The decision of the WA Supreme Court in Sandvik Mining and Construction Australia Pty Ltd v Fisher [2019] WASC 352 reinforces the difficulties in obtaining an interlocutory injunction.

Sandvik Mining and Construction failed to obtain an interlocutory injunction restraining Civmec Construction and Engineering from seeking the enforcement of a disputed adjudication determination under the Construction Contracts Act 2004 (WA) while pursuing judicial review of the adjudication determination.

Sandvik asserted that the determination was invalid because it was the second adjudication and determination in respect of the same progress claim. Civmec did not dispute that both adjudications related to the same progress claim but countered that the first adjudication determination was only in respect some disputed items, while the second was in respect of the other disputed items.

Justice Archer was not required to make final findings on the merits of Sandvik's broader arguments, and only had to determine whether to grant an interlocutory injunction by considering the following elements:

  • whether Sandvik had demonstrated a prima facie case.  This does not require that its case be more likely than not to succeed at final judicial review.  Rather, it must show a sufficient likelihood of success to justify the preservation of the status quo pending the final judicial review; and
  • whether the balance of convenience favours granting an injunction.  This entails comparing the injury Sandvik would suffer if an injunction was not granted but it succeeded in the final judicial review, with the injury Civmec would suffer if it was restrained in enforcing the determination but was ultimately successful.

While noting that Sandvik's broader case was not particularly strong, Archer J concluded that it had demonstrated a prima facie case that the second adjudication determination, based upon the same progress claim, was void.

However, Sandvik failed to establish that the balance of convenience weighed in favour of granting an injunction.  Justice Archer based this conclusion upon the following considerations:

  • it would not be unjust, oppressive or an abuse of process to allow Civmec to enforce the adjudication determination, because Justice Archer's preliminary view was that the Act intended to allow the enforcement of determinations unless there was a contrary court order.  That is, an invalid adjudication determination is not automatically void, but must be declared as such;
  • enforcement of the determination would not render the judicial review process nugatory. If Sandvik were ultimately successful, it could seek court orders requiring repayment of funds plus interest;
  • on the evidence, there was little risk that Civmec could not repay the money should the adjudication determination subsequently be found to be invalid;
  • the policy of the Act is to "keep money flowing" in the construction industry via a "pay now, argue later system". The granting on an injunction would undermine this policy; and
  • delayed payment would cause real prejudice to Civmec.

Consequently, Justice Archer declined to grant an injunction.  However, the judgment left open the possibility of a different outcome in different circumstances, particularly where there is a stronger prima facie case that an adjudication determination is invalid and there is evidence of a real risk that the claimant would not be able to repay the disputed funds.