The Western Australian Supreme Court decision of Re David Scott Ellis; Ex Parte Triple M Mechanical Services Pty Ltd (No 2) [2013] WASC 161 serves as a reminder of the importance of adhering to time limits prescribed by the Construction Contracts Act 2004 (WA) (the WA Act).

This decision has important implications for participants to adjudication, as it confirms the strict timeframes for serving a response.

Background

In March 2012 Triple M Mechanical Services Pty Ltd (Triple M) and United Industries (WA) Pty Ltd (United Industries) entered into a contract under which United Industries agreed to carry out construction work for the preparation of steelwork for air conditioning plant and equipment. A payment dispute arose within the meaning of s 6 of the WA Act and on 17 January 2013 United Industries made an application for adjudication of the dispute under the WA Act.

Under s 27 of the WA Act, Triple M was then required to serve on the adjudicator its response to the application for adjudication and all information, documentation and submissions it relied upon within 14 days after service on it of the application for adjudication, namely 31 January 2013. At the outset of the adjudication process, the parties received notification from the adjudicator that he was content for the parties to effect service of any documents upon him by email.

On 31 January 2013, Triple M emailed the adjudicator its submissions and attachments.

It was not disputed that Triple M served its submissions upon the adjudicator within time. However, an issue arose between the parties as to whether Triple M served the attachments to its submissions on 31 January 2013. In summary:

  • Triple M sent 44 emails to the adjudicator and United Industries which included the attachments to its submissions as ‘.rar’ files;
  • the adjudicator advised Triple M that he was unable to open the ‘.rar’ files;
  • Triple M then sent to the adjudicator and to United Industries further emails which attached, as ‘Yousendit’ files, copies of the attachments that had been attached to its earlier emails as ‘.rar’ files; and
  • on the evening of 31 January 2013, the adjudicator requested Triple M to provide him with hard copies of the attachments which Triple M did by early afternoon on 1 February 2013.

As part of his determination in favour of United Industries, the adjudicator found that:

  • the attachments had not been served on him within the prescribed time; and
  • accordingly, he could not have regard to the attachments in his determination.

Triple M applied to the Supreme Court seeking to quash the adjudicator’s decision on various grounds, including that the adjudicator’s decision not to have regard to the attachments amounted to a jurisdictional error.

Decision

Can an adjudicator have regard to a response served out of time?

EM Heenan J was of the view that s 27(1) of the WA Act has the effect that only a response served upon an adjudicator within the 14-day time limit need be considered by the adjudicator when making his determination.

In reaching this conclusion, His Honour was assisted by recent decisions of the Western Australian Supreme Court which emphasised the essentiality of other time limits prescribed by the WA Act, including the decision that an adjudication application made outside the 28-day limit prescribed by s 26 of the WA Act was ineffective.1 In summary, His Honour considered that the authorities provided a convincing basis for treating compliance with time limits set by the WA Act, where there is no provision for an extension of time, as being essential.

However, His Honour agreed with Le Miere J in Re Graham Anstee Brook; Ex Parte Karara Mining Ltd (No 2) [2013] WASC 59, that there may be occasions in which an adjudicator may decide that he or she ought to take into account a response received out of time, if that could be done without jeopardising the adjudicator’s timing obligations under the WA Act. His Honour stated that the:

  • decision by an adjudicator to admit, in particular circumstances, a late response or part of a late response does not mean that the adjudicator is obliged to do this in any particular instance; and
  • failure of an adjudicator to admit a late response or part of a late response, does not constitute an error of law.

In reaching the above view, His Honour referred to the fact that:

  • the requirements for procedural fairness in this area are fixed by the WA Act; and
  • the WA Act has an emphasis on informality, coupled with the acknowledgment that a determination by an adjudicator while having legal effect in terms of being enforceable with leave of the court, still remains provisional and permits other proceedings to be commenced before a court, arbitrator or other body.

Were the attachments to Triple M’s response served late?

In considering whether the attachments were served late, His Honour turned to the Electronic Transactions Act 2011 (WA). He noted that SS 9 and 14 of the Electronic Transactions Act refer to the requirement that an electronic communication be ‘readily accessible’ and ‘capable of being retrieved’ by the recipient of the information.

Based on these provisions, Triple M argued that the time of receipt of the attachments sent as ‘.rar’ and ‘Yousendit’ files was not when the information was actually received by the adjudicator but when the information was capable of being retrieved. In contrast, United Industries submitted, as was found by the adjudicator, that it was not reasonable to expect that the attachments would be readily accessible when neither the adjudicator nor United Industries could access the information.

Triple M supported its submission to the Court with evidence that there were reliable, commercially available applications readily accessible and free of charge which would have allowed the adjudicator to download the information. His Honour stated that he had considerable misgivings in relation to:

  • the adjudicator’s decision that the attachments to Triple M’s submissions were served late; and
  • whether or not there was sufficient evidence to support the adjudicator’s decision that the attachments were not accessible.

However, His Honour explained that even if he were to find that the adjudicator’s decision was wrong, the question ultimately was whether or not the adjudicator’s decision amounted to a jurisdictional error or a denial of procedural fairness so as to render the determination capable of review by the Court.

Did the adjudicator’s decision to disregard the attachments amount to a jurisdictional error?

In summary, His Honour held that:

  • it was essentially a question of fact as to whether or not the attachments were filed in time;
  • this decision was one which needed to be made by the adjudicator in order to discharge his obligation to make a determination and was, therefore, one within his jurisdiction; and
  • section 32(1) of the WA Act, read in its entirety, has the effect that even if the adjudicator wrongly decided that a response was filed late, it would not amount to jurisdictional error or entitle a party to have the adjudication set aside.

Conclusion

Despite having ‘considerable misgivings’ as to whether the adjudicator’s conclusion on the question of whether or not the response was filed in time was correct, His Honour held that there had been no jurisdictional error. He also found that Triple M’s other grounds for review had not been made out and therefore refused Triple M’s application to have the determination set aside.

What this decision means for you

If you are a party to an adjudication application under the WA Act you must ensure you comply with the prescribed timing periods.

All time limits prescribed by the WA Act, which do not allow for an extension of time, should be regarded as essential.

If providing documents to an adjudicator in an electronic format, you must ensure such documents are readily accessible. It may not be wise to assume programs outside of the Microsoft Office suite of products are widely used, and it would be prudent to clarify with the adjudicator in advance which programs he or she has access to for the purposes of reading or downloading electronic files.