Judicial review – adjudication – Construction Contracts Act 2004 (WA) – nature of adjudicator's power – inferior court or administrative tribunal – jurisdictional facts
The decision of the Supreme Court of Western Australia provides:
- the test for jurisdictional error in respect to determinations made under the Construction Contracts Act 2004 (WA) (Act); and
- key guidance on the operation of provisions under the Act and the Construction Contracts Regulations 2004 (WA).
WQube Port of Dampier Pty Ltd (WQube) applied for judicial review of two determinations made by an adjudicator pursuant to section 31 of the Act on a number of grounds. Although the two determinations in question were made by separate adjudicators, WQube claimed that both adjudicators made the same errors and that the same issues arose in both applications. The court accordingly dealt with the applications together.
Marine & Civil Pty Ltd (Marine & Civil), being the other party to the construction contracts the subject of the applications, opposed the applications brought by WQube.
Marine & Civil alleged in its original application for adjudication that:
- it submitted a payment claim to the 'Superintendent's' appointed representative and agent who, in turn, issued a payment recommendation to both WQube and Marine & Civil recommending full payment of the payment claim. Marine & Civil considered that this payment recommendation constituted a progress certificate under the provisions of the contract; and
- as a consequence, Marine & Civil considered that payment was due within seven days from the issue of the payment recommendation. However, two days after what it considered to be the date for payment it received from WQube:
- notification that a new superintendent had been appointed under the contract;
- notification that the previous superintendent's representative had not been appointed as the superintendent's representative;
- notification that the payment recommendations issued by the previous superintendent's representative were not progress certificates; and
- a payment certificate stating in respect to the payment claim that no monies were payable to Marine & Civil.
The court held, amongst other things, that:
- the test for jurisdictional error in respect to a determination under section 31 of the Act is that applicable to an inferior court rather than a tribunal;
- adjudicators are authorised under the Act to determine questions of law authoritatively;
- it is possible for an adjudicator to infer that an individual has been appointed as the superintendent's representative in circumstances where the individual has undertaken functions of the role and their actions have been relied upon by the party challenging the appointment, regardless of whether express notice of the appointment has been provided;
- the fact that an adjudicator does not specifically deal with evidence in their determination does not automatically lead to the conclusion that the adjudicator acted in absence of good faith; and
- a person making an application for adjudication will not be held to have constructive knowledge of the contact information of a person merely because the relevant information is available from a public source. Accordingly, it is acceptable for an adjudicator to infer that contact information is not known to an applicant where such information is missing from an application.