature of certiorari because
(a) Mr Simons delayed in enforcing the determination as a judgment;
(b) Mr Arnold was overseas for extended periods; and
(c) in the circumstances, there was jurisdictional error.
113. Mr Simons submitted that Steel Contracts had failed to show that an extension of time should be granted having regard especially to the nature of the litigation, namely under the Security of Payment Act , which is designed to resolve disputes quickly and result in timely payment of progress payments. There was, it was submitted, no satisfactory explanation for delay. There would be prejudice to Mr Simons were the application to be granted.
114. Mr Woulfe also submitted that the existence or otherwise of a construction contract was a question of fact or, at least, a question of mixed and fact and law and, in reliance of decisions such as Comcare v Etheridge (2006) 149 FCR 522 at 527; [13]-[16], submitted that such do not qualify as a question of law. See also Faull v Commissioner for Social Housing (2013) 277 FLR 61 at 77-9; [90]. That may not be now accepted as strictly correct in all circumstances. See Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at 48-9; [55]. I have, however, rejected that submission earlier (at [49]).
Consideration – prospects of success
115. The principal ground of appeal, introduced by the amendment to the Notice of Appeal, was that Mr Poiner had made a jurisdictional error, namely that he had found that there was a construction contract between the parties, when, it was submitted, there was not such a contract.
116. This was also the ground on which the claim for an order in the nature of certiorari was to be based.
117. There was, however, also pleaded a breach of the requirements to provide natural justice, though there was little in the oral arguments as to this. Such a breach may support both an appeal on a question of law (though it has been held not to be a question of low alone: Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2013] NSWLEC 258 at [32]) and the application for prerogative relief, though I have no confidence about that, but I do not need to deal with it because of my findings on the issue.
118. I shall, accordingly, deal with that claim briefly first, though there was little by way of submission about it.
119. The evidence shows that Steel Contracts was given an opportunity to make submissions to the adjudicator prior to the making of the determination and to make submissions prior to the amendment of the determination. Indeed, it did so. That those submissions did not prevail is, of course, not to the point. Neither the Security of Payment Act nor the common law required in these circumstances any more than that Steel Contracts have a reasonable opportunity for its evidence and submissions to be placed before the adjudicator. Natural justice requires a proper opportunity to be given to place material before a decision-maker; it does not require that a party has to take advantage of that opportunity necessarily: Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118 at 146; [165].
120. In any event, Steel Contracts had a full opportunity to be heard, did actually make submissions and an inspection of the adjudication determination shows that they were taken into account. There is no substance in this ground.
121. Somewhat more complex is the question of the claimed jurisdictional error and the question of whether there was a construction contract between Mr Simons and Steel Contracts (though, of course, under an earlier name).
The evidence relevant to the prospects of success – who contracted with Mr Simons?
122. Mr Simons submitted his payment claim to “Mass Steel”. Attached to it were invoices for the hire of the Kobelco road crane, all addressed to “Mass Steel”. The invoices for the other equipment were addressed to “Mass Steel Pty Ltd”.
123. In his statement in support of the payment claim, he referred to directing all his invoices to “Mass Steel” and also that the crane assessment by Crane Safe Australia sent the invoices of its assessor, Asha Plant Repairs, to “Mass Steel”.
124. He stated that no-one had questioned the addressing of his invoices. He also referred to an exchange of emails between his agent, David Scutt, and David Campbell with whom he had been dealing in employment and crane hire issues, which referred to an agreement between Mr Simons and “Mass”; Mr Campbell was the “General Manager Mass Group”.
125. He described the arrangement where “Mass Steel” approached him to provide onsite training and that, subsequently, his crane was hired and delivered to the site on 23 February 2011. He said that he invoiced “Mass Steel” for six weeks to 29 March 2011 and Mr Campbell delivered the cheque in payment of that hire. The same occurred for the next five weeks.
126. Mr Simons said that the hire for May and June 2011 was not paid, though he continued to work and the crane continued to be used. In about October 2011, Mr Campbell said to him, when he complained of non-payment, “Yeah mate, I know, we will have to work something out”.
127. He continued to approach Mr Campbell but without result. It was then that he made the payment claim which led, in due course, to Mr Poiner’s adjudication determination.
128. Included in annexures to the First Affidavit were a large body of relevant documents, including the various purchase orders to which I have referred above (at [92]). I have noted the particular logo with the name “Mass Steel”. The purchase orders also gave a website address www.massgroup.com.au and an ACN 108 657 012 which was that of Mass (Australia). They were directed to “Ricky Simons Family Trust” and required material to be delivered to “Mass (Australia) Pty Ltd”.
129. I have also referred to the bank statements for Mass (Australia) showing payments made in respect of those purchase orders from that account, and showing also payments to “Mass Steel”.
130. The remittance advices for the payment were also annexed; they were on the letterhead of Mass (Australia) but with no reference to “Mass Steel”, no logo and no ACN, though later remittance advices did show the logo and an ABN, which was the ABN of Mass (Australia).
131. Email correspondence from Mr Arnold described him as “Managing Director Mass Steel”. The Complete Structural Company [telephone number] www.massgroup.com.au”.
132. In addition, a variety of documents were produced relating to various contracts with various parties. I was not taken specifically to these documents.
133. As I have noted earlier (at [67]), the particular logo used on the purchase orders also appeared on the only non-email document which I saw that was identified expressly as coming from Steel Contracts itself, namely the payment schedule.
134. Mr Campbell gave no evidence, nor did anyone who had any conversation with Mr Simons about the hire of the crane. I was not told anything about the obvious business name (if unregistered) of “Mass Steel”.
Conclusion – prospects of success
135. Thus, there was very little evidence and no direct evidence adduced by either party of the precise genesis of the contract of hire of Mr Simons’ crane. The version of events on behalf of Mr Simons was contained in his statement made in support of the payment claim attached to the ACT adjudication application form annexed to the First Affidavit. I assume that, under s 60 of the Evidence Act 2011 (ACT), I can accept that statement as evidence of the truth of its contents.
136. Although described as the man with whom Mr Simons dealt on crane hire issues, Mr Campbell, the General Manager, gave no evidence. I cannot necessarily assume that he was the person who made the contract with Mr Simons, though it seems likely. The absence of evidence from Mr Campbell does not assist Steel Contracts.
137. Certainly, Mr Arnold was not the Managing Director of Steel Contracts at the time, though he was a director of Mass (Australia). Mr Arnold gave no evidence of who spoke to Mr Simons and by whom such a person was employed, though, as the director of Mass (Australia), which he said was the other contracting party, it may be thought he should have been able to do. His evidence was “I am aware that this was an oral agreement between Ricky Simons and one of the Mass (Australia) Pty Ltd employees”. He was not cross-examined on this rather vague statement. He gave no source for his awareness.
138. On the basis of the documentary evidence, it seems to me that Mass (Australia) considered that it was the contracting party with Mr Simons. In the absence of complete evidence about the creation of the contract, that is not, of course, determinative of the identity of the actual contracting party with Mr Simons.
139. A difficulty is that the term “Mass Steel” was not a registered business name. Its use by Mass (Australia) would, until 28 May 2012, have been an offence under s 5 of the Business Names Act 1963 (ACT).
140. Given that it was not a registered business name and given that, from 12 July 2011, there was a company known as Mass Steel Pty Ltd (ie Steel Contracts under its earlier name) and given the use of the logo and term “Mass Steel” by that company (though the evidence was only on 8 May 2012 by which time Mass (Australia) was in liquidation), it is not clear whether the term was used as a generic description for the Mass Group or other entities in the group.
141. The evidence was simply lacking as to the precise use of the logo and the business name “Mass Steel”, though I accept that both were used by Mass (Australia).
142. Mr Poiner found that it was used by the company now known as Steel Contracts. That is correct. The period during which it used it is not so clear. He found that it was used “at least at 3/10/11”. The evidence before me does not confirm that, but it does not show it to be false. Mr Poiner went on to hold that he had not been satisfied that “Mass Steel” did not attach to the company when known by its earlier names. Again, while it is not clear on what Mr Poiner based his findings, the evidence before me does not show that that he was clearly wrong.
143. In support of the contention that Steel Contracts could not say with certainty what use was made of what names, Mr Woulfe made reference without objection to what Master Harper said in Mass (Australia) Pty Ltd v R & B Crane & Rigging Pty Ltd [2008] ACTSC 23 at [6] as follows:
On the same date Mr Rohan Arnold swore an affidavit supporting the application in the present action. He identified himself as a director of Mass (Australia) Pty Limited having authority to make the affidavit. He made a number of factual assertions, in which he referred to Mass Precast five times, Mass Group once, and Mass once. He made no other reference to Mass (Australia) Pty Limited. A reader of the affidavit with no background knowledge would find it confusing and difficult to understand but would not assume, or realise, that more than one Mass legal entity was involved.
144. While there are significant problems in drawing inferences in one case from facts proved in another case and, while the findings of the learned Master do not bind me, these findings do re-inforce the unease which I have felt about whether the use of names by Steel Contracts is subject to such rigour and care that the documentary evidence before me must lead to only one conclusion.
145. I find that it is likely, though not certain or beyond doubt, that the contract with which Mr Simons entered into was with Mass (Australia).
146. Had Steel Contracts applied within time, its claim could have been heard by this Court, but I am not satisfied that there has necessarily been a miscarriage of justice, even though there is a real likelihood that Mr Poiner’s findings may well have been disturbed on this issue.
147. So far as the appeal is concerned, however, I do not consider that any of the grounds pleaded are such as to meet the stringent tests provided for in s 43(4) of the Security of Payment Act .
148. I have some doubts about whether the question of the construction contract was made between Mr Simons and Steel Contracts is a question of law, but the fact, if it be so, that the contract was not between Mr Simons and Steel Contracts is not manifest on the face of the record. It requires additional factual material before it can be proved.
149. Further, while what I have found may amount to strong evidence that there was an error as to this issue, the determination of that question would not, in my view, add at all or be likely to add at all, to the certainty of the law and certainly not substantially.
150. Accordingly, it does not seem to me that there are prospects of success in the appeal. There are, however, prospects of success in the proposed application for prerogative relief.
Consideration – extension of time
151. Given that I have found that there are no prospects of the appeal being successful, I do not need to consider whether there should be an extension of time within which to file the application for leave to appeal.
152. So far as an application for leave to extent the time in which to make an application for an order in the nature of certiorari is concerned, Steel Contracts must satisfy me that there are special circumstances that justify me doing so.
153. Three matters were relied upon by Steel Contracts to satisfy that test, as I have noted above (at [112]). I do not consider that either singly or in combination they constitute special circumstances. I shall deal with each in turn.
(a) The delay by Mr Simons in enforcing the determination
154. The determination was published on 5 July 2012. It was amended, because an application was made by Mr Simons for an adjudication certificate with the new name of Steel Contracts.
155. At the time of the amendment, therefore, Steel Contracts must have known that Mr Simons was, at the very least, preparing to enforce the determination. It took no action to challenge the determination.
156. Steel Contracts relied on the fact that, on 31 July 2012, Mr Campbell wrote to Mr Scutt by email. He said in that email:
I will be instructing our Solicitor tomorrow to prepare documents to lodge with the Supreme Court to have the adjudication set aside. The reasons behind this are:
1. The entity you have taken action against [Mass Steel Pty Limited ACN 008 553 900) was only incorporated in July 2011.
2. The invoices for Little Lifter date back to 2010 and have always been paid from Mass (Australia) Pty Limited ACN 108 657 012 trading as Mass Steel.
3. All cheques and direct debits have been paid from Mass (Australia) Pty Limited ACN 108 657 012 trading as Mass Steel.
4. All Projects the crane worked on were contracted to Mass (Australia) Pty Limited ACN 108 657 012 trading as Mass Steel.
5. All Projects Ricky Simons worked personally and invoiced under little lifter were contracted to Mass (Australia) Pty Limited ACN 108 657 012 trading as Mass Steel.
That said I will afford you 48 hours to withdraw your action or I will lodge the appropriate paperwork with the Supreme Court and ask for security of costs (means you will have to put up an amount of money to show that if we win you can pay our costs. The amount to be requested will be $50,000.00). I can assure that all evidence will show that Mass (Australia) Pty Limited ACN 108 657 012 trading as Mass Steel was the only company that had dealings with Ricky. The adjudicator was foolish to award you the claim and will inevitably cost you A LOT of money because of it.
157. I have quoted almost all of the contents of this email because it seems to me to be very relevant to this issue.
158. There was no evidence of any reply to it. That, it was submitted, lulled Steel Contracts into believing that nothing was going to be done.
159. It was submitted that the next thing that happened was the enforcement action in the ACT Magistrates Court. I had the evidence of that to which I have referred above (at [79]). There was a copy of the Notice of Enforcement Order under r 2015 of the Court Procedures Rules dated 14 September 2012 sent to Steel Contracts and also an Order under r 2101 requiring Mr Arnold, on behalf of Steel Contracts to attend an Enforcement Hearing, the order being dated 25 July 2013.
160. In addition, as noted above (at [79]), Mr Poiner sought, on 4 September 2012, further submissions from Steel Contracts about an amendment to his determination for the purposes of issuing an adjudication certificate which, under s 27 of the Security of Payment Act , is a preliminary to enforcement action. He amended the determination on 11 September 2011 and a copy was given to Steel Contracts.
161. Thus, there were three occasions after the email of 31 July 2012 when, in 2012, Steel Contracts were on notice that Mr Simons was not sitting on his rights – 4 September, 11 September and 14 September 2012. Despite this and what might be called the “robust” tone of Mr Campbell’s email, no action was then taken by Steel Contracts at all.
162. Certainly, Mr Simons did not proceed with great diligence. Although he appears to have registered the certificate with the Magistrates Court shortly after he received it with amendments in September 2012, it was not until 24 July 2013 that he sought the Order to Attend Enforcement Hearing, the first substantive step towards enforcement.
163. That delay, however, cannot of itself constitute a special circumstance. It cannot be said that Mr Simons ever evinced an intention not to pursue his rights. Steel Contracts cannot legitimately claim that it was prejudiced into believing that. Thus, I cannot find that the delay by Mr Simons caused or contributed to the failure of Steel Contracts to take these proceedings.
(b) The absence of Mr Arnold overseas
164. As noted above (at [107] and [109]), copies of pages of Mr Arnold’s passport were annexed to the Third and Fourth Affidavits were not easy to interpret. I was not favoured with a table of Mr Arnold’s absences nor were they set out in the Chronology. That would have been helpful. I am prepared to accept, however, that he was in the Philippines between 9 and 12 June 2011, and also left there (though I could not identify when he arrived on that occasion) on 19 August 2012 and later was there from 4 September 2012 until 9 October 2012. He was in Vietnam from 18 to 22 October 2011. I also can accept that he was in China for a number of periods in October 2012, February, March, April and May 2013.
165. The exact dates and the length of stay is not easy to determine and I was not assisted in assessing this.
166. Nevertheless, I am satisfied that company business did require him to be absent for significant periods in 2011, 2012 and 2013.
167. That, however, is only a part of the story. There did appear to be significant periods when, based on his passport, he was in Australia. It was not clear to me why he could not have attended to this matter in these periods between such overseas visits. Nor is it clear to me why his General Manager, Mr Campbell, who had been dealing with the matter and who, from his email, had a very good appreciation of the issues, could not have dealt with much of the work of attending to this matter in the absences of Mr Arnold. Mr Campbell did not give evidence. I can infer that his evidence would not have assisted in answering such questions: Jones v Dunkel (1959) 101 CLR 298.
168. I do not consider that Mr Arnold’s absences from Australia explain to any reasonable degree the delay and certainly do not constitute a special circumstance.
(c) That there was a jurisdictional error
169. I have found that there may have been a jurisdictional error in the identification of a wrong party so that there may not have been a construction contract between Steel Contracts and Mr Simons, though I cannot find that on the evidence before me with clear certainty.
170. That, in part for the reasons set out by Beach J in Denysenko v Dessau as modified by subsequent decisions, does not seem to me to be sufficient of itself to constitute a special circumstance.
(d) Combined effect of these factors
171. While I should consider whether these factors together amount to a special circumstance, the determination of that is not a matter of adding up the factors and seeing how they fall out.
172. As McHugh J made clear in Gallo v Dawson (1990) 93 ALR 479 at 481, even if an appellant had “real prospects” of success in an appeal, the absence of a satisfactory explanation for the delay in pursuing its rights is sufficient to refuse an extension of time within which to seek review.
173. I have carefully considered the matters put to me and am not satisfied that the matters on which Steel Contracts rely do together constitute special circumstances. It seems to me that, while Steel Contracts may well have good prospects of success in a prerogative review, it has stood by and allowed its rights to lapse, despite being aware of the steps being taken by Mr Simons and with no satisfactory explanation as to why the company, with a general manager clearly knowledgeable about the issues and a managing director, despite absence overseas, with time, resources and access to the steps and the legal assistance needed to protect its rights, took no action to do so.
Disposition
174. In my view Steel Contracts has not made out a case for extending time either for an application for seeking leave to appeal nor for applying for an order in the nature of certiorari.
175. I will, accordingly, make appropriate orders.
I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 19 June 2014
Counsel for the Applicant: Mr J Hyde
Solicitor for the Applicant: Griffin Legal
Counsel for the Respondent: Mr P Woulfe
Solicitor for the Respondent: Rod J Barnett & Associates
Date of hearing: 3 December 2013
Date of judgment: 19 June 2014