Abel Point Marina (Whitsundays) Pty Ltd v O'Brien and Sea-Slip Marinas (Aust) Pty Ltd

[2007] QSC 146

[2007] QSC 146

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MULLINS J

No BS51 of 2007

ACN 060 559 971 PTY LTD
(ACN 060 559 971)
(FORMERLY ABEL POINT MARINA (WHITSUNDAYS) PTY LTD)

Applicant

and

JOHN O'BRIEN

and

SEA-SLIP MARINAS (AUST) PTY LTD
(ACN 103 644 640)

First Respondent

Second Respondent

BRISBANE

..DATE 23/04/2007

ORDER

HER HONOUR:  On 19 April 2007, I published my reasons in this

matter.  On the hearing today, the applicant and the second

respondent made submissions on the terms of orders that should

be made as a result of the published reasons.

A draft order was provided by the applicant.  The parties are

agreed on orders 1, 3 and 4 as set out in the draft.

Order 1 provides for the decision of the first respondent to

be quashed.  Order 3 deals with the payment out to the

applicant of the moneys that had been paid into Court by the

applicant in accordance with the order of his Honour Justice

Byrne made on 19 January 2007.  Order 4 deals with costs.

Order 2 is controversial between the parties.  The applicant

seeks an injunction restraining the first respondent from

further considering the adjudication application dated 28

November 2006 or any further adjudication application made by

the second respondent in relation to the same subject matter

of the adjudication application dated 28 November 2006.

The rationale that the applicant puts forward for making the

injunction is that the applicant is concerned that the first

respondent may not be able to decide fairly any further

adjudication application (or the adjudication application

dated 28 November 2006 if it were to be remitted to the first

respondent) because the first respondent had been persuaded by

erroneous submissions that were made by the second respondent

and the first respondent decided the adjudication application

against the applicant on every point that was raised in the

application.

The first respondent has not participated in the proceeding

before me.  That was appropriate.  I am not prepared to make

orders against the first respondent personally.

Without an order remitting the matter to the first respondent

again, I am satisfied that setting aside the decision of the

first respondent dated 20 December 2006 does not, without

further order, give any further authority to the first

respondent to proceed on the adjudication application dated 28

November 2006.

In view of the fact that I have decided that the first respondent made a decision under an enactment that was amenable to part 3 of the Judicial Review Act 1991, the position would be different if I were to remit the subject matter of the decision that has been set aside to the first respondent.

The applicant's submissions deal with the difficulty in the

current adjudication application proceeding further in any

case in view of the fact that the second respondent did not

endeavour to deal with the issue of what extensions of time

should have been granted by the superintendent under clause

35(5)(b)(1) of the contract for the purpose of clause 36 of

the contract.  That appears to be made out on the material and

would leave the current adjudication application in the

position that it would not able to be resolved because of the

need for the parties to provide further material rather than

merely submissions on the matters that need to be addressed to

resolve the issue of costs of delay and disruption claimed

under clause 36 of the contract by the second respondent.

The desirable course for this matter to proceed in view of the

indication by Mr Scott, the solicitor for the second

respondent, that the second respondent wishes to pursue rights

under the Building and Construction Industry Payments Act 2004

is for a further adjudication application to be made by the

second respondent.

The second respondent does not wish to limit the authorised

nominating authority's discretion to appoint the first

respondent as the adjudicator for the purpose of any further

adjudication application.  Time is very important to the

second respondent as it wishes to access the funds which it

considers should have paid to it by now by the applicant under

the contract for costs of delay and disruption.

The second respondent considers that the first respondent

would be in the best position to determine an adjudication

application in the speediest way.  As the applicant points out

on this hearing, any further adjudication application will be

subject to the tight time frames that apply under the Building

and Construction Industry Payments Act 2004.

The applicant relies on the power the Court has under section

30 subsection (1) paragraph (d) of the Judicial Review Act to

make on order directing any of the parties to do or to refrain

from doing anything that the Court considers necessary to do

justice between the parties.

During the course of the hearing, I foreshadowed to the

parties that I was considering making an order in these terms:

the second respondent is directed to accompany any further

adjudication application which covers the issues that were the

subject of the adjudication application dated 28 November 2006

with a request that the authorised nominating authority not

appoint the first respondent as adjudicator and to provide the

authorised nominating authority with a copy of this order.

The applicant was prepared to accept a direction in those

terms.  The second respondent opposed it because of its desire

that any further adjudication application go before the first

respondent for the reasons that I have already mentioned.

The second respondent did not consider that the making of such

a direction was outside the power that the Court has under

section 30 subsection (1) paragraph (d) of the Judicial Review

Act.

In view of the history of this matter and the submissions that

were made today, I am concerned that if I do not make a

direction in terms of that which I have foreshadowed, the

further progress of an adjudication application that covers

the subject matters that were the subject of the decision

dated 20 December 2006 that has been set aside, will be

impeded by further proceedings between the parties to have the

first respondent disqualified as adjudicator for any further

adjudication application.

I consider that the breadth of the power conferred by the

Court under section 30 subsection (1) paragraph (d) of the

Judicial Review Act is such that it does not depend on a

finding made by me that the first respondent would be so

disqualified.  It is sufficient, if I am satisfied, that it is

desirable in the interests of justice that the further

adjudication application not be referred to the first

respondent.

The applicant referred me to the approach that is often taken

on judicial review applications where the matter has come from

a tribunal where there are other tribunal members who are able

to hear the remitted matter, that justice is, in general,

better seen to be done if a different member of the tribunal

is given the remitted matter.  Reference was made to Northern

NSW FM Pty Ltd v. Australian Broadcasting Tribunal (1990) 26

FCR 39 at 43.

Having regard to the terms of the reasons that were given by

the first respondent, and in the circumstances of the history

of disputation between the applicant and the second

respondent, I consider that it is in the interests of justice

to give the direction that I have foreshadowed in relation to

the matter that any further adjudication application not be

given to the first respondent by the authorised nominating

authority.

I, therefore, make an order in terms of the amended draft,

initialled by me and placed with the file.

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