Examining the approaches to diminish judicial intervention in statutory adjudication in Australia

In Australia, statutory construction adjudication is a fast payment dispute resolution process designed to keep the cash flowing down the hierarchical contractual chain in construction projects. Its rapid, highly regulatory and temporarily binding nature have led to it being often described as a ‘quick and dirty’ process that delivers ‘rough and ready’ justice. Adjudicators often have to grapple with complex legal issues related to jurisdictional facts and interpretation of contract provisions, though the majority of them are not legally trained. This has often led to a poor quality of adjudication outcome for large and complex payment claims which has, in turn, led to a mounting dissatisfaction due to the many judicial challenges to adjudicators’ determinations seen in recent years. The evolving tension between the object of the security of payment legislation and excessive involvement of the courts has often been the subject of comment by the judiciary. This paper aims to examine the legislative and judicial approaches to support the object of the security of payment legislation to ease cash flow. The paper adopts a desktop study approach whereby evidence is gathered from three primary sources – judicial decisions, academic publications and governmental reports. The paper concludes that there is a need to adopt other measures which can provide more convenient relief to aggrieved parties to an adjudication process, such that the adjudication process is kept away from the courts as far as is possible. Specifically, it is proposed that a well-designed expanded legislative review scheme of allegedly flawed adjudication, based on that provided in the Western Australian legislation, might stand as a promising remedy to eliminate the evolving tension.

Taking statutory adjudication to the next level: a proposal for review mechanism of erroneous determinations

Statutory adjudication was introduced in the security of payment legislation to quickly and fairly resolve payment disputes in the construction industry. One of the interesting features in some legislation is the availability of an express limited right of aggrieved parties to apply for review against erroneous adjudication decisions. In Singapore, the legislation has no equivalent elsewhere in that it provides for a full review mechanism of erroneous determinations considering the fact that adjudicators often have to grapple with complex issues as sheer volume of documents within a very tight timeframe. This paper discusses the various review mechanisms of erroneous adjudication determinations then asks the question as to whether an appropriately devised legislative review mechanism on the merits, should be an essential characteristic of any effective statutory adjudication scheme. The paper concludes by making the case that an appropriately designed review mechanism as proposed in the paper could be the most pragmatic and effective measure to improve the quality of adjudication outcome and increase the disputants' confidence in statutory adjudication. This paper is based upon a paper by the author which received a High Commendation in the Student Division of the Society of Construction Law Australia Brooking Prize for 2016.

Towards diminishing judicial intervention in statutory adjudication: a pragmatic proposal

Statutory adjudication was introduced into the Security of Payment (SOP) legislation as a fast-track payment dispute resolution process aiming to achieve the object of the legislation to facilitate cash flow within the construction contractual chain. As such, adjudication determinations were usually released and enforced on a "pay now, argue later" 1 basis in order to protect a vulnerable class of smaller businesses within the building and construction industry. The SOP legislation was extremely successful in attaining the stated object in the context of small adjudicated payment claims where both parties used to comply with the adjudication determination.

Investigating the factors influencing the quality of adjudication of complex payment disputes in Australia

Statutory adjudication has been enacted throughout Australia on a state-by-state basis. The original enacting legislation may be broadly divided into two models which have become known as the East Coast and West Coast models. The East Coast model adjudication scheme – which is operational in NSW, Victoria, Queensland, Tasmania, ACT and South Australia – has in recent times come under much criticism for failing to facilitate determinations of sufficient quality with respect to large and/or complex payment claims. By carrying out a thorough desktop study approach whereby evidence is garnered from three primary sources – government commissioned consultation papers, academic publications and judicial decisions – this paper reviews this criticism and therefrom distils the key factors influencing the quality of adjudication of large and/or complex claims in Australia.

A proposed roadmap to optimise the adjudication of complex payment disputes in Australia

In Australia, statutory construction adjudication has recently received a lot of criticism due to the increasing amount of determinations that have been quashed upon judicial review, and anecdotal evidence from some quarters showing dissatisfaction with the quality of adjudication decisions. Such criticism is particularly aimed at adjudications of large and technically and legally complex payment disputes, where adjudicators are under pressure to consider substantial volumes of submissions in very tight timeframes. More specifically, criticisms have been directed at, inter alia, adjudicator’s regulations, procedural fairness, jurisdictional powers and finality of decisions. This paper reviews the measures to improve the quality of adjudications of complex payment disputes then proposes a roadmap by selecting the Qld model as a benchmark but suggesting further improvements identified and explained via specific steps or pit stops. The pit stops include criteria for timeframes of complex claims, appointment, regulation and powers of adjudicators and a review system on the merits to control the quality of adjudication decisions replicating the Singapore model. The findings remain as blunt instruments and deemed as hypotheses to inform subsequent empirical research which the authors are currently undertaking to further investigate, strengthen and validate the findings of this study in order to propose a reliable and useful guide to any parliament seeking to optimise its statutory adjudication to effectively deal with complex payment disputes.

The big picture: causes of compromised outcome of complex statutory adjudications in Australia

Statutory adjudication has been enacted progressively throughout Australia on a stat-by-state basis over a period of 10 years. The legislation with more emphasis on the Eastern States has come under much criticism recently for failing to facilitate decisions of sufficient quality with respect to complex adjudications. This paper reviews this criticism and discusses the key causes of the unsatisfactory outcome of complex adjudications in Australia. The identified causes are namely flawed appointment, relaxed eligibility and regulation, intimidation of adjudicators, fuzzy jurisdictional boundaries, abbreviated timeframes, limited inquisitorial powers and want of review mechanism. The implication of the research is a better understanding of the nature of the quality of complex adjudication outcome and the relevant worthwhile reform opportunities in Australia, especially with regard to introducing legislative review mechanisms.

How should adjudicators deal with expert reports in Australia?

Since its introduction in to Australia fifteen years ago, statutory adjudication has become increasingly used by parties seeking to recover payment claims which are large in amount and technically and legally complex in nature. This has inevitably led to the formalisation of the adjudication process with parties often submitting, amongst other documents, expert witness reports to support their arguments. The increase in documentation that an adjudicator must consider poses a threat to the integrity of the adjudicator’s determination. This paper adopts a ‘black letter’ approach to distil the law concerning the way in which adjudicators should deal with expert reports, and reveals there are many pitfalls that an adjudicator should be aware of. Moving forward, this paper seeks to inform the PhD study of the lead author which eventually aims to formulate a roadmap with recommendations that may be applied to help optimise the various Australian adjudication schemes for the determination of large and/or complex payment claims.

Australian security of payment legislation: impact of inconsistent case law

In Australia, a supreme court has a supervisory role over the statutory adjudication process that has been established within the security of payment legislation. In this role, the courts have quashed many adjudication determinations on the grounds of jurisdictional error in recent years. This is a problem as the courts’ involvement in statutory adjudication is contrary to the object of the legislation. When reviewing adjudication determinations, the courts have adopted different approaches with respect to determining the role of adjudicators and the essential jurisdictional facts that must exist in order for an adjudicator to have jurisdiction to hear a referred disputed matter. This diversification of judicial interpretation with respect to jurisdictional error is confusing, not only to construction professionals, but also to many lawyers. Via a desktop study– where the evidence is mainly garnered from case law, governmental reports and commentaries – this paper reviews the legal complexities involved in diagnosing jurisdictional errors. In doing so, the paper aims to answer the question as to why the adjudication process has become bogged down in the quagmire of judicial review. The paper concludes that the evolving inconsistency of case law in relation to statutory adjudication is a crucial factor contributing to the erosion of the object of the security of payment legislation in Australia. Moving forward, the paper argues that establishing a legislative review mechanism of jurisdictional challenges may be sufficient to address this problem.

The application of building information modelling in a construction project in China

Previous studies have proved the application of Building InformationModelling (BIM) can lead to greater efficiencies. Slowly adopting newtechnologies and limited technological innovation are criticised for theconstruction industry. In this paper, we present research that examinesthe practices of BIM technologies for the clash detection and coordination among building structure, equipment and pipelines, quantity statistics and construction simulation in a construction project in China. The BIM application significantly promotes the abilities to achieve construction schedule, quality, budget, and scope objectives in the project. The technological capabilities of BIM, the illegal issues of BIM outputs and developing cooperative project management culture are needed in order to promote BIM application in the construction industry.

Corporations Act 2001 s 459G : application to set aside statutory demand

The application before the court in Millerview Constructions Pty Ltd v Palmer Plumbing Pty Ltd [2008] QSC 005 raised a significant question regarding the appropriate construction of s 459G of the Corporations Act 2001 (Cth) (the Act). The decision emphasises the importance of ensuring that any application to set aside a statutory demand must be served in a timely way on the creditor at the creditor’s address for service as stated in the statutory demand, or in strict compliance with another manner authorised by the Act.

Application to set aside statutory demand

In C & E Pty Ltd v Corrigan [2006] QCA 47, the Queensland Court of Appeal considered whether r103 of the Uniform Civil Procedure Rules applied to the service of an application to set aside a statutory demand under s459G of the Corporations Act 2001 (Cth). The decision provides analysis and clarification of an issue that has clearly been one of some uncertainty.

A way through the dark and thorny thickets? The adjudication of ‘serious injury’ under the narrative tests in the Transport Accident Act 1986 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

The so-called narrative test provides the means by which injured persons who satisfy the statutory and common law definition of serious injury may bring proceedings for common law damages under s 93 of the Transport Accident Act 1986 (Vic) and s 134AB of the Accident Compensation Act 1985 (Vic) (or, for injuries after 1 July 2014, under ss 324-347 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)). These are among the most litigated provisions in Australia. This article outlines the legislative and political background to these provisions, the provisions themselves, and an account of the statutory and common law requirements needed to satisfy the provisions.

Statutory protections from forfeiture of a leasehold estate following Apriaden Pty Ltd v Seacrest Pty Ltd

In Apriaden Pty Ltd v Seacrest Pty Ltd the Victorian Court of Appeal decided that termination of a lease under common law contractual principles following repudiation is an alternative to reliance upon an express forfeiture provision in the lease and that it is outside the sphere of statutory protections given against the enforcing of a forfeiture. The balance of authority supports the first aspect of the decision. This article focuses on the second aspect of it, which is a significant development in the law of leases. The article considers the implications of this decision for essential terms of clauses in leases, argues that common law termination for breach of essential terms should be subject to compliance with these statutory requirements and, as an alternative, suggests a way forward through appropriate law reform, considering whether the recent Victorian reform goes far enough.

Debate on statutory control of the surveying profession in Queensland : 1907 to 1975

This article was written in 1997. After a 2009 review the content was left mostly unchanged - apart from this re-written abstract, restructured headings and a table of contents. The article deals directly with professional registration of surveyors; but it also relates to government procurement of professional services. The issues include public service and professional ethics; setting of professional fees; quality assurance; official corruption; and professional recruitment, education and training. Debate on the Land Surveyors Act 1908 (Qld) and its amendments to 1916 occurred at a time when industrial unrest of the 1890s and common market principles of the new Commonwealth were fresh in peoples’ minds. Industrial issues led to a constitutional crisis in the Queensland’s then bicameral legislature and frustrated a first attempt to pass a Surveyors Bill in 1907. The Bill was re-introduced in 1908 after fresh elections and Kidston’s return as state premier. Co-ordinated immigration and land settlement polices of the colonies were discontinued when the Commonwealth gained power over immigration in 1901. Concerns shifted to protecting jobs from foreign competition. Debate on 1974 amendments to the Act reflected concerns about skill shortages and professional accreditation. However, in times of economic downturn, a so-called ‘chronic shortage of surveyors’ could rapidly degenerate into oversupply and unemployment. Theorists championed a naïve ‘capture theory’ where the professions captured governments to create legislative barriers to entry to the professions. Supposedly, this allowed rent-seeking and monopoly profits through lack of competition. However, historical evidence suggests that governments have been capable of capturing and exploiting surveyors. More enlightened institutional arrangements are needed if the community is to receive benefits commensurate with sizable co-investments of public and private resources in developing human capital.