Eleventh Trail filed an application to stay the judgment entered pursuant to the registration of the adjudicator’s certificate. It later became clear their argument was that the adjudicator’s decision was void because the payment claim in dispute did not satisfy s.17(2) of the Building and Construction Industry Payments Act 2004 (Qld), namely it did not “identify the construction work or related goods and services to which the progress payment relates.”
I refer to my earlier posting in respect of the general nature of the Act and how the certification operates.
His Honour J.M. Robertson DCJ dismissed the application and concluded that the scheme of the Act was to exclude judicial review provided the pre-conditions (below) were satisfied. The aggrieved party had in any event available to them the right to preserve their interest in the amount paid pursuant to s.100 of the Act.
What then are the conditions laid down for the existence of an adjudicator’s determination? The basic and essential requirements appear to include the following:
- The existence of a construction contract between the claimant and the respondent, to which the Act applies (ss.7 and 8).
- The service by the claimant on the respondent of a payment claim (s.13).
- The making of an adjudication application by the claimant to an authorised nominating authority (s.17).
- The reference of the application to an eligible adjudicator, who accepts the application (ss.18 and 19).
- The determination by the adjudicator of this application (ss.19(2) and 21(5)), by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable (ss.22(1)) and the issue of a determination in writing (ss.22(3)(a)).
The relevant sections contain more detailed requirements: for example, s.13(2) as to the content of payment claims… A question arises whether any non-compliance with any of these requirements has the effect that a purported determination is void, that is, is not in truth an adjudicator’s determination. That question has been approached in the first instance decision by asking whether an error by the adjudicator in determining whether any of these requirements is satisfied is a jurisdictional or non-jurisdictional error. I think that approach has tended to cast the net too widely; and I think it is preferable to ask whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator’s determination.
In my opinion, the reasons given above for excluding judicial review on the basis of non-jurisdictional error of law justify the conclusion that the legislature did not intend that exact compliance with all the more detailed requirements was essential to the existence of a determination: cf. Project Blue Sky Inc. v. Australian Broadcasting Authority  HCA 28; (1998) 194 CLR 355 at 390-91. What was intended to be essential was compliance with the basic requirements (and those set out above may not be exhaustive), a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and reasonably capable of reference to this power (cf. R v. Hickman; Ex Parte Fox and Clinton  HCA 53; (1945)  HCA 53; 70 CLR 598), and no substantial denial of the measure of natural justice that the Act requires to be given. If the basic requirements are not complied with, or if a purported determination is not such a bona fide attempt, or if there is a substantial denial of this measure of natural justice, then in my opinion a purported determination will be void and not merely voidable, because there will then not, in my opinion, be satisfaction of requirements that the legislature has indicated as essential to the existence of a determination. If a question is raised before an adjudicator as to whether more detailed requirements have been exactly complied with, a failure to address that question could indicate that there was not a bona fide attempt to exercise the power; but if the question is addressed, then the determination will not be made void simply because of an erroneous decision that they were complied with or as to the consequences of non-compliance (my emphasis).”
Brisbane Barrister – David Cormack