Justice McDougall restates the dos and don’ts of appealing an adjudication in "yet another dispute over a determination of an adjudicator".

In Southern Cross Engineering v Steve Magill Earthmoving [2018] NSWSC 1027, Southern Cross relied upon SSC Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631 (in which Justice Vickery sets out in detail how an adjudicator should assess a payment claim) as the basis for submitting that the adjudicator had erred in his reasons.

Justice McDougall accepted that the comments made by Justice Vickery in SSC applied to the work that an adjudicator must do to assess a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (NSW SOP Act), but he rejected that "the requirements identified by Vickery J must be applied serially and mechanically in every case." Justice McDougall found instead that the assessment of an adjudicator's determination required "a consideration of the adjudicator's reasons in their context" which included not just the content of the dispute but the inherent nature of adjudication proceedings themselves, such as the intense time pressures imposed upon an adjudicator to make a decision and the often vast quantity of material that an adjudicator is required to consider. He went on to add, in relation to the reasonableness of an adjudicator's determination, that the court must also take into consideration that adjudicators are not generally lawyers and, in accordance with the objects of the legislation, their determinations are only intended to be an interim decision.

Justice McDougall also warned against the courts embarking upon an inquiry into the merits of an adjudicator's decision as part of any consideration of reasonableness, noting, importantly, "that mere error of law, not resulting in or associated with jurisdictional error, does not entitle the court to intervene."

Ultimately Justice McDougall concluded that the adjudicator's decision in relation to the particular issue under challenge was probably incorrect, but, looking at the adjudicator's approach in context, he was "far from persuaded that it was unreasonable to the extent that it must be taken to invalidate his determination." Southern Cross's appeal was dismissed.