The Western Australian State Administrative Tribunal (SAT) has declined to review an adjudicator's determination made under section 31(2)(b) of the Construction Contracts Act 2004 (WA) (WA Act), despite comments from the adjudicator indicating that dismissal under section 31(2)(a) may have been more appropriate. In his reasons for decision, the adjudicator stated that the application had been made out of time, a trigger for dismissal under section 31(2)(a). Despite this, the adjudicator's express assumption of jurisdiction was enough for the SAT to categorize the decision as one made under section 31(2)(b) which it does not have power to review.
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Field Deployment Solutions (applicant) applied for adjudication of a payment dispute arising from a construction contract between it and SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd (respondents).
The applicant received an unfavourable decision and applied to the SAT for a review of the determination.
Relevant provisions of the Act
Section 31(2)(a) of the Act lists criteria that, when satisfied, require an appointed adjudicator to dismiss an adjudication application without making a determination.
Conversely, section 31(2)(b) of the Act provides that if the criteria in section 31(2)(a) are not met, the adjudicator must determine the dispute.
Section 46 of the Act enables a party aggrieved by a decision to apply to the SAT for review but only if the decision was made under section 31(2)(a).
The adjudicator found that the application for adjudication was not served within the time limits prescribed by the Act. Despite this being a ground on which an adjudicator can dismiss an application pursuant to section 31(2)(a)(ii), the adjudicator found that he did have jurisdiction to hear the dispute.
The adjudicator declined to dismiss the proceeding under section 31(2)(a) of the Act and proceeded to make a determination under section 31(2)(b).
Application for review
The applicant applied to the SAT for a review of the adjudicator's determination, seeking a ruling that the adjudicator's decision be set aside and that the SAT substitute its own decision on the merits of the case. It submitted that the adjudicator's 'purported finding' that the application was made out of time meant that the adjudicator had never assumed jurisdiction and a reviewable decision existed.
The respondent claimed that the adjudicator's comments regarding time limits did not divest him of the jurisdiction which he had assumed. It argued a decision was made under section 31(2)(b) of the Act and the SAT had no power to review it.
The SAT agreed with the respondent and held that the adjudicator had expressly assumed jurisdiction to determine the dispute and had done so pursuant to section 31(2)(b) of the Act. Sections 31(2)(a) and 31(2)(b) of the Act are mutually exclusive alternatives and thus if a determination was made under section 31(2)(b), there could not have been a decision made to dismiss the adjudication under section 31(2)(a).
A review of the merits of the adjudicator's determination was found to be outside the SAT's jurisdiction and the application was dismissed.