[2014] WASC 331
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION : WQUBE PORT OF DAMPIER -v- PHILIP LOOTS
OF KAHLIA NOMINEES LTD [2014] WASC 331
CORAM : CHANEY J
HEARD : 24 JULY 2014 & ON THE PAPERS
DELIVERED : 17 SEPTEMBER 2014
FILE NO/S : CIV 1645 of 2014
BETWEEN : WQUBE PORT OF DAMPIER
Applicant
AND
PHILIP LOOTS OF KAHLIA NOMINEES LTD
Respondent
MARINE & CIVIL PTY LTD
Other Party
FILE NO/S : CIV 1663 of 2014
BETWEEN : WQUBE PORT OF DAMPIER PTY LTD
Applicant
AND
GRAHAM ANSTEE-BROOK
Respondent
MARINE & CIVIL PTY LTD
Other Party
Catchwords:
Prerogative relief - Judicial review - Adjudication under Construction Contracts Act 2004 (WA) - Nature of adjudicator's power - Inferior court or administrative tribunal - Bona fide attempt to exercise jurisdiction - Jurisdictional facts - Narrow or broad sense - Whether misapprehension or disregard of nature and limits of functions
Legislation:
Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Act 2002 (Vic)
Construction Contracts Act 2004 (WA)
Construction Contracts Regulations 2004 (WA)
Result:
Applications dismissed
Category: B
Representation:
CIV 1645 of 2014
Counsel:
Applicant : Mr M Rudge SC & Mr S J Davis
Respondent : No appearance
Other Party : Mr S A Vandongen SC & Mr T Porter
Solicitors:
Applicant : K & L Gates
Respondent : No appearance
Other Party : Avon Legal
CIV 1663 of 2014
Counsel:
Applicant : Mr M Rudge SC & Mr S J Davis
Respondent : No appearance
Other Party : Mr S A Vandongen SC & Mr T Porter
Solicitors:
Applicant : K & L Gates
Respondent : No appearance
Other Party : Avon Legal
Cases referred to in judgment:
Alliance Contracting Pty Ltd v James [2014] WASC 212
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394;
(2004) 61 NSWLR 421
Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190;
(2010) 78 NSWLR 393
Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Doric Building Pty Ltd v Marine & Civil Construction Co Pty Ltd [2006] WASC 12
Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture [2009] VSCA 426; (2009) 26 VR 172
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Laing O'Rourke Australia Construction Pty Ltd v H & M Engineering & Construction Pty Ltd [2010] NSWSC 818
Marine & Civil Bauer Joint Venture and Leighton Kumagai Joint Venture [2005] WASAT 269
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Perform (NSW) Pty Ltd v Mev-Aust Pty Ltd [2009] NSWCA 157
Perrinepod v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2] [2013] WASC 161
Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [No 2] [2013] WASC 59
Re Graham Anstee-Brook; Ex parte Mount Gibson Mining [2011] WASC 172
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Red Ink Homes Pty Ltd v Court [2014] WASC 52
Roberts v Hopwood [1925] AC 578
The Returned & Services League of Australia (Victoria Branch) Inc v Liquor
Licensing Commission [1999] VSCA 37; [1999] 2 VR 203
Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80
Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 40
Table of Contents
The nature of the power exercised by an adjudicator ............................................................... 8
Ground 1 - Error in relation to the superintendent's representative - CIV 1045 of 2014 ....... 14
Ground 1 - Error in relation to Superintendent's Representative - CIV 1663 of 2014 ........... 21
Ground 2 - Bona fide attempt to exercise jurisdiction - CIV 1645 of 2014 ........................... 22
Ground 2 - Bona fide attempt to exercise jurisdiction - CIV 1663 of 2014 ........................... 24
Ground 3 - Compliance with s 26 of the CC Act ................................................................... 25
Broad or narrow jurisdictional fact ....................................................................................... 29
Was IAMA's ABN or ACN known to Marine & Civil? ...................................................... 32
Preparation in accordance with s 26 ..................................................................................... 34
Ground 4 - invalidity of 14 March 2014 progress certificate ................................................. 35
Conclusion .............................................................................................................................. 40
1
CHANEY J
: In each of these applications, WQube Port of Dampier Pty Ltd (WQube) applies for judicial review of a determination made by an adjudicator pursuant to s 31 of the
Construction Contracts Act 2004
(WA) (CC Act). The adjudication the subject of CIV 1645 of 2014 (the Loots determination) was made by Mr Philip Loots. The adjudication the subject of CIV 1663 of 2014 (the Anstee-Brook determination) was made by Mr Graham Anstee-Brook. Both adjudicators are said to have made the same errors and the same issues arise in both proceedings, which led to them to being dealt with together. The other party to the construction contracts the subject of the adjudications, Marine & Civil Pty Ltd (Marine & Civil), opposed WQube's applications.
2 There are essentially four grounds on which the claim for judicial review is based.
3 The first ground (incorporated in pars 1 and 2 of the grounds of each application) is that each of the adjudicators made an error of law in finding that Mr Heath Mallen was appointed as the superintendent's representative under the respective contracts, which error caused the adjudicator to ask the wrong question in dealing with the determination.
4 The second ground (incorporated in pars 3, 4 and 5 of the grounds of each application) is that the adjudicators, in each case, failed to make a bona fide attempt to exercise jurisdiction.
5 The third ground (incorporated in pars 6 and 7 of the grounds of each application) is that each of the adjudicators made an error of law going to their jurisdiction, by failing to dismiss the adjudication applications in circumstances where they should have been dismissed under s 31(2)(a) of the CC Act.
6 The fourth ground (incorporated in pars 5A and 5B of the grounds in CIV 1645 of 2014) relates solely to the Loots determination. It is that Mr Loots made an error of law in determining that a progress certificate issued on 14 March 2014 was 'invalid' for the purposes of cl 37.2 of the contract, by reason of a misapprehension of his functions or powers, and also by failing to accord procedural fairness to the parties in relation to his intention to make a determination on an alternative basis that the progress certificate was invalid.
7 The fourth ground mentioned above was introduced into the proceedings by leave which I granted at the hearing on 24 July 2014 when the matter came on for hearing. It had been the subject of a minute of proposed re-amended application for judicial review which was filed, along with written submissions in support of the new ground, on the day before the hearing. On the day of the hearing, WQube also provided written submissions in reply on ground 3. In view of the late provision of all of those documents, the parties agreed that they would not deal with those matters in detail in oral submissions, but that Marine & Civil should have leave to file written submissions in response to WQube's submissions on ground 4, and also to file submissions to deal with the written submissions of WQube in reply on ground 3. Those written submissions were subsequently provided. WQube then sought leave to file yet further submissions in reply. Objection was taken by Marine & Civil to any further submissions by WQube being received on the basis that no leave had been granted at the conclusion of the hearing. In light of that objection, I declined to have regard to the further submissions lodged by WQube. I am mindful that, in relation to ground 3, WQube filed its original submissions in support of the ground and, then, submissions in reply which raised additional arguments. It consented to Marine & Civil filing a further written submission to deal with the new matters raised by it late, but I do not consider that it was appropriate for WQube to have yet a further opportunity to make submissions on that ground. In relation to the new ground, Marine & Civil did not seek leave at the hearing to file any submissions in reply. WQube added the new grounds very late in the proceeding, such that the need for Marine & Civil to file submissions in response after the hearing, something which is generally undesirable, was a result of its late addition of the grounds. In those circumstances, I determined that I should not have regard to the submissions filed without leave on ground 4.
8 It was not in issue between the parties that a determination made by an adjudicator under s 31(2)(b) of the CC Act is amenable to judicial review for jurisdictional error - see Perrinepod v Georgiou Building Pty Ltd .
9 The first and second grounds are based on what are said to be errors of law. That assertion gives rise to what WQube describes as a preliminary question, being whether the adjudicator appointed under the CC Act is a tribunal exercising statutory power or a body which is 'akin to an inferior court'. I turn first to that question.
The nature of the power exercised by an adjudicator
10 It was accepted by WQube that the errors alleged to have been made by each of the adjudicators in grounds one and two are only capable of providing a basis for interference by the Court if an adjudication under the CC Act is treated, for the purposes of administrative review, as a tribunal rather than an inferior court.
11 The importance of that distinction was explained by the High Court in Craig v The State of South Australia . The court said:
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
…
Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular 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. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.
12 In relation to an administrative tribunal, the Court explained:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
13 In Re Carey; Ex Parte Exclude Holdings Pty Ltd , Martin CJ, with whom Wheeler JA agreed, referred to the decision of Phillips JA in The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission , in support of the observation that classification of bodies into either inferior courts or administrative tribunals is only necessary in order to infer the extent of the body's jurisdiction to determine questions of law, and is thus unnecessary if the extent of the body's jurisdiction to determine questions of law appears from the express terms of the legislation creating it.
14 An analysis of that character was carried out by Beech J in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd , who concluded that the test applicable to an application for certiorari in relation to an adjudication under the CC Act is that applicable to inferior courts. In Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd , Corboy J reached the same conclusion. In an obiter observation in Perrinepod Pty Ltd v Georgiou Building Pty Ltd , Murphy JA agreed with Beech J and Corboy J that the scheme and purpose of the CC Act is more consistent with an adjudicator appointed to make a determination under s 31(2)(b) being akin to an inferior court rather than an administrative tribunal for the purpose of an application for certiorari. Martin CJ agreed with Murphy JA.
15 In Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd , Pritchard J, noting Murphy JA's observation in Perrinepod , also agreed with Beech J. The same conclusion was reached by EM Heenan J in Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2] , Le Miere J in Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [No 2] , and by Beech J in Alliance Contracting Pty Ltd v James , citing Perrinepod in each case as authority.
16 A contrary view was expressed by Kenneth Martin J in Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd , where his Honour concluded that 'at least at the order nisi level' the question should be approached on the basis that the test applicable to a tribunal, rather than an inferior court, should be applied in relation to a determination by an adjudicator. That case was decided before Perrinepod , and although there is extensive discussion of aspects of the decisions in O'Donnell Griffin and Theiss , they are not referred to in the context of the relatively brief discussion as to the proper characterisation of the process of determination by an adjudicator.
17 Subsequently in Red Ink Homes Pty Ltd v Court , Kenneth Martin J revisited the question in light of the decisions in Perrinepod , Cape Range Electrical Contractors and Ellis [No 2] , and decided to follow the approach to the question taken in those cases, qualified by the statement that whether the question was conclusively settled 'is a matter for another day'.
18 WQube submits that the question of whether an adjudicator is property characterised as an inferior court or a tribunal for the purposes of certiorari remains open in this jurisdiction. Marine & Civil did not argue to the contrary, but submitted that the preponderance of authority in this State supports the conclusion that the function of an adjudicator in making a determination under s 31 of the CC Act is a function in the nature of an inferior court.
19 WQube contends that I should adopt the position as has been determined in corresponding legislation in Victoria and New South Wales. It points to the decision of Vickery J in Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture , which concerned an application for certiorari in relation to a determination by an adjudicator under the Building and Construction Industry Security of Payment Act 2002 (Vic). In that case, after a reference to the observation of the High Court in Craig that inferior courts 'exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice', Vickery J determined that, in the absence of any formal requirements for adjudicators to have legal training, and on the basis that adjudicators did not exercise jurisdiction as part of a hierarchical legal system, adjudicators were not inferior courts for the purposes of certiorari.
20 As to the position in New South Wales, the applicant relies on Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd which dealt with an adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW). The question in that case was whether the determination which was made by an adjudicator was amenable to judicial review on the basis that adjudicators are tribunals exercising 'governmental powers'. The reference to 'governmental powers' reflects the expression used in Craig where the High Court said 'it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ'. In that context, the NSW court followed Grocon , holding that the determination was amenable to judicial review. It can be noted that in Chase Oyster Bar , the jurisdictional error which was alleged was the nonexistence of what is generally referred to as a 'jurisdictional fact', which would have come within one of the five (non-exhaustive) categories of errors, identified in Craig , which can found judicial review of decisions of an inferior court, namely where it is an essential condition of the exercise of jurisdiction that a certain event has occurred and in fact it has not occurred.
21 Decisions in relation to legislation in other States which differs from the CC Act must be approached with caution. The decision in Grocon , in so far as it deals with characterisation of the determination of an adjudicator, is relatively brief and turns on the proposition that the jurisdiction is not part of the hierarchical legal system. In my view, the starting point is to ask whether the legislation creating the adjudication process confers on an adjudicator the authority to determine questions of law. It is thus necessary to turn to the provisions of the CC Act.
22 The preamble to CC Act states that it is an Act for purposes which include providing a means for adjudicating payment disputes arising under construction contracts. The payment dispute arises if an amount is due to be paid under the contract, or security held is due to be returned under the contract, and the money has not been paid or the security returned. The function of an adjudicator is to dismiss an application for adjudication if certain requirements are not met, or otherwise to determine, on the balance of probabilities, whether any party to the payment dispute is liable to make a payment or return any security, and if so, to then determine the amount to be paid or returned and the date on or before which the amount is to be paid.
23 For the purposes of the determination, the adjudicator must act informally and make a determination on the basis of the application and its attachments, and any response to the application. The adjudicator is not bound by the rules of evidence and may inform himself or herself in any way that he or she thinks fit.
24 The determination must be in writing and satisfy certain requirements, including a requirement to give reasons for the determination. The determination is binding on the parties to the construction contract and a party liable to pay an amount under a determination must do so on or before the date specified in the determination. Determinations are final, and the consequences of non-compliance may lead to suspension of performance of obligations under the contract, with a consequent release from liability of the contractor for loss or damage resulting from suspension of performance. Determinations may be enforced as judgments in a court of competent jurisdiction.
25 A limited right of review by the State Administrative Tribunal is available in relation to a decision to dismiss an application without making a determination, but otherwise a decision or determination of an adjudicator cannot be appealed or reviewed. However, a determination under the CC Act does not prevent a party to a construction contract from instituting proceedings before an arbitrator or a court in relation to the dispute. An arbitrator or a court or other body dealing with such a dispute must, in making the award or judgment, allow for any amount that has been paid pursuant to a determination, or make orders for restitution of any amount so paid.
26 It is well accepted that the scheme of adjudication under the CC Act is to provide a speedy and informal way of determining disputes arising out of construction contracts in order to keep the money flowing down the contractual chain. As Murphy JA observed in Perrinepod :
Fourthly, the object of the scheme is to determine payment disputes arising out of construction contracts 'fairly and as quickly, informally and inexpensively as possible' (s 30), with the primary aim of keeping the money flowing down the contractual chain. That purpose is confirmed by the following passage taken from the Minister's Second Reading Speech (WA Hansard, 3 March 2004, 275):
'When a party to a construction contract believes it has not been paid in accordance with the contract, the Bill provides a rapid adjudication process that operates in parallel to any other legal or contractual remedy. The rapid adjudication process allows an experienced and independent adjudicator to review the claim and, when satisfied that some payment is due, make a binding determination for money to be paid. The rapid adjudication process is a trade-off between speed and efficiency on the one hand, and contractual and legal precision on the other. Its primary aim is to keep the money flowing in the contracting chain by enforcing timely payment and sidelining protracted or complex disputes. The process is kept simple, and therefore cheap and accessible, even for small claims. In most cases the parties will be satisfied by an independent determination and will get on with the job. If a party is not satisfied, it retains its full rights to go to court or use any other dispute resolution mechanism available under the contract. In the meantime, the determination stands, and any payments ordered must be made on account pending an award under the more formal and precise process.'
I agree with the observations of the Tribunal in Match Projects (at [51]) that the scheme of the Act contains a bias in favour of the payment of money in accordance with adjudication determinations in furtherance of the underlying purpose of maintaining the flow of money. As indicated in the above passage from the Second Reading Speech, contractual and legal precision is required necessarily to yield, to a degree, to allow for the speedy resolution of disputes.
27 There is no doubt that, in undertaking an adjudication, an adjudicator is required necessarily to determine questions of law. Most obviously, an adjudicator is required to construe the terms of the relevant construction contract which is the subject of dispute. He or she must determine whether or not the requirements of the contract have been met such that a payment is due, or a security must be returned. The decision of the adjudicator clearly affects legal rights and obligations, even though those same rights and obligations may be the subject of the other court or arbitration proceedings. The fact that there must be allowance for the amount of the adjudicator's determination in any subsequent award or judgment by an arbitrator or court recognises that the arbitrator or court may, after a more thorough process, identify errors of fact or law made by the adjudicator. Notwithstanding the recognition in the CC Act of that possibility, the adjudicator's determination is nevertheless binding and enforceable as a judgment. In my view, that regime supports the conclusion that the legislature intended to confer upon an adjudicator jurisdiction to determine questions of law authoritatively, and also the power to determine those questions wrongly without attracting prerogative relief.
28 For that reason, I am of the view, consistent with the weight of authority in this State, that the test for due jurisdictional error in relation to a determination under s 31 of the CC Act is that applicable to an inferior court.
29 On that basis, as WQube conceded, grounds 1 and 2 do not identify errors capable of supporting an application for judicial review and should be dismissed. Because the alleged errors were fully argued, I will nevertheless deal with grounds 1 and 2 in detail.
Ground 1 - Error in relation to the superintendent's representative - CIV 1045 of 2014
30 The general conditions of contract which are applicable in relation to both adjudications provide, at cl 20, that the principal shall ensure that at all times there is a superintendent and that the superintendent fulfils all aspects of the role and functions reasonably and in good faith. Clause 21 provides for the appointment of superintendent's representatives. It reads:
The Superintendent may from time to time appoint individuals to exercise delegated Superintendent's functions, provided that:
a) no aspect of any function shall at any one time be the subject of delegation to more than one Superintendent's Representative ;
b) delegation shall not prevent the Superintendent exercising any function;
c) the Superintendent forthwith gives the Contractor written notice of respectively:
i) the appointment, including the Superintendent's Representative's name and delegated functions; and
ii) the termination of each appointment; and
…
31 One of the functions of the superintendent is to issue progress certificates. Clause 37.1 provides for the contractor to make progressive payment claims in writing to the superintendent. Clause 37.2 provides as follows:
The Superintendent shall, within 14 days after receiving such a progress claim, issue to the Principal and the Contractor :
a) a progress certificate evidencing the Superintendent's opinion of the moneys due from the Principal to the Contractor pursuant to the progress claim and reasons for any difference (' progress certificate '); and
b) a certificate evidencing the Superintendent's assessment of retention moneys and moneys due from the Contractor to the Principal pursuant to the Contract .
If the Contractor does not make a progress claim in accordance with Item 28 , the Superintendent may issue the progress certificate with details of the calculations and shall issue the certificate in paragraph (b).
If the Superintendent does not issue the progress certificate within 14 days of receiving a progress claim in accordance with subclause 37.1, that progress claim shall be deemed to be the relevant progress certificate .
The Principal shall within 7 days after receiving both such certificates, or within 21 days after the Superintendent receives the progress claim, pay to the Contractor the balance of the progress certificate after deducting retention moneys and setting off such of the certificate in paragraph (b) as the Principal elects to set off. If that setting off produces a negative balance, the Contractor shall pay that balance to the Principal within 7 days of receiving written notice thereof.
Neither a progress certificate nor a payment of moneys shall be evidence that the subject WUC has been carried out satisfactorily. Payment other than final payment shall be payment on account only.
32 On 3 April 2014, Marine & Civil made the application for adjudication which is the subject of CIV 1645 of 2014 (the Loots application). It recited the contract and that Marine & Civil had made a payment claim on 28 February 2014, for an amount of $2,830,920.84, which had been submitted to 'the Superintendent's appointed representative and agent, Heath Mallen of Hyder Consulting Pty Ltd'. It also recited that, on 5 March 2014, in accordance with cl 37.2 of the contract, the superintendent's representative issued to both WQube and Marine & Civil a payment recommendation which recommended payment in full of the payment claim, and that that payment recommendation constituted a progress certificate in accordance with cl 37.2 of the contract.
33 The Loots application then recited that Marine & Civil claim that the payment claim was due within seven days of the date of the issue of the payment recommendation, that is, by 12 March 2014, in accordance with cl 37.2 of the contract. However, on 14 March 2014, Mr Kerry Craven of WQube issued Marine & Civil a letter from the 'Director - Development' of WQube, providing written notice of the appointment of Mr Craven as the new superintendent under the contract, and a further letter from Mr Craven (purportedly as the new superintendent) stating that Mr Mallen had not been appointed as the superintendent's representative and that the payment recommendations issued by Mr Mallen were not progress certificates. The letter enclosed a document entitled 'Payment Certificate', dated 14 March 2014, which stated that no monies were payable to Marine & Civil with respect to the payment claim at all. Marine & Civil claim that the certificate purportedly offered by Mr Craven was of no force or effect, and that WQube were obliged to pay the amount of the claim pursuant to cl 37.2 of the contract. The Loots application then elaborated on those summarised facts, and others, in detail.
34 In relation to the identity of the superintendent's representative, reference was made to an email, dated 16 September 2013, from Mr Mallen to Mr Michael Lenihan of Marine & Civil. That email commenced:
As just discussed, I am working with Dave Teahan from BCH Hyder on the Dampier Port Project and Mo Dowidar at Qube [sic] has asked me to undertake the monthly claims and variation assessment on his behalf.
35 The email then raised a number of questions in relation to what was described as 'claim number 2' and the documents submitted with it. The Loots application described the email of 16 September 2013 as 'written notice of appointment'.
36 Clause 3.12 of the Loots application then asserted:
Under the Written Notice of Appointment, Heath Mallen of Hyder Consulting was not only appointed as the Superintendent's Representative but was also delegated with the task of undertaking the monthly claims and assessments of progress claims in accordance with the Contract;
(i) all payment claims issued by M&C subsequent to the Written Notice of Appointment were issued to Heath Mallen as the Superintendent's Representative in accordance with the Written Notice of Appointment, with copies to David Teahan (of BCH Ryder) and at least one representative of WQube (either Kerry Craven, Michael Yiend or Mo Dowider);
(ii) all payment recommendations relating to the Contract issued subsequent to the Written Notice of Appointment were issued by 'Heath Mallen - Superintendent's Representative' with copies to at least one representative of each of BCH Ryder (either David Teahan or Matthew Old), WQube (either Kerry Craven, Mo Dowider, Antony Perkins or Andrew Davis) and M&C (either Nick Teo, Michael Lenihan, Simon Stafford, Chris Angel and Keith Gavin);
(iii) WQube did not, until issuing the Purported Payment Certificate, issue any alternative payment recommendations or payment certificates in accordance with clause 37.2 of the Standards or otherwise state that the Superintendent's Representative was not the appointed superintendent's representative for the purposes of the Contract;
(iv) up until the date of the Purported Payment Certificate, WQube paid all payment claims as assessed pursuant to and on the basis of, payment recommendations issued by Heath Mallen, the Superintendent's Representative, which amounted to 5 payment claims (excluding the Payment Claim) and payment recommendations issued by Heath Mallen in his capacity as the Superintendent's Representative.
37 The Loots application then turned to matters based on a merits assessment of the claim, noting that if the adjudicator found that an amount is deemed payable by reason of the operation of the contract, then the section of the application concerned with merits could be ignored.
38 Mr Loots was appointed, in accordance with the relevant contract, by the Chairman of the WA Chapter of the Institute of Arbitrators and Mediators Australia on 7 April 2014. On 8 April 2014, Mr Loots wrote to the parties setting out the procedure proposed in relation to the adjudication.
39 On 17 April 2014, WQube lodged its adjudication response. The response identified that one key issue was whether Mr Mallen was the superintendent's representative, and whether his payment recommendation was a progress certificate for the purposes of cl 37.2 of the contract. Another key issue was whether the progress certificate issued by Mr Craven was a valid progress certificate.
40 In relation to the role of Mr Mallen, the response asserted that there is a clearly defined method for the appointment of a superintendent's representative under cl 21 of the contract, that a superintendent's representative was never appointed under cl 21, that Mr Mallen's email of 16 September 2013 'does not say that he was appointed the superintendent's representative …' and that Mr Mallen did not have the authority to contractually bind WQube. A number of statutory declarations by various officers of WQube, Mr Mallen and Mr Teahan (of Hyder Consulting) accompanied the response, all deposing to the proposition that Mr Mallen was not appointed as superintendent's representative.
41 On the same day, Marine & Civil's solicitors wrote to Mr Loots seeking that he exercise his discretion under s 32(2)(a) of the CC Act to request that Marine & Civil make further submissions and provide any supporting documentation in relation to issues raised by the response, including the assertion that Mr Mallen was not acting as the superintendent's representative. The solicitors for WQube responded by opposing any further submissions being received. In response, Mr Loots sought further submissions. Both parties then made detailed submissions on the question.
42 On 1 May 2014, Mr Loots' made and published his determination. Mr Loots recited that in making his determination, he had regard to the application, the respondents' response, the statutory declarations provided by WQube, and supporting documentation provided with the application and response. In light of WQube's objections to the provision of further submissions, Mr Loots elected to withdraw his request for submissions and disregarded in their entirety the responses which had been provided by the parties following that request. In relation to the question of Mr Mallen's authority, Mr Loots said:
The Respondent says that Heath Mallen was not the Superintendent's Representative as at 16 September 2013 or at all; I find on the facts that the Superintendent did delegate his powers and functions under the Contract relevant to this payment dispute to Heath Mallen, sa [sic] evidenced by the email dated 16 September 2013 and the subsequent conduct of the parties and that in particular Heath Mallen was delegated the task of undertaking the assessment of progress claims in accordance with the Contract. I therefore conclude that Heath Mallen was the Superintendent's Representative on 28 February 2014 when the Payment Claim was made, and on 5 March 2014 when he issued to the Applicant and the Respondent a Payment Recommendation - CL008-PR022-STG1 (PR022) 'version 2' recommending payment of the Payment Claim in full without revision or amendment. The amount of the Payment Claim to which this payment recommendation referred was $2,830,920.84 (inclusive of GST) as reflected in Tax Invoice No 1519A dated 28 February 2014. Heath Mallen signed the Payment Recommendation as 'Superintendent's Representative' and addressed the Payment Recommendation 'WQube Port of Dampier Pty Ltd, Level 22, 44 Market St, Sydney NSW 2000 Attention Kerry Craven cc: Michael Yiend, David Teahan, Chris Angel, and Keith Gavin. The respondent in fact acknowledged Heath Mallen as the Superintendent's Representative and treated the previous payment recommendations signed by Heath Mallen as 'Superintendent's Representative' as express authority to make payment to the Applicant, and as valid progress certificates, and by paying the payment recommendations without question, confirmed the status of Heath Mallen on each occasion and at the relevant time up to 14 February 2014 [Application at paragraph 3.12(i) to (iv)].
I find that the Respondent was aware that Heath Mallen had been issuing Payment Recommendations under the title of 'superintendent's Representative', and failed advise the Applicant that Heath Mallen had no such authority, but rather paid the Applicant on the basis of such Payment Recommendations, I determine that as a matter of fact Heath Mallen was the Superintendent's Representative as at 28 February and 5th March 2014 [58] - [59].
43 Earlier in the reasons Mr Loots had made a finding that, up until 14 March 2014, WQube had paid all the payment recommendations issued by Mr Mallen who had held himself out to be the superintendent's representative.
44 Having reached the conclusion that Mr Mallen had, as superintendent's representative, issued a payment recommendation in relation to the claim, WQube was obliged to pay the claim. Accordingly, he determined that it was unnecessary for him to assess the merits of the claim.
45 The error of law which is said by WQube to have been made is that the factual finding that Mr Mallen had been appointed as superintendent's representative was made in the complete absence of any evidence of an appointment. WQube submits that cl 21 of the contract required that 'the Superintendent forthwith give the contractor written notice' of the appointment, and there was no such written notice before the adjudicator. WQube submits that the email of 16 September 2013 could not have been a notice which complied with cl 21(c) because it was a communication from Mr Mallen, rather than the superintendent. It relies on Pacific Carriers Ltd v BNP Paribas for the proposition that an agent cannot prove its own authority.
46 Mr Loots did not reach his decision based only on the email of 16 September 2013. He had regard to the fact that, following that advice, Mr Mallen undertook the function of the superintendent under cl 37.2 on a number of occasions prior to the lodgement of the claim the subject of the adjudication. WQube treated those payment recommendations as valid progress certificates. That was evidence capable of supporting the inference that Mr Mallen had been appointed as superintendent's representative for the purpose of assessing payment claims. That was consistent with the substance of what was contained in Mr Mallen's email of 16 September 2013.
47 In that context, I should note that I do not consider that the giving of notice pursuant to cl 21(c) was necessary for a valid appointment under cl 21 to occur. While there was a contractual requirement for the superintendent to give written notice of an appointment, no doubt so as to keep the contractor fully informed, a failure to comply with that requirement does not necessarily lead to the conclusion that the superintendent had not appointed an individual to exercise a delegated function.
48 In Australian Broadcasting Tribunal v Bond , Mason CJ said:
But it is said that "[t]here is no error of law simply in making a wrong finding of fact": Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J at p 77. Similarly, Menzies J. observed in Reg v The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654:
Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
49 In my view, the evidence of Mr Mallen's assertion that he had been appointed to perform one of the functions of the superintendent, and the evidence that he had in fact undertaken that task, and his actions had been acted upon by WQube, was all evidence capable of giving rise to the inference drawn by Mr Loots that an appointment of Mr Mallen as superintendent's representative had been made.
50 Ground 1 would not be made out, even if the adjudicator's function was in the nature of an administrative tribunal.
Ground 1 - Error in relation to Superintendent's Representative - CIV 1663 of 2014
51 WQube's submissions on this ground reiterated the submissions made in relation to the Loots determination.
52 In relation to the question on Mr Mallen's appointment, Mr Anstee-Brook referred to WQube's argument that Mr Mallen was not a delegate of the superintendent, and said:
15.3. The facts do not support the Respondent and in my view the facts support the position that Mallen was the superintendent's representative.
15.3.1. On 16 September 2013 Mallen advised ML of the Applicant that MD of the Respondent had requested Mallen to do the monthly assessments of claims and variations on MD's behalf.
15.3.2. During the period September 2013 to February 2014 the Applicant submitted all payment claims to Mallen and in response to each of these claims Mallen issued a document entitled Payment Recommendation. Important features of the Payment Recommendation are:
• Mallen signed as the Superintendent's Representative;
• The payment recommendation contains the following statement: Hyder Consulting have reviewed this claim and have confirm that in their opinion that the costs is [sic] fair and reasonable. Hyder Consulting recommends this claim for payment.
• They were copied to various representatives of the Respondent.
15.4. All payment claims but for the one submitted by the Applicant in February were paid by the Respondent.
15.5. I find that MD delegated his powers of superintendency to Mallen and that in issuing the Payment Recommendations Mallen was doing so pursuant to clause 37.2 of the Unexecuted Contract.
53 It is clear that Mr Anstee-Brook did not base his findings solely on the email of 16 September 2013, as contended by WQube, but rather had regard to the conduct of Mr Mallen and WQube in order to support his finding. It was, therefore, evidence upon which the inference was open, and ground 1 would similarly fail on that basis in relation to Mr Anstee-Brook's determination.
Ground 2 - Bona fide attempt to exercise jurisdiction - CIV 1645 of 2014
54 It was said in Brody Pty Ltd t/as Time Cost and Quality v Davenport that it was a basic requirement of an adjudicator to make a bona fide attempt to exercise the relevant power relating to the subject matter of the legislation, and that if that basic requirement is not complied with then a purported determination will be void. The question of what is meant by 'bona fide attempt' to exercise the power has been discussed in a number of decisions in New South Wales. In Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd , McDougall J repeated what he had said in Laing O'Rourke Australia Construction Pty Ltd v H & M Engineering & Construction Pty Ltd where he said that for administrative bodies to act in good faith they must put 'their minds to the comprehension and their wills to the discharge of their duty'.
55 Having regard to what was said by Giles JA (with whom McColl and Young JJA agreed) in Perform (NSW) Pty Ltd v Mev-Aust Pty Ltd , it is surprising that this allegation was made in these proceedings. Giles JA said:
It should be said at once that there is no substance in this ground. As with charging wholesale departure from adjudication according to the Act, an allegation of lack of bona fide exercise of powers should not lightly be made. Brereton J in Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 at [97] cited, from SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 261 ; (2002) 194 ALR 749 that "an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker". As noted by McDougall J in John Goss Projects Pty Ltd v Leighton Contractors (2000) NSWSC 798 ; (2006) 66 NSWLR 707 at [58], s 30(1) of the Act dealing with an adjuducator's [sic] protection from liability involves acting "in good faith"; the concepts in their contexts may differ but this adds to the restraint to be exercised in alleging that an adjudicator has not bona fide exercised the power under the Act. In the present case the lack of substance is such that the allegation should not have been made against the adjudicator.
56 The basis of the allegation in this case is that there was 'copious evidence before the adjudicator as to Mr Mallen's role in the administration of the contract'. That evidence was contained in various statutory declarations. WQube asserts there is nothing on the determination to suggest any intellectual engagement with the evidence contained in those statutory declarations.
57 In any analysis of a determination by an adjudicator under the CC Act, it is important to bear in mind the context in which the determinations are made. In order to achieve the objects of the CC Act, as explained by Murphy JA in the passage from Perrinepod , short time frames are imposed in relation to the making of an application, the provision of the response, and, importantly, the provision of a determination by the adjudicator. The adjudicator is required to act informally and to make the determination on the basis of the application and its attachments, and the response and its attachments.
58 In this case, the issue concerning Mr Mallen's appointment was squarely placed before the adjudicator by the response and the documents accompanying it. It was highlighted by the request by Marine & Civil to make further submissions in relation to that issue. That request was opposed by WQube, and ultimately, although further submissions were provided, they were not taken into account by Mr Loots in his determination. In his determination, Mr Loots made specific reference to the fact that he had regard to the application, the response, and the various statutory declarations submitted by WQube. At par 48C of the Loots determination, he recited having read the documentation presented by the parties, including the statutory declarations supporting the contentions of each of the parties. As to the question of Mr Mallen appointment, it is clear from the passage in the determination set out above, that Mr Loots addressed the questions specifically and explained his reasons for the conclusion which he reached. It is implicit that he did not consider that the information contained in the statutory declarations lodged by WQube displaced his conclusion. The fact that he did not specifically deal with the content of those statutory declarations does not lead to the conclusion that he did not address the question for determination in good faith.
59 Ground 2 is not made out in relation to Mr Loots' determination.
Ground 2 - Bona fide attempt to exercise jurisdiction - CIV 1663 of 2014
60 The position is the same in relation to Mr Anstee-Brook's determination.
61 After being provided with the application in response, Mr Anstee-Brook specifically requested that the parties provide further written submissions in respect of the question of Mr Mallen's appointment as superintendent's representative. He recited that request, and the fact that both parties provided a reply to the request, in his determination at par 13.1. He made specific reference to a statutory declaration of Mr Angel of Marine & Civil, which referred to dealings by Marine & Civil with Mr Mallen and Mr Mallen's issuing of payment recommendations and payment certificates. He made reference to WQube's argument that Mr Mallen was not appointed as superintendent's representative, and concluded, in the passage which I have set out above, that 'the facts (did) not support' WQube's position .
62 It simply cannot be said that Mr Anstee-Brook did not comprehend the issue which he had to determine, or that he did not put his mind to the issue.
63 Ground 2 has no merit in relation to Mr Anstee-Brook's determination.
Ground 3 - Compliance with s 26 of the CC Act
64 In each of the Loots determination and the Anstee-Brook determination, the adjudicator found that the application had been prepared and served in accordance with s 26 of the CC Act. That conclusion was hardly surprising, given that WQube expressly admitted that fact in each matter. Notwithstanding that admission, WQube now contends that the adjudicators should have found that they lacked jurisdiction to make a determination because the applications had not been prepared in accordance with s 26. The reason for that contention is that each application omitted the Australian Business Number (ABN), or the Australian Company Number (ACN), of the Institute of Arbitrators and Mediators Australia (IAMA) which was the nominated appointor of an adjudicator under the respective contracts. That piece of information is, of course, wholly irrelevant to any of the substantive issues to be dealt with by the adjudicator, and of absolutely no practical value to the parties to the adjudication. It would be a very surprising result if that omission could result in the determinations being declared void for want of jurisdiction. That is, however, the argument put by WQube. Unfortunately, it raises some issues of complexity with which it is necessary to deal.
65 In order to understand the argument, it is necessary to set out the relevant statutory provisions.
66 The starting point is s 31(2) of the CC Act. That subsection provides:
31. (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.
67 It can be seen that s 31(2)(a)(ii) requires that the application be dismissed if it 'has not been prepared and served in accordance with s 26'. Section 26 reads as follows:
26. (1) To apply to have a payment dispute adjudicated, a party to the contract, within 28 days after the dispute arises or, if applicable, within the period provided for by section 37(2)(b), must –
(a) prepare a written application for adjudication;
(b) serve it on each other party to the contract;
(c) serve it -
(i) if the parties to the contract have appointed a registered adjudicator and that adjudicator consents, on the adjudicator;
(ii) if the parties to the contract have appointed a prescribed appointor, on that appointor;
(iii) otherwise, on a prescribed appointor chosen by the party;
and
(d) provide any deposit or security for the costs of the adjudication that the adjudicator or the prescribed appointor requires under section 44(8) or (9).
(2) The application -
(a) must be prepared in accordance with, and contain the information prescribed by, the regulations;
(b) must set out the details of, or have attached to it -
(i) the construction contract involved or relevant extracts of it; and
(ii) any payment claim that has given rise to the payment dispute;
and
(c) must set out or have attached to it all the information, documentation and submissions on which the party making it relies in the adjudication.
(3) A prescribed appointor that is served with an application for adjudication made under subsection (1) must comply with section 28.
68 Section 26(2)(a) specifies that the application 'must be prepared in accordance with, and contain information prescribed by, the regulations'. The regulations referred to are the Construction Contracts Regulations 2004 (WA). There is nothing in the regulations which deals with the 'preparation' of an application, or the form in which it should be prepared. Regulation 5, however, deals with the information which must be contained in an application for the purposes of s 26(2)(a). Regulation 5 provides:
5. Prescribed information in application for adjudication
For the purposes of section 26(2)(a) of the Act, an application to have a payment dispute adjudicated must, in addition to the other information required by section 26(2) of the Act, contain –
(a) the name of the appointed adjudicator or prescribed appointor and the adjudicator's or appointor's contact details;
(b) the applicant's name and contact details; and
(c) the respondent's name and contact details.
69 As can be seen, reg 5(a) stipulates that the 'contact details' of the prescribed appointor. Contact details are dealt with in reg 4 which provides:
4. Giving a person's contact details
If a person is required by these regulations to give the contact details of a person, the person required to give the details must give the address, telephone and facsimile numbers and ABN of the person or the person's business (or ACN of the person if there is no ABN) to the extent to which the person required to give the details knows those details.
70 In essence, WQube's argument is that because the adjudication applications did not contain IAMA's ABN or ACN, it did not contain the information prescribed by the regulations, and was thus not 'prepared in accordance with s 26', and, accordingly, the adjudicator was obliged to dismiss the application without making a determination of its merits pursuant to s 31(2).
71 Before leaving the relevant provisions of the CC Act, I should note that s 28 deals with the task of an appointor who is served with an application for adjudication. Essentially, its task is to make an appointment, send the application and any response to the adjudicator, and notify the parties and the Building Commissioner in writing of the appointment. The appointor's function is then complete. If the identification of the appointor's ABN or ACN ever served any practical purpose, which is not readily apparent, it is certainly of no relevance to the adjudicator's function once the appointor has made the appointment.
72 Marine & Civil raised a number of matters in answer to this ground.
73 The first is that s 31(2)(a)(ii) requires only that the adjudicator is satisfied that an application has been prepared and served in accordance with s 26, so that it is not for this Court on judicial review to determine the actual existence or non-existence of that fact. This turns on a consideration of whether s 31(2)(a)(ii) is what is commonly referred to as a 'broad jurisdictional fact' rather than a 'narrow jurisdictional fact'.
74 The second contention is that the ABN or ACN need only be included 'to the extent which Marine & Civil knows those details'. That contention is based on the plain words of reg 4, but the issue between the parties is whether or not knowledge must be actual or can be constructive. Marine & Civil contend that, in fact, it did not know of IAMA's ABN or ACN.
75 The third contention is that the requirement that an application be 'prepared' in accordance with s 26 does not entail a requirement that it 'contain the prescribed information'. This contention is based on an argument as to construction of the CC Act which, it is argued, distinguishes between preparation of the application, on the one hand, and information to be contained in the application, on the other.
76 It is necessary to turn to each of those arguments in turn.
Broad or narrow jurisdictional fact
77 The distinction between a jurisdictional fact in the narrow sense, and a jurisdictional fact in the broad sense, was explained by Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL where he said:
Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
Where the process of construction leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts.
78 The characterisation of s 31(2)(a) was specifically addressed by Pritchard J in Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd . Her Honour concluded that s 31(2)(a)(ii) should not be characterised as a jurisdictional fact in the narrow sense and, thus, that 'the question is not whether the criterion in s 31(2)(a)(ii) in fact existed. Rather the focus must be on the process by which the adjudicator came to that conclusion'. She based that conclusion on three matters. The first was that s 31(2)(a)(ii) required the making of a judgment about whether the legal criteria set out in s 26 had or had not been met, which may be a question which is far from clear on the face of the contract. The second was the context in which s 31(2)(a)(ii) appears, and the unlikelihood that Parliament would have intended that some of the matters in s 31(2)(a) should be characterised as jurisdictional in the narrow sense, and others in the broad sense. Given that s 31(2)(a)(iv) is clearly expressed as a jurisdictional fact in the broad sense, her Honour considered that the other matters should be similarly construed. Finally, her Honour considered that the conclusion that an adjudicator under the CC Act is analogous to an inferior court provided support for the conclusion that Parliament did not intend that the jurisdictional fact in s 31(2)(a)(ii) would be a jurisdictional fact in the narrow sense.
79 With respect, I agree with the conclusion reached by Pritchard J.
80 The question was left open by Murphy JA, with whom Martin CJ agreed, in Perrinepod . I do not consider that what was said by McLure P in Perrinepod leads to a different conclusion. Her Honour said:
In my view, the text, immediate context and purpose of s 31(2)(a) drive the conclusion that the matters in subpars (i) - (iv) are intended to be jurisdictional facts which must exist in order to enliven the adjudicator's power to make a determination on the merits under s 31(2)(b).
81 The use of the words 'must exist' may tend to suggest that her Honour was referring to jurisdictional facts in the narrow sense. It must be noted, however, that she used that expression in relation to all four of the subparagraphs of s 31(2)(a). Earlier, her Honour said:
Whether a criterion is a jurisdictional fact is a question of statutory construction. A consequence of characterising a fact as “jurisdictional” is that it significantly enlarges the scope of judicial review. The court's judicial review power is confined to intervening when a decision-maker has made a jurisdictional error (or there is an error of law on the face of the record). Ordinarily, an error of fact does not give rise to a jurisdictional error and thus is outside the scope of the court's review power. Not so when a fact is jurisdictional. The court must be satisfied that a jurisdictional fact actually (objectively) exists. To satisfy a criterion of the type in s 31(2)(a)(iv), the decision-maker must actually have the requisite state of mind (satisfaction) for which there must exist reasonable grounds.
82 In those circumstances, I do not consider that McLure P was intending to determine the question, which the other members of the Court expressly said did not need to be determined, of whether or not any of the criteria in s 32(2)(a) are jurisdictional facts in the narrow sense or the broad sense, or which criteria fall into one or other classification.
83 I note that in Red Ink Homes , Kenneth Martin J followed the approach to this question taken by Pritchard J in Cape Range Electrical Contractors .
84 WQube submits, correctly, that, if the matter in s 31(2)(a)(ii) is a broad jurisdictional fact, then it is necessary to inquire as to whether the opinion required by the provision had really been formed. Further, it argues that an opinion formed upon an assumption which had no basis in the evidentiary material is treated as a failure to exercise jurisdiction.
85 There can be no question that each of the adjudicators formed the opinion that an application had been prepared in accordance with s 26. They said as much in their reasons. As I have already noted, it is hardly surprising that they formed that opinion given that it was an admitted fact. There is no basis to contend that the adjudicators did not reach the required satisfaction as to compliance with s 26(2)(a)(ii).
86 Nor can it be said that there was no evidentiary material upon which that determination was based. There was an admission to that effect. Furthermore, a review of the applications would reveal that the only omission from the possible contact details that might be included was the ABN or ACN. Given that contact details were only required to be included to the extent to which they are known, and given that no point about the absence of those numbers was taken by WQube, and indeed WQube admitted to compliance with s 26(2)(a)(ii), it would have been reasonable for the adjudicators to infer that the ABN or ACN was not known to Marine &Civil. It cannot be said that there was no basis in the evidentiary material for the adjudicators to reach the conclusion which they did.
87 It follows that ground 3 fails on the basis of the first of Marine & Civil's contentions. Because I am aware that there are other matters awaiting resolution in this Court which involve the same contentions in relation to inclusion in an adjudication application of the ABN or ACN of an appointor, I will deal with the other contentions raised by Marine & Civil.
Was IAMA's ABN or ACN known to Marine & Civil?
88 This question arises only if s 31(2)(a)(ii) is a jurisdictional fact in the narrow sense, and it is necessary to determine whether in fact there was an application prepared in accordance with s 26 (which I have concluded it is not).
89 Marine & Civil relied on an affidavit of Mr Damian Timothy Ryan, the Managing Director of Marine & Civil, who has been responsible, since February 2011, for instructing solicitors to prepare adjudication applications. He deposed to the fact that at no time prior to the adjudication applications the subject of both these proceedings did he know the ABN or ACN of IAMA. Marine & Civil also relied on the affidavit of Mr Anthony Michael Fifield, a solicitor who had the carriage of the applications for adjudication on behalf of Marine & Civil. He deposed to the fact that the relevant contracts provided for the appointment of the Institute of Arbitrators and Mediators Australia (Western Australian Chapter) as the prescribed appointor for the agreement. No contact details of the nominated appointor were included in the contracts, and Mr Fifield caused a solicitor in the employment of his firm to extract the contact details from the website of the Western Australian Chapter of IAMA. A screen shot of the website shows various contact details, not including any ABN or ACN.
90 I am satisfied, on the basis of that evidence, that in fact the ABN or ACN of the appointor was not known to those directly involved in the preparation of the applications on behalf of Marine & Civil.
91 WQube argues that Marine & Civil could readily have discovered IAMA's ABN or ACN either by doing a company search or from other correspondence received by Marine & Civil from IAMA. The other correspondence referred to are letters to both Marine & Civil and WQube from IAMA dated 7 April 2014, and attached to an affidavit of Sandra Marianne Steele sworn on 10 July 2014. Those letters postdate the relevant applications for adjudication, which were dated 3 April 2014. They do not assist in determining Marine & Civil's knowledge at the relevant date.
92 I do not accept that the knowledge referred to in reg 4 should be construed as constructive knowledge such that, if information were ascertainable from some public source, a person making an application for adjudication should be taken to know the relevant details. All of the details referred to in reg 4 are of a kind which might reasonably be readily ascertainable by recourse to publicly available information. If an applicant for adjudication were constructively fixed with knowledge of all details which it might, by investigation, be able to ascertain, the words 'to the extent to which the person required to give the details knows those details' would have no work to do. The approach urged by WQube to this issue raises questions as to the extent that searches might be required to be undertaken in order to make a valid application. The statutory object of providing a speedy and informal process of resolution of payment disputes is not served by that approach to construction of reg 4. The approach flies in the face of the plain meaning of the words used in reg 4.
93 WQube also argues that it can be inferred that Marine & Civil had actual knowledge of IAMA's ACN and/or ABN because:
a. in 2005 it was involved in an adjudication under the CC Act against a Leighton joint venture in which IAMA was the prescribed appointor; and
b. in 2003 a related company, Marine & Civil Construction Co Pty Ltd, became involved in an arbitration, and IAMA nominated the arbitrator: Doric Building Pty Ltd v Marine & Civil Construction Co Pty Ltd .
94 Neither of those facts, dredged up by WQube's legal advisers, provides a foundation upon which to conclude that, when it made the applications for adjudication the subject of these proceedings, Marine & Civil, or the relevant persons within that company, knew of IAMA's ABN or ACN. The evidence as to the adjudication in 2005 involving the 'Leighton joint venture' is contained in the affidavit of Ms Steele sworn on 10 July 2014. She learnt of this adjudication by telephoning the deputy chair of the WA Chapter Committee of IAMA and enquiring whether M&C had previously been involved in any adjudications with IAMA. She was informed of the earlier adjudication and advised of a decision of the State Administrative Tribunal relating to it, and told that IAMA appointed the adjudicator for that adjudication. The State Administrative Tribunal decision is reported as Marine & Civil Bauer Joint Venture and Leighton Kumagai Joint Venture . That decision does not disclose anything about the corporate entities making up 'Marine & Civil Bauer Joint Venture'. Even if Marine & Civil was a party to the joint venture and involved in the adjudication, that says nothing about whether IAMA's ABN or ACN were ever disclosed to Marine & Civil in the context of that adjudication.
95 As to the arbitration in 2003, it involved a different company, Marine & Civil Construction Co Pty Ltd. Again, simply because there were arbitration proceedings where IAMA nominated an arbitrator in 2003 says nothing about whether IAMA's ABN or ACN was disclosed to the participants in that arbitration at the time. Even if it was, the party to the arbitration, Marine & Civil Construction Co Pty Ltd is a separate entity from Marine & Civil. There is no basis upon which its knowledge in 2003 should be imputed to Marine & Civil in 2014.
96 There is no basis to conclude that Marine & Civil knew of IAMA's ABN or ACN. Accordingly, the application contained the information required by the regulations. For that reason also, ground 3 cannot be sustained in relation to either of the determinations.
Preparation in accordance with s 26
97 Marine & Civil argues that an application for adjudication will be prepared and served in accordance with s 26, for the purposes of s 31(2)(a)(ii) of the CC Act, even if reg 4 and reg 5 have not been complied with. It argues that the meaning of the word 'prepared' is informed in part by s 26(1)(a) which refers to preparation of a 'written application for adjudication'. That can be contrasted, it argues, with s 26(2) which contains four categories of prescription concerning the application. They are:
i. the application 'must be prepared in accordance with the regulations' (s 26(2)(a));
ii. the application must 'contain the information prescribed by the regulations' (s 26(2)(a));
iii. the application must 'set out the details of, or have attached to it, the construction contract involved or relevant extracts of it' (s 26(2)(b)(i)) and 'any payment claim that has given rise to the payment' (s 26(2)(b)(ii)); and
iv. the applicant must 'set out, or have attached to it, all the information, documentation and submissions on which the party making it relies in the adjudication (s 26(2)(c)).
98 Marine & Civil argues that that analysis demonstrates that the legislature chose to draw a distinction between the preparation of an application and what an application must contain. It argues that that distinction is confirmed by reg 5 which also speaks of what the application must 'contain'. Thus, Marine & Civil argue that the requirement under s 31 that the adjudicator considers whether the application has been prepared in accordance with s 26 does not require that he have regard to the requirements of reg 4 and reg 5.
99 I do not accept that submission. Section 31(2)(a)(ii) requires consideration of whether the application has been 'prepared ... in accordance with s 26'. Section 26(2) identifies various features of an application which 'must' be included in the application. In order for an application to be prepared in accordance with s 26, the requirements of that section need to be met. I do not consider that an application could be said to have been prepared in accordance with s 26, if, for example, it did not set out the details of, or have attached to it, the matters referred to in s 26(2)(b)(i) and (ii) or the information described in s 26(2)(c). Similarly, the application would not accord with the requirements of s 26 if it did not contain the information prescribed by the regulations. It is only if all of that information is included that the application has been prepared in accordance with s 26.
100 That conclusion does not, of course, detract from my earlier conclusion that the contact details required to be contained within the application are only those which the person required to give the details knows. Nor does it mean that the adjudicator is required to go behind what is apparent on the face of the application. If a detail such as an ABN or ACN, or some other contact detail, is not shown on the application, it is open to an adjudicator to infer that that detail is not known to the applicant. That is especially so if compliance with s 26 is not in issue. The fact that inclusion of all of the contact details is not, because of the words 'to the extent to which the person ... knows those details', an absolute requirement, shows that the legislature did not intend that the adjudication process required that all details be included in the application in all cases. It would be contrary to the object of the CC Act to provide a quick informal adjudication, on an interim basis, of payment disputes, to construe s 31(2) as requiring an adjudicator to embark upon an enquiry as to an applicant's state of knowledge in relation to a matter that has no bearing on either the process of adjudication or its merits.
Ground 4 - invalidity of 14 March 2014 progress certificate
101 As already noted, this ground relates only to the Loots determination. It concerns an alternate basis upon which Mr Loots considered WQube to be liable. As can be seen from the terms of cl 37.2 of the contract, which are set out above at [31], it provided that if the superintendent did not issue a progress certificate within 14 days of receiving a progress claim, then the progress claim was deemed to be the relevant progress certificate. Mr Loots concluded that if his previously stated view as to the efficacy of Mr Mallen's payment recommendation was incorrect, then the superintendent had not issued a progress certificate within 14 days of receiving the progress claim and, therefore, the progress claim was the relevant progress certificate. WQube would then be liable on that basis.
102 In view of my conclusions on the preceding grounds, it is not strictly necessary for me to deal with this fourth ground which could only lead to the Loots determination being quashed if one or more of the earlier grounds dealing with the primary basis of his determination were successful. I will, however, deal with it for completeness.
103 WQube seeks to elevate what it says is a wrongful construction of the contract to a jurisdictional error on the basis that it amounted to a misapprehension or disregard of the nature and limits of the functions and powers of an adjudicator. That is said to have been manifested by a construction of the contract which was 'arbitrary, fundamentally wrong and inconsistent with the balance of the determination'.
104 In order to understand WQube's submissions, it is necessary to review that part of the Loots determination which deals with the alternative basis of liability. The relevant passages are found at pars 63 to 68 of the Loots determination. Those paragraphs read as follows:
63. The Respondent says that Kerry Craven assessed the Progress Claim as '$Nil' (the Craven Certificate) in accordance with the terms and conditions of the Contract, and that the Progress Certificate issued by Kerry Craven on 14 March 2014 is valid on the basis that clause 37.2 of the Contract has been complied with;
64. Clause 37.2 of the Contract requires the Superintendent to issue to the Principal and Contractor a progress certificate evidencing the Superintendent's opinion of the monies due from the Principal to the Contractor pursuant to the progress claim and reasons for any difference within 14 days after receiving such a progress claim.
65 Clause 37.2 of the General Conditions of Contract permits the Superintendent to issue the progress certificate only if the contractor does not make a progress claim in accordance with Item 28, namely by the end of the month. Since the Applicant had made a Progress Claim by the end of the month, the Progress Certificate issued by Kerry Craven on 14 March 2014 is invalid.
66. As the time for the issuing of a progress certificate had expired, and the time for issuing a progress certificate and the time for payment had expired, by the time that the Craven Assessment was issued I determine that the Craven Assessment is invalid.
67. Clause 37.2 states explicitly that if the superintendent does not issue the progress certificate within 14 days of receiving a progress claim in accordance with subclause 37.1, that progress claim shall be deemed to be the relevant progress certificate. If my previously stated view of the 'Payment Recommendation' is incorrect, I determine that the Superintendent did not issue the progress certificate within 14 days of receiving the progress claim in accordance with subclause 37.1 and that the Progress Claim is deemed to be the relevant progress certificate.
68. Clause 37.2 (as amended) requires that payment be effected within 14 days after the Superintendent receives the progress claim in accordance with subclause 37.1.
105 The papers reveal that the payment claim the subject of the adjudication was lodged by Marine & Civil on 28 February 2014. Mr Mallen made his payment recommendation on 5 March 2014. Pursuant to cl 37.2 of the contract, payment pursuant to Mr Mallen's payment recommendation was due on 12 March 2014.
106 If Mr Mallen's payment recommendation did not amount to a progress certificate, and is ignored, then cl 37.2 required the superintendent to issue a progress certificate within 14 days of 28 February, failing which the progress claim would be deemed to be the relevant progress certificate. It appears, therefore, that Mr Loots was in error in the conclusions which he expressed at par 65 and 66 of his reasons.
107 WQube contends that this error is a jurisdictional error of the type described by the court in Craig v South Australia where it said:
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. In the last mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern
108 The function which an adjudicator performs is the function identified in s 31 of the CC Act. Relevantly, Mr Loots' function was to determine on the balance of probabilities whether any party to the payment dispute was liable to make a payment. WQube does not identify how it is said that Mr Loots misconceived the nature of that function or the extent of his powers. Rather, it submits that his approach to contractual interpretation was 'arbitrary and fundamentally wrong such that it manifested a clear misapprehension by him of his power and function'. In this respect, it relies on the decision of Kenneth Martin J in Red Ink Homes where his Honour described an adjudicator's findings as to the existence of a construction contract as astonishing, inconsistent, irreconcilable with earlier conclusions, illogical, bizarre and irrational with the result that the adjudicators conclusions met 'the high threshold of showing a misapprehension or disregard for the nature and limits of adjudicator's functions or powers'.
109 The apparent error by Mr Loots in relation to the progress certificate issued by Mr Craven appears to be substantially based on questions of calculations of time periods and the application of time periods to provisions of cl 37.2 of the contract. In my view, Mr Loots' error is not susceptible to the same sort of criticisms as was made by Kenneth Martin J in Red Ink Homes . Mr Loots simply engaged in an exercise of construction of the provisions of cl 37.2. That did not involve any misapprehension or disregard of the nature or limits of his functions or powers under s 31 of the CC Act, even if it might be said that his conclusion was wrong.
110 WQube also asserts that it was denied procedural fairness in relation to Mr Loots' alternative determination. It argues that Mr Loots did not inform the parties of his intention to make his determination on the alternative basis which he did or give them any opportunity to make submissions in relation to it. WQube relies on the principles explained by Le Miere J in Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd where his Honour said:
Procedural fairness does not normally require decision makers to disclose their proposed conclusions. A decision maker should notify the parties of proposed conclusions that were not put forward by the parties and could not be easily anticipated: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Musico v Davenport [2003] NSWSC 977; John Holland Pty Ltd v TAC Pacific Pty Ltd [2009] QSC 205; [2010] 1 Qd R 302; Avopilang (NSW) Pty Ltd v Menard Bachy Pty Ltd [2012] NSWSC 1466. Generally speaking, the parties must anticipate possible findings and make submissions at the trial of the potential findings on the issues litigated. Nevertheless, procedural fairness may require the judge to hear the parties further if certain matters emerge in the judge's consideration of the case after trial which the judge regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial: McKay v Commissioner of Main Roads [2013] WASCA 135 [156] (Murphy JA).
111 It cannot be said that the validity of the purported progress certificate issued by Mr Craven is not a matter clearly in issue in the adjudication. In its adjudication response, WQube identified the 'key issues in dispute'. At par 1A.1(e), WQube identified as a key issue 'whether the superintendent, Kerry Craven, issued the progress certificate for stage 1 works in accordance with the contract'. Paragraph 1A.1(f) identified as a key issue 'whether the progress certificate was validly issued by Kerry Craven on 14 March 2014 in accordance with cl 37.2 of the contract'. The adjudication response recited the respondent's position on those issues as being that 'the superintendent, Kerry Craven, did not fail to assess the progress claim in accordance with the terms and conditions of the contract', and 'the progress certificate issued by Kerry Craven, the superintendent, on 14 March 2014 is valid on the basis that cl 37.2 of the contract had been complied with'. Those issues were identified in a context where Marine & Civil, in the adjudication application, had asserted that the purported payment certificate issued by Mr Craven was not a relevant payment certificate for the purposes of the payment claim and had based its entitlement to be paid on cl 37.2 of the contract, and rejected 'in its entirety any submission or allegation that the purported payment certificate was or is a valid payment certificate issued in accordance with cl 37.2 of the standards'.
112 It clearly fell to Mr Loots to make a determination as to the validity of the purported payment certificate issued by Mr Craven. That is what he sought to do in pars 63 to 68, albeit that it was not necessary for the purposes of determining the adjudication application. WQube's real complaint can only be that Mr Loots did not disclose his reasoning as to the construction of cl 37.2 to the parties, before proceeding to make his determination.
113 At par 1.8 of the adjudication response, WQube set out at length its submissions in relation to Mr Craven's compliance with cl 37.2 in providing his progress certificate on 14 March 2014. In doing so, specific reference was made to the provisions of cl 37.2 of the contract.
114 Marine & Civil accepts that the specific conclusions arrived at by Mr Loots at pars 65 and 66 of the Loots' determination were not contended for by either party. It submits however, and I agree, that given that the parties made submissions as to the validity of Mr Craven's progress certificate and the operation of cl 37.2, neither party was denied procedural fairness.
115 It must also be borne in mind that Mr Loots' conclusion on this issue was not the basis upon which he found WQube liable to make payment. It must also be borne in mind that the particular content of rules of procedural fairness will depend upon the nature of the power being exercised and the factual circumstances in which it is to be exercised. As I have previously noted, the process of adjudication under the CC Act is designed to proceed on an informal, speedy, but interim basis. Having the issue of validity of Mr Craven's progress certificate, and the application of cl 37.2 of the contract, squarely before him and the subject of detailed submissions from the parties, I do not consider that procedural fairness required Mr Loots to provide a further opportunity to the parties to be heard as to his conclusions on those questions simply because his construction of the clause was not one specifically urged on him by either party.
116 In my view, Mr Loots did not deny procedural fairness in relation to his alternative determination.
Conclusion
117 Each of the applications by WQube should be dismissed.