Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd  VSC 233
Section 28R(5)(a)(iii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act) (Relevant Section) is a privative provision which operates to deny relief where:
- a party seeks to set aside a judgment entered to recover a debt payable under an adjudication certificate issued under the SOP Act; and
- there is an error on the face of the record,
but will not bar relief for a jurisdictional error. The ability to consider jurisdictional errors is an inherent supervisory power of the State Supreme Court as a Chapter III Constitutional Court.
Asta Developments (Aust) Pty Ltd (defendant) obtained an adjudication determination on 18 November 2014 against Amasya Enterprises Pty Ltd (plaintiff). Following non-payment of the adjudicated amount an adjudication certificate was issued. The defendant subsequently commenced proceedings to enter judgment for a debt in the amount of the adjudication certificate pursuant to section 28R of the SOP Act.
The plaintiff issued proceedings seeking judicial review of the adjudication determination on the grounds of jurisdictional error of the adjudicator (namely, an alleged failure to afford procedural fairness and absence of a jurisdictional fact). The defendant relied on the Relevant Section as a bar to the plaintiff's claims. The Relevant Section provides as follows:
(5) If a person commences proceedings to have the judgment set aside, that person—
(a) subject to subsection (6), is not, in those proceedings, entitled— ...
(iii) to challenge an adjudication determination or a review determination; ...
His Honour Justice Vickery, as a preliminary matter, sought to address whether the Relevant Section operated to bar the plaintiff's ability to seek judicial review of the adjudication determination.
His Honour determined that it was open to the plaintiff to seek judicial review of the adjudication determination notwithstanding the Relevant Section.
His Honour held that:
- Judgment had already been entered pursuant to section 28R of the SOP Act and therefore the plaintiff's application rested on the court's jurisdiction to set aside the judgment, thus enlivening the Relevant Section.
- In an appropriate case, given the nature of an adjudication determination and the operation of the SOP Act, remedies of certiorari and declaration are available to parties where a determination is made in error (either a jurisdictional error of law or an error on the face of the record).
- The Relevant Section is a privative provision (in contrast with similar provisions under the NSW security of payment legislation) and when assessed against the requirements of section 85 of the Constitution Act 1975 (Vic) is valid. Procedurally, the Relevant Section will only operate after a judgment has been entered under section 28R and only in respect of a proceeding to have that judgment set aside.
- However, privative provisions only operate to the extent that they do not limit a State Supreme Court's inherent jurisdiction as a Chapter III Constitutional Court. As articulated in the High Court case of Kirk v Industrial Court of NSW (2010) 239 CLR 531 at 581: 'Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond state legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power'.
- The court therefore has the power to grant relief in the nature of certiorari or a declaration where a party can establish a jurisdictional error in the adjudication determination.