LSB September 2019_Web

BUILDING & PROPERTY LAW
Full Court had made an error by applying
the NSW case of Shade Systems Pty Ltd v
Probuild Constructions (Aust) Pty Ltd (No.2).
They concluded that the Building and
Construction Industry Security of Payment Act
1999 (NSW) prevented judicial review on
the ground of error of law on the face of
the record. Vadasz “contended that the
adjudicator had made no error of law”. 17
The determination as to whether the
Acts allowed the issue of judicial review
on the ground of error of law on the face
of the record, would move to the HCA.
Both cases were granted special leave
by the HCA. They were enjoined on 12
May, 2017. The hearing was held on 9
November, 2017, adjourned until Tuesday,
14 November, 2017. The HCA handed
down the decision on 14 February, 2018.
The HCA held in Probuild Constructions
(Aust) Pty Ltd v Shade Systems Pty Ltd 18 :
The only question in this appeal is whether
the scheme established by the Security of
Payment Act for claims for, and payment of,
progress payments ousts the jurisdiction of
the Supreme Court of New South Wales to
make an order in the nature of certiorari to
quash a determination by an adjudicator for
error of law on the face of the record that is
not a jurisdictional error. The answer is yes:
the Security of Payment Act does oust that
jurisdiction. 19
The HCA further added in Maxcon
Constructions Pty Ltd v Vadasz 20 :
However, it is important to add that, for the
reasons explained in Probuild, the Supreme
Court of South Australia may grant
relief (whether in the nature of certiorari
or otherwise) for jurisdictional error by an
adjudicator appointed under the Security of
Payment Act; but the provisions of the Security
of Payment Act, like the provisions of the
New South Wales Act, oust the Supreme
Court’s jurisdiction to make an order in the
nature of certiorari to quash an adjudicator’s
determination for error of law on the face of
the record that is not a jurisdictional error. 21
CONCLUSION
The decision appears to have been
well received by adjudicators. Adjudicators
32 THE BULLETIN September 2019
operate in an environment in which
Andrew Wallace termed; “decision is an
interim one and given that it is often made
in a “pressure cooker” environment under
extremely tight timeframes, 22 trying to
achieve what Lord Ackner coined in the
House of Lords, the ‘quick and dirty fix”. 23
Adjudication requires independence
and involves analysis of copious quantities
of documentation that make up the
application and the response, 24 and has, in
most states, 10 business days to make often
challenging determinations. To make the
issue more complicated, most adjudicators
come from the building and construction
industry, not lawyers. They usually have
backgrounds as civil engineers, project
managers, architects, and builders.
For example in WA in 2017-18, there
were 84 registered adjudicators of which
57 (or 68%) were non-lawyers, and 27
(32%) lawyers. 25 In the NT in 2017-18,
there were 42 registered adjudicators of
which 25 (or 60%) were non-lawyers, and
17 (40%) lawyers. 26
The HCA rightly recognises that
non-lawyer adjudicators may apply
the incorrect law, or make incorrect
conclusions of the facts presented to
them. The HCA concluded in Probuild: 27
The Security of Payment Act did not
authorise adjudicators to take unlawful steps
by making errors of law. What it did do, by
implication based upon a background legislative
assumption, was to immunise from judicial
review any non-jurisdictional error of law on
the face of the record.
It is unlikely that those who initially
championed security of payment
legislation saw adjudication in terms of
legal purity as opposed to what Lord
Ackner coined in the House of Lords,
the “quick and dirty fix”. 28 The former
Building Commissioner of Western
Australia, Mr Peter Gow affirmed; “The
adjudicator may have much more freedom
to balance cost and time against legal
purity”. 29 Non-jurisdictional error of law
on the face of the record “would imply
an expectation from the Judiciary that
an adjudicator would have the same legal
qualifications as a lawyer has.” 30
Had the HCA held differently, Frayne
SC would have been further vindicated by
his assertion. However, common sense
prevailed. The HCA decision confirmed
that Fenwick Elliott, was correct; “there
is no real immediate prospect of nonjurisdictional
error of law sufficing as a
ground for challenge under the West Coast
model any more than under the East Coast
model”. 31
Dr Steensma specialises in Construction
Law and ADR. He is an Arbitrator (Gde 3),
Adjudicator (WA & NT), Mediator (NMAS),
and Expert Determination Practitioner. He has
been a member of the Society’s ADR committee
since 2017.
The Author would also like to thank Professor
Philip Evans for his guidance in this paper. B
Endnotes
1 Robert Fenwick Elliott, Maxcon in The Shade,
(03 Jan 2017), https://feconslaw.wordpress.
com/2017/01/03/maxcon-in-the-shade/#_
ftnref2
2 Resolution Institute - SA Chapter CPD - Recent
case law affecting adjudication Security of
Payment (SOP) Acts in SA and other states,
9 February 2017 in Adelaide. Guest presenter
Martin Frayne SC.
3 Robert Fenwick Elliott, ‘10 Days in Utopia’
(Proceedings of the Institute of Arbitrators &
Mediators Australia, Glenelg, South Australia, 02
June 2007), 5.
4 Building and Construction Industry Security of Payment
Act 1999 (NSW); Building and Construction Industry
Security of Payment Act 2002 (Vic); Building and
Construction Industry Payments Act 2004 (Qld)
(later Building IndustryFairness (Security of Payment)
Act 2017 (Qld); Construction Contracts (Security of
Payments) Act 2004 (NT); Building and Construction
Industry (Security of Payment) Act 2009 (SA);
Building and Construction Industry Security of Payment
Act 2009 (ACT); Building and Construction Industry
Security of Payment Act 2009 (Tas).
5 Peter Butt, et al, LexisNexis – Concise Australian
Legal Dictionary, (LexisNexis Butterworths,
Chatswood NSW, 4th Ed, 2011), 34.
6 [2016] NSWCA 379.
7 [2017] SASCFC 2.
8 High Court of Australia, ‘Short particulars,
Probuild Constructions (Aust) Pty Ltd v Shade Systems
Pty Ltd & Anor (S145/2017), http://www.
hcourt.gov.au/assets/cases/08-Sydney/s145-
2017/Probuild_SP.pdf, 1.
9 Ibid.
10 High Court of Australia, ‘Short particulars,
Probuild Constructions (Aust) Pty Ltd v Shade Systems
Pty Ltd & Anor (S145/2017), http://www.
hcourt.gov.au/assets/cases/08-Sydney/s145-
2017/Probuild_SP.pdf, 1.
11 Ibid.
12 High Court of Australia, ‘Short particulars,
Maxcon Constructions Pty Ltd v Michael Christian