I refer to earlier postings regarding Kirk; N.K Collins and more recently Thiess in relation to jurisdictional error in the purview of judicial reviews and the supervisory role of the Supreme Court.

Allens Arthur Robinson

The Supreme Court of Queensland has held that an adjudicator’s failure to consider various spreadsheets which formed part of the Principal’s adjudication response, but which were not included in its payment schedule, amounted to jurisdictional error. The Court clarified that even if the spreadsheets were not included in the Principal’s payment schedule, section 26(2)(d) of the Building and Construction Industry Payments Act 2004 (Qld) still required the adjudicator to consider the spreadsheets in making his determination.

The Court also concluded that natural justice required the adjudicator to inform the parties that he was determining the matter without reference to the spreadsheets. The failure to give that notice denied the Principal the opportunity to advance any explanation for the omission.

Reproduced with permission of Allens Arthur Robinson and in accordance with their terms of use.

The Queensland Court of Appeal has followed the High Court and found that, despite the specific exclusion of the Building and Construction Industry Payments Act 2004 (Qld) from the operation of the Judicial Review Act 1991 (Qld), the legislature cannot exclude the power of a State Supreme Court to exercise its supervisory jurisdiction as to jurisdictional error in executive and judicial decision making. On the facts, it upheld the lower Court’s finding that the adjudicator had not made a decision beyond the scope of his legislative powers; that is, there had not been any jurisdictional error. [Case ref: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Northbuild Construction P/L v Central Interior Linings P/L & Ors [2011] QCA 22.]

Reproduced with permission of Allens Arthur Robinson and in accordance with their terms of use.