Certa Civil Works Pty Ltd v Ghosh
[2017] WASC 327
•15 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CERTA CIVIL WORKS PTY LTD -v- GHOSH [2017] WASC 327
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 15 NOVEMBER 2017
FILE NO/S: CIV 1616 of 2017
CIV 1617 of 2017
CIV 1618 of 2017
CIV 1619 of 2017
BETWEEN: CERTA CIVIL WORKS PTY LTD
Applicant
AND
DULAL GHOSH
RespondentGLYNN LOGUE
Other Party
Catchwords:
Judicial review - Construction Contracts Act - Challenge to adjudicator's decisions - Alleged jurisdictional error - Discretionary considerations for certiorari - Application refused with indemnity costs
Legislation:
Construction Contracts Act 2004 (WA)
Result:
Certiorari refused
Category: B
Representation:
Counsel:
Applicant: No appearance
Respondent: No appearance
Other Party : No appearance
Solicitors:
Applicant: Vogt Graham Lawyers
Respondent: No appearance
Other Party : Squire Patton Boggs
Case(s) referred to in judgment(s):
Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039
Delmere Holdings Pty Ltd v Green [2015] WASC 148
Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399
R v Aston University Senate; Ex parte Roffey [1969] 2 All ER 964; [1969] 2 QB 538
R v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15
Re Anstee‑Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; (2011) 42 WAR 35
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
Re Wilkie, Ex parte Johnston (1981) 55 ALJR 191
Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 39
KENNETH MARTIN J: I am dealing with four judicial review applications brought against four very similar decisions reached by an adjudicator under the Construction Contracts Act 2004 (WA) (CC Act). The underlying amounts at issue are small. By the consent of the parties the applications are being dealt with entirely on the papers.
Background
The defendant, Mr Ghosh, who correctly does not participate on these review applications, was appointed as the 'adjudicator' under the CC Act to determine four applications brought under that Act by Mr Glynn Logue (the Other Party in these proceedings) (Mr Logue).
Mr Logue was seeking to compel the present applicant, Certa Civil Works Pty Ltd, (Certa) to pay to him amounts that he claimed were due to him under four tax invoices he had earlier issued to Certa, claiming for his professional services.
The respective tax invoices of Mr Logue were for the small sums totalling together only $42,845.43 (GST inclusive). That aggregate amount claimed under Mr Logue's four respective tax invoices was made up as:
•Invoice No 1 ‑ 13 September 2016 for $9,062.33
•Invoice No 2 ‑ 29 September 2016 for $9,067.72
•Invoice No 3 ‑ 4 November 2016 for $11,784.45
•Invoice No 4 ‑ 30 November 2016 for $12,930.93
None of Mr Logue's four tax invoices to Certa were met.
On 21 February 2017, Mr Logue issued four separate applications against Certa under the CC Act. He was seeking adjudications upon what he contended were four different 'payment disputes' with Certa. A separate payment dispute was asserted in respect of each of the four unpaid invoices.
Certa had certainly received Mr Logue's four tax invoices. It did not take issue against any of them. Certa did not challenge any of the invoice amounts or assert the non‑receipt of the benefit of services provided by Mr Logue, which were the subject of the invoices.
Nor did Certa complain about the quality of Mr Logue's professional services under any of the four invoices received. His four invoices were simply not paid.
Subsequent to each of the invoices being issued, (they were payable within 28 days) Mr Logue sent reminders at 16 October 2016 and on 4 November 2016 to Certa. Still no payment was forthcoming.
On 20 February 2017, Certa, by its general manager, Bradley Hutchinson (Mr Hutchinson), sent Mr Logue an email (see page 99 of the affidavit of Bradley Wayne Hutchinson, sworn 25 May 2017). The email said (in part):
[N]one of the invoice are indispute [sic].
The next day Mr Logue submitted his separate applications under the CC Act to the Institute of Arbitrators and Mediators Australia (IAMA) seeking adjudications under the CC Act in respect of his four separate payment disputes with Certa.
Mr Logue consented to an appointed adjudicator rendering simultaneous adjudications in respect of all four invoices.
Certa, by its email of 23 February, also consented to simultaneous adjudications of the four invoice non‑payment disputes with Mr Logue.
It came to pass that Mr Ghosh was appointed as adjudicator by IAMA on 23 February 2017 upon all four applications of Mr Logue.
Procedural history
Mr Logue's four applications had been accompanied by supporting documentation to meet with the lodging party's requirements under the CC Act.
On 24 February 2017, Mr Ghosh wrote to Mr Logue and to Certa (as respondent). Mr Ghosh advised them of the documentation he had received, and of time limits applicable to the adjudication process on which he was now embarking pursuant to s 27 and s 32 of the CC Act (see annexure BWH 2 of Mr Hutchinson's affidavit sworn 25 May 2017). Mr Ghosh also advised of some other administrative matters, including his fees for determining the four applications.
Certa was due to respond to Mr Logue's applications for adjudication, pursuant to the terms of s 27 of the CC Act, by ten (10) business days following the commencement of the applications. Accordingly, Certa's responsive materials were due by 8 March 2017.
Certa, however, submitted nothing at all to Mr Ghosh concerning the merits or demerits of disputes with Mr Logue. Nor did Certa challenge Mr Ghosh's jurisdiction to perform the functions of an adjudicator under the CC Act in respect of the four applications made by Mr Logue.
Despite the absence of any adjudication response from Certa, Mr Ghosh held that he could render determinations in each instance: see s 32(5) of the CC Act.
By his determinations of 21 March 2017, Mr Ghosh concluded he was satisfied upon each of the four applications as to the:
(a)existence of an (oral) construction contract between Certa and Mr Logue;
(b)existence of a payment claim by Mr Logue;
(c)existence of a payment dispute; and
(d)payment dispute between Mr Logue and Certa arising under the construction contract subsisting between them.
The four issues above were essentially foundational jurisdictional prerequisites that had to be met in order for Mr Ghosh to proceed and to render determinations as adjudicator on each payment dispute under the CC Act: see Delmere Holdings Pty Ltd v Green [2015] WASC 148, [49] and Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399 [97], [198].
Four determinations issued by Mr Ghosh on 21 March 2017, in respect of each of the four applications, were all in favour of Mr Logue.
Outcomes upholding Mr Logue's four payment claims against Certa were hardly surprising, given Certa's manifest lack of any substantive participation, let alone affirmative opposition against the merits of Mr Logue's claims.
The one sided state of evidence put to Mr Ghosh showed that Certa had received and had acknowledged Mr Logue's four tax invoices ‑ seeking payment for his professional services. But Certa had not challenged any of them at the time or to Mr Ghosh.
Mr Ghosh's determinations awarded Mr Logue his costs of $962.50 (GST inclusive) on each application (totalling $3,850), which Mr Logue had paid by way of a deposit in respect of the anticipated costs of the adjudicator upon each of the four applications.
Consequently, the adjudicator's determinations of 21 March 2017 required Certa to pay to Mr Logue, within seven days of those decisions, the following amounts:
(a)IAMA matter number 81035 $10,024.83 (GST inclusive)
(b)IAMA matter number 81036 $10,030.22 (GST inclusive)
(c)IAMA matter number 81037 $12,746.95 (GST inclusive)
(d)IAMA matter number 81038 $13,893.43 (GST inclusive)
That is the essential background underlying Certa's four distinct but obviously related judicial review applications that were filed in this court on 13 April 2017.
Each judicial review application asserts that there was vitiating jurisdictional error by Mr Ghosh and seeks relief by the writs of certiorari to quash each of Mr Ghosh's four adjudications - on a basis that they be declared 'invalid and of no force and effect'.
Observations on Certa's judicial review applications
Two observations may be made at the outset on Certa's four applications for judicial review. First, pursuing four applications in this court for a combined monetary sum in the order of $47,000, is wildly, uneconomic litigation. That is part of the reason I acceded to the request for the review applications to be decided wholly on the papers. Correlative to that economic unreality is the need for a level of accompanying proportionality in expending undue resources of this court deployed to resolve such a dispute.
Second, and more importantly, Certa undoubtedly still holds out of the regime of the CC Act, a full right to seek to vindicate its alleged rejection of and its suggested non‑exposure to Mr Logue's invoices via a full merits challenge to them, in the Magistrates Court of Western Australia in due course - even if Certa is first required to pay these invoices under adjudication determinations reached under the CC Act, on what is in effect, only an interim basis. That is clear from the structure of the CC Act: see s 45 of the Act which provides a regime of, in effect, triage payment relief to claimants within its ambit ‑ by reason of there being a construction contract (as defined).
I previously explained what is the CC Act's effectively interim payment relief regime in Re Anstee‑Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; (2011) 42 WAR 35.
Certa therefore enjoys full rights to challenge the invoice claims of Mr Logue on their merits before a magistrate to the fullest extent, if it wishes to seriously dispute Mr Logue's claims. Given all that, it displays absolutely no economic sense at all for Certa to ignore that opportunity and instead to pursue four expensive judicial review applications worth at base $47,000 in this court as jurisdictional challenges ‑ which are far more limited than a full merits challenge opportunity it enjoys elsewhere.
The scope for judicial review towards an adjudicator's decision under the CC Act on the basis of alleged jurisdictional error ‑ is conceptually curtailed by the very nature of such a (non-merits directed) review. Review applications are not concerned about the underlying merits of civil claims. They are focussed much more narrowly at the issue of the jurisdiction of the decision‑maker to decide.
Given all that, it is especially puzzling why Certa should be in the Supreme Court seeking the judicial review of four adjudication decisions worth in aggregate only commercial 'peanuts'.
That forum puzzle is a consideration relevant to the residual discretionary nature of a grant of prerogative relief as now sought by Certa on its four review applications.
As I will explain at the end of the reasons, I would have declined, irrespective of the success of Certa's judicial review grounds in present circumstances, the grant of prerogative relief - simply as a matter of discretion, given the ample merits opportunity held by Certa to litigate the merits of these four claims elsewhere.
Evaluation approach
Nevertheless, I need to proceed to evaluate first, the review grounds (commonly) raised by Certa for each review application. In that environment, it is necessary to say something more about the reasons as provided by Mr Ghosh to support each of his determinations.
As will be seen, Mr Ghosh's four sets of reasons for his determinations on the four CC Act applications of Mr Logue, were in a substantively common form. Undoubtedly, each set of reasons was brief in content. But that was hardly surprising, given the forensic circumstances of Certa's essential disengaged non‑participation before Mr Ghosh, and the otherwise straightforward character of the claims made and unmet by Certa on each invoice for Mr Logue's services.
In each instance, Mr Ghosh's reasons may be found within a schedule 1 accompanying each of his four adjudications (see annexure BWH 3 of each of the affidavits of Mr Hutchinson sworn 25 May 2017 filed in the four matters). As seen, each follows a similar format and structure. Given that, reference to one set of reasons will suffice.
Adjudicator's reasons on the four applications by Mr Logue under the CC Act
Mr Ghosh's reasons commenced with his observing as background that Mr Logue was seeking payment(s) to him based on an agreement Mr Logue claimed to have been reached with Certa, on 26 August 2016.
This was a wholly oral agreement as contended by Mr Logue that he related was made towards his engagement to provide his professional services to Certa.
Certa had engaged Mr Logue's services in relation to Certa's construction works at sites on South‑Western Highway in Byford, and also, at the St John Ambulance Depot and Training Centre in Kelmscott.
At par 4.1.1 in each of the reasons, Mr Ghosh, by reference to the issue of his jurisdiction, says:
There are three requirements for the formation of a contract, vis., an intention to create legal relations, agreement and considerations [sic]. All three must be present. There is no written contract between the applicant and the respondent. However, the applicant has provided sufficient evidence to establish that the three requirements of formation of a contract between the applicant and the respondent are satisfied. I am satisfied that there is a valid contract between the applicant and the respondent for the purposes of the Act.
Augmenting that observation, Mr Ghosh next observes at par 4.4.2:
The contract is not in writing. The applicant contends that there are no written provisions about the matters the subject of Division 2 of the Act in the contract and accordingly the provisions in Schedule 1 Divisions 2, 3, 4, 5 and 6 are implied in the contract. I agree with the applicant's contention.
I should interpolate that Mr Ghosh was obviously, by the reference above, focussing at s 13 of the CC Act, as regards the Act's provisions under sch 1 div 1. This provision deals with matters to be implied in a construction contract - absent written provisions.
Mr Ghosh's references to divs 2, 3, 4, 5 and 6 of the CC Act may next be seen as linked to s 14 through s 19 of the CC Act - concerning implied provisions applicable within a construction contract, again absent any express written provision.
A regime of such multiple implied terms is delivered by the CC Act in the areas of: amount determination and payment to a contractor; entitlement to progress payments by a contractor; making of a claim for payment and the response thereto; time for payment upon a claim; and as well, exposure to the obligation to pay interest upon a claimed payment not met once validly made.
There followed in Mr Ghosh's reasons what was an appropriate characterisation of the Logue/Certa relationship as an engagement of Mr Logue's professional services.
I note Mr Ghosh's remarks under par 4.2 in each of his scheduled reasons. At par 4.2.1 under the heading Construction Contract, Mr Ghosh said:
I am satisfied that the type of work is construction work, the meaning of which is given in sections 4 and 5 of the Act and that the contract between the applicant and the respondent is a construction contract pursuant to section 3 of the Act.
Brief as those characterisation observation reasons may present on the surface, they were not inappropriate here, in my view, towards the present circumstances, where only Mr Logue had put any evidentiary material to Mr Ghosh upon his four applications for adjudication under the CC Act.
It was clearly apparent from that one sided body of evidence that Mr Logue was a chartered professional engineer as well as an experienced project manager. In the past Mr Logue had been employed in that capacity for many years, first for a long time with the Main Roads Department of Western Australia then, subsequently, as a private consultant. Mr Logue was himself a registered adjudicator under the CC Act, as well.
Thus, Mr Ghosh had presented to him what was essentially a one sided body of essentially undisputed evidence. An important part of this evidence was to the effect that Mr Logue and Certa, (through Certa's representative, Mr Hutchinson) had conducted a face‑to‑face engagement conversation. At that time Mr Logue had indicated his amenability to assisting Certa professionally and told Mr Hutchinson that Mr Logue's remuneration rate would be at $350 per hour plus GST. That was all unchallenged evidence before Mr Ghosh.
Next, it is clear, by reference to a definition under s 3 of the CC Act, that a construction contract means a contract under which there is an obligation to provide 'professional services' that are relevantly related to construction work under the regime of the CC Act. 'Professional services' is a term of broad scope, from s 5(2) of the CC Act. It extends to include:
(i)surveying, planning, costing, testing, architectural, design, plan drafting, engineering, quantity surveying and project management services; but
(ii)not including accounting, financial, or legal, services.
Consequently, it was, therefore, fully open on the facts before Mr Ghosh as a matter of characterisation for him to reach the conclusions which he did.
On those limited and one-sided materials as submitted, Mr Logue was claiming payment for his professional services rendered to Certa, upon each of his four tax invoices.
Mr Logue's services (and thereby his invoices) were well open to be assessed as related to construction works performed by Certa on essentially undisputed materials before Mr Ghosh for the purposes of required determinations.
A demonstrated failure by Certa to meet Mr Logue's submitted tax invoices within 28 days and without offering any relevant explanation for that neglect being offered, gave rise to a payment dispute under s 6 of the CC Act.
Under all those circumstances, it was, therefore, open to Mr Logue as a party to a construction contract regulated by the CC Act to pursue the obtaining of adjudications against Certa via pt 3 of the CC Act as regards those four unpaid tax invoices - as payment disputes for the purposes of that Act.
Mr Ghosh had observed uniformly in his reasons at par 4.4.4, on the facts put before him, in these terms:
There is no evidence that the respondent disputed or rejected the whole or part of the payment claim. Therefore, the respondent was obliged by Division 5, s (7)(3)(b) to pay the whole of the amount of the claim within 28 days after receiving the claim … The respondent did not make any payment and therefore a payment dispute for the purpose of the Act arose.
The absence of an assertion of any level of challenge from Certa over the invoices received by Certa, was obviously then a telling forensic consideration ‑ against Certa and favouring Mr Logue's claims.
Mr Ghosh, under his reasons, then directed attention to s 31(2)(a) of the CC Act. In doing that, he was respecting the statutory injunction under that provision, bearing negatively upon the adjudicator ‑ requiring he or she to dismiss an application without rendering a determination - should any of the four explicit scenarios as identified under pars 31(2)(a)(i) through (iv) of the CC Act be identified. Those possible dismissal situations were considered, and duly assessed by Mr Ghosh as inapplicable.
At that point, Mr Ghosh reached the position where he was able to proceed to render his determinations on the balance of probabilities: see s 31(2)(b).
As regards the ultimate merits of each payment dispute as raised by Mr Logue for the purposes of the CC Act, Mr Ghosh concluded, upon each of his four determinations, rather unsurprisingly on that evidence, in favour of Mr Logue in terms:
6.1.1From the information contained in the application, it is evident that the respondent did not object to the invoiced amount or question the services provided by the applicant.
6.1.2The applicant sent several reminders for the payment. As late as 20 February 2017, the day before the applicant submitted the adjudication applications, the respondent in an email noted that 'none of the invoice are indispute [sic]'. In my opinion, the respondent simply chose not to pay the invoice.
6.1.3On the balance of probabilities, I am of the opinion that the applicant is entitled to the payment of the full invoiced amount.
The three grounds of each of Certa's four judicial review applications
Certa's three identical grounds, advanced upon each of the four judicial review applications made to this court were accompanied by some particulars.
Even so, and as will be seen below, none of the grounds seeking judicial review is clearly articulated.
Ground 1
Each of the three grounds is prefaced by a common chapeau in the following terms:
The respondent [ie, Mr Ghosh] acted outside the scope of the jurisdiction conferred upon him by the Construction Contracts Act 2004 (WA) (the CC Act) in purporting to make the determination by:
The residue of ground 1 then reads:
1.Determining the claim purportedly referred to him was a payment dispute arising under a construction contract, within the meaning of section 25 of the CC Act, in that, in terms of section 3 (which defines payment claim) the claim was not made under a construction contract.
As formulated, Certa's challenge on a basis of contended jurisdictional error (ie, by Mr Ghosh acting outside the scope of jurisdiction conferred upon him by the CC Act), approaches the incomprehensible.
The essence of ground 1's grievance might be speculated upon as emerging in what follows after words 'in that'. The next words may suggest it to be alleged that Mr Logue's claims to be paid in respect of his tax invoices, were not claims that were advanced under a 'construction contract'. Why might that be so? Ground 1 as read here does not provide an answer. The following particulars provided to ground 1 thus need to be unlocked to see if they help in that regard. For ground 1 they read:
(a)[Mr Ghosh] failed to consider:
(i)whether or not [Mr Logue's] purported professional services related directly to construction work as defined by section 5(2)(a)(i) of the CC Act; and,
(ii)whether there was work that was excluded by section 5(2)(a)(ii) of the CC Act.
Particular (b) supplied for ground 1 reads:
(b)on an objective determination of the schedule attached to the payment claim, [Mr Logue's] purported professional services did not relate directly to construction work and there was work that was excluded by section 5(2)(a)(ii) of the CC Act.
Ground 1 even read with the supplied particulars, remains unduly shrouded in verbiage and legalese. What might be being attempted is to run an argument along the lines that Mr Ghosh ought to have looked more closely at the underlying character of the subject matter of the work and services which Mr Logue performed and then was seeking payment for from Certa under his respective tax invoices.
Certa may be arguing that a scrutiny towards the factual character of the itemised hourly services as claimed for as performed by Mr Logue from Certa, had those services been more closely considered by Mr Ghosh (remembering ground 1's chapeau's expressed grievance that there was a 'failure to consider'), would have led to a conclusion by Mr Ghosh that some or all of the services claimed as undertaken by Mr Logue did not truly fall under the ambit of any of s 5(2)(a)(i)'s listed categories of a professional service. That looks to be an alleged erroneous characterisation of the professional service challenge being run in this court ‑ but obviously never put earlier to Mr Ghosh as a potential problem.
Certa further appears to argue as a part of the overall ground 1 jurisdictional grievance that there was not a direct enough relationship, as between some of the hourly services that have been claimed for by Mr Logue at his hourly rate to the construction works of Certa, or even that the true character of some services Mr Logue claimed to have performed have been in a nature of an 'excluded service' (such as Mr Ghosh performing what were to be characterised in truth as financial or legal services). Again, none of that was ever put to Mr Ghosh at the relevant time.
As we have now seen, Mr Ghosh had before him, for the purposes of his adjudications, the four tax invoices Mr Logue had submitted to Certa. Each invoice was accompanied by an attached hourly breakdown activity statement ‑ supporting the hourly calculated amounts rate submitted by Mr Logue for his professional services to Certa. These were tax invoices delivered with an itemised temporal breakdown of the work/services as claimed for under the hourly rate as agreed.
A late attempted mischaracterisation of services challenge ventilated for the first time to this court by judicial review, as a basis of an attempted jurisdictional challenge under ground 1, if nothing else, highlights the problem Certa now confronts.
What Certa attempts to do at the eleventh hour before this court on a review application at root, is to raise what is a factual dispute over differing characterisations now put by Certa towards some or other of Mr Logue's diverse itemised hourly rate services, explained in the itemised schedules to his invoices. This court on a review application is no place for petty cavilling over attempted ex post facto characterisations of services.
Late criticisms over the correct labelling of a provided service does not come close to meeting the parameters of jurisdictional error.
Certa, by its elective non‑participation before Mr Ghosh, really only has itself to blame for its present CC Act exposure to Mr Logue's tax invoices (interim as that payment exposure is under the CC Act).
Certa did not provide any evidence or arguments to Mr Ghosh at that time, to suggest different non‑jurisdictional repercussion characterisations of the services Mr Logue provided to Certa, to try to persuade Mr Ghosh as to how his services might, or might not, be characterised as impacting against his jurisdiction. There was nothing in the itemised scheduled breakdowns that accompanied Mr Logue's invoices prima facie suggesting he might have invoiced Certa to claim payment for some rogue‑type service ‑ that presented as well outside the parameters of a professional service under the CC Act in an overall context of an oral contract (as found) reached with Certa for his professional services.
Out of what are unproductive and otherwise disengaged circumstances around ground 1, there is no arguable basis to contend to this court that Mr Ghosh erred in exercising jurisdiction ‑ by failing at the time to pause to further delve into and then pursue some line of (then) enquiry about a then wholly unarticulated characterisation argument about the different underlying character of some of the described aspects of Mr Logue's professional services.
Certa's late mischaracterisations and lack of sufficient proximity to Certa's work arguments, emerge for the first time in this court. On analysis they do not raise a jurisdictional ground of error.
There is no basis to evaluate ground 1 further.
Ground 2
Remembering a common 'failure to consider' chapeau grievance to all Certa's grounds concerning Mr Ghosh allegedly acting outside the scope of his jurisdiction, ground 2 specifically advances to contend:
2.Determining that the payment claim purportedly referred to him was a payment dispute arising under a construction contract, within the meaning of section 25 of the CC Act, in that, at the time the adjudication application was commenced (21 February 2017), the relevant construction contracts had come to an end.
This asserted jurisdictional error here is once again, obscurely framed.
Directing attention to the ground 2 words that follow the phrase 'in that', a factual assertion seems to be being articulated by Certa over what I might guess at as an attempted reference to Certa's own construction contracts with its clients (rather than to the wholly oral construction contract found as between Certa and Mr Logue for the engagement of his services by Certa).
Particulars were provided for ground 2. However, as will be seen, they are not of real assistance towards obtaining a better insight to ground 2.
Particulars to ground 2 read:
Particulars
a)The construction work the subject of the applicant's [ie, meaning Certa's]:
i)subcontract it had with CATS Construction Pty Ltd came to an end on 15 September 2016;
ii)subcontract it had with Badge Constructions (WA) Pty Ltd came to an end on 17 December 2016; and,
iii)the purported professional services contract the applicant had with [Mr Logue] in respect of the above 2 subcontracts had come to an end on 17 December 2016.
There is some obvious confusion here, not least of which arises out of an unhelpful deployment of the loose phrase 'come to an end', as regards a contract.
Presumably, Certa is not contending that its subcontracts with CATS Construction Pty Ltd and Badge Constructions Pty Ltd had 'ended', in the legal sense of being terminated towards their future performances, such as for a repudiatory breach or some problem of that ilk. Nor do I speculate that Certa is contending its contracts with those client entities had been declared void or illegal in terms of their future performances.
I can speculate that what Certa is attempting to articulate under ground 2 is a temporal contention that the construction works it agreed to perform under each of the subcontracts mentioned at pars (a)(i) and (ii) had then been fully completed by Certa - at the as identified September and December 2016 dates.
Whether that was the case or not, is of course a pure question of fact. But, even if it were to be assumed that Certa's own contract works had all been finished up, that is legally irrelevant. A completion of those building or construction works by Certa would not, as a matter of law, mean that any outstanding or unperformed legal obligations towards Certa by those clients arising under the terms of such subcontracts had also 'come to an end' (such as for instance, the unmet payment obligation of a client to Certa for some or part of the completed work). Such contract rights would subsist.
On the materials submitted to Mr Ghosh, Mr Logue had been engaged to provide project management services and which were to be directed towards assisting Certa in its efforts in obtaining its claimed remuneration due from these contract entities ‑ which at that point, Certa contended were payment obligations outstanding to it.
Until those outstanding obligations (payments due or required to Certa) arising under subcontracts were fully met between Certa and its subcontracting entities, the fact that Certa had physically finished its construction works was a completely irrelevant consideration, vis-à-vis Mr Logue's professional services rendered to Certa and his right to be paid for his services by Certa.
With regard to Certa's verbal contract with Mr Logue, as the subject of particular (a)(iii), no greater elaboration is provided as to why as an issue of fact it might be sensibly argued that Mr Logue's professional services contract with Certa had been completed at 17 December 2016. But in any event this would not point to any relevant jurisdictional error by Mr Ghosh on Mr Logue's payment claims.
It may be the case that within this rather jumbled ground, Certa is attempting to manufacture a legal basis of challenge that is linked back to the definition of 'professional services' and from there to leap to the definition of 'construction contract' by s 3(c), which identifies that there may be a construction contract under which a person (the contractor such as Mr Logue) has one or more obligations:
(c)to provide, on or off the site where construction work is being carried out, professional services that are related to the construction work by virtue of section 5(2).
Possibly, this ground might just be an attempt to argue that because Certa's construction obligations under its subcontracts had, at least in its eyes, been fully performed by it as at the September and December 2016 dates, that it was not open then for there to be a subsisting professional services contract as between itself and Mr Logue, sufficient to be regarded as a construction contract regulated by the CC Act. But if that is the ground 2 attempted argument, then it is misconceived in any event.
The temporal reference in the CC Act under the s 3(c) definition of 'construction contract', on my assessment, is simply directed at the point that it does not matter (geographically) whether the professional services that relate to the construction work, are provided either on site or off the site. The relationship between the professional service and the construction work, as explained under s 5(2)(a) and (b), is expressed in wide terms as regards a direct relationship to construction work.
So, depending on the nature of the possible service provided by surveying, planning, costing, engineering or project management works, there might arise a need in some other disputes for an assessment of the work's relationship as a service to some particular construction work. But that would be an enquiry raising a factual issue which might, or might not, be necessary ‑ depending upon the presenting circumstances under a particular payment dispute.
In present circumstances, to contend, as ground 2 suggests, that Mr Logue's professional services could not be directly related to Certa's construction works, because Certa had by that time physically completed all works required of it under its subcontracts, would not raise a jurisdictional fact that Mr Ghosh was asked to or needed to resolve. Nor does, or should, this court on a judicial review application be asked to resolve after the event what is a factual issue.
Nothing put before Mr Ghosh made such a potential enquiry as to facts necessary, or in any way gave Mr Ghosh some notice that he needed to conduct any factual enquiries directed at that sphere of linkage between Certa's construction works for clients and Mr Logue's professional services to Certa.
Hence, ground 2, at the end of the day, fails as well. It does not raise an arguable jurisdictional error by the adjudicator.
Ground 3
In all four judicial review applications, a ground 3 challenge would seek to challenge the sufficiency of Mr Ghosh's reasons. It reads (remembering again, a common 'failure to consider' chapeau):
3.Failing to exercise the statutory jurisdiction requiring him to give reasons for the determination in accordance with section 36(b) of the CC Act.
Prior to considering the particulars accompanying ground 3, I note that s 36(b) of the CC Act says only:
An appointed adjudicator's decision made under section 31(2)(b) must -
…
(b)be prepared in accordance with, and contain the information prescribed by, the regulations;
…
There is an error within ground 3. Certa is probably attempting to refer to s 36(d) of the CC Act, not s 36(b). Section 36(d) provides:
(d)give reasons for the determination.
The Certa error is confirmed by its ground 3's particulars. They say:
Particulars
a)[Mr Ghosh] failed to provide reasons or adequate reasons regarding the finding that he was satisfied there was a 'construction contract', a 'payment claim' and a 'payment dispute'; and,
b)in finding that there was a 'payment dispute', [Mr Ghosh] failed to provide reasons or adequate reasons that the 'payment dispute' had arisen 'under a construction contract' within the meaning of section 25 of the CC Act.
Again, ground 3, read with the chapeau and the particulars, remains unacceptably opaque in terms of potential meaning(s) as regards identifying with clarity a jurisdictional error grievance.
I will assume for purposes of the ground 3 arguments that a failure to provide adequate reasons by an adjudicator might, as a matter of law, be a sufficient basis to lead to a grant of prerogative relief by way of certiorari. Nevertheless, I am not, at the end of the day, persuaded here that there is a prospective argument that the reasons of Mr Ghosh were inadequate, as suggested. I have already canvassed the content of Mr Ghosh's (four sets of) reasons earlier.
Brief as they were, Mr Ghosh's reasons pointedly addressed the recognised jurisdictional fact prerequisites concerning the existence or otherwise of a construction contract, a necessary payment claim and the necessary payment dispute. Then, they addressed whether the payment dispute was one arising as between the parties, under their construction contract. Those enquiries were all answered in the affirmative.
Hence, the required jurisdictional facts were all sufficiently addressed, found upon and established by Mr Ghosh ‑ concerning the contractual relationship he found subsisted here as between Certa and Mr Logue, wholly verbal as their agreement was.
The extent of an adjudicator's reasons required under the CC Act needs to be measured against the 'triage like' functions he was tasked to perform by the CC Act ‑ as regards that Act's policy objective of 'keeping the money flowing'. In particular, there presented here a rather unique circumstance that Certa was effectively and by choice a non‑participant towards this adjudication determination. Certa never challenged the merits of Mr Logue's claims seeking payment for his services to Mr Ghosh.
In such unique and one sided adjudication circumstances, observations upon the requirement for reasons stated in Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039, in turn cited by Le Miere J in Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 39 [16], are apposite. There is no requirement for an adjudicator's reasons to be lengthy, elaborate or detailed. The CC Act, given its compressed time limits and obvious statutory intent towards facilitating swift payments to a contractor on what is effectively an interim basis, stand as strong considerations against the imposition of unduly elaborate requirements for an adjudicator's reasons. Each situation will be different. Here, Mr Ghosh's four sets of reasons were, I assess, adequate, for the prevailing circumstances of the payment disputes he dealt with.
There is also no merit in ground 3.
All grounds must therefore be seen to fail. Certiorari will be refused accordingly.
Discretionary considerations
As seen, I have now concluded that there is no merit in any of the three grounds uniformly relied upon by Certa in the four judicial review applications pursued in this court. However, as I indicated at the commencement of these reasons, even if there had been elements of merit in one or more grounds, I would still have likely declined relief, as a matter of discretion.
These four review applications together cavil over the paltry amount of approximately $47,000 at issue, under the substantive underlying CC Act determinations. That is in circumstances where Certa clearly still holds a capacity to pursue a full merits curial contest with Mr Logue, over these sums in regard to its civil exposures to meet his invoices in the Magistrates Court of Western Australia. And, if successful there, Certa could then recover from Mr Logue any amounts paid on an interim basis as a result of an enforcement of Mr Ghosh's four determinations under the CC Act.
Four grossly uneconomic judicial review applications, burdening the resources of this court by such challenges needs to be brought squarely into focus. Certiorari or judicial review relief akin thereto under the Rules of the Supreme Court O 56 r 2, is ultimately discretionary, ‑ even if a jurisdictional error emerged.
For present circumstances, where Certa holds the full curial opportunity to proceed against Mr Logue in the Magistrates Court on the merits, the presenting of uneconomic review challenges to this court make no economic sense at all. Certiorari should be refused as a matter of discretion in my view.
This is particularly appropriate to circumstances where Certa chose not to participate at all by way of putting any evidence or submissions before the adjudicator. Existence of an alternate full merits redress in the Magistrates Court is a powerful consideration. See observations in Re Wilkie, Ex parte Johnston (1981) 55 ALJR 191 (Gibbs J); R v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15, 29 (Mason J) and 30 (Murphy J); and Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219 [129] - [140] (Martin CJ).
The refusal of prerogative relief (or the equivalent) upon discretionary grounds for present circumstances would deliver no substantial injustice to Certa: see R v Aston University Senate; Ex parte Roffey [1969] 2 All ER 964; [1969] 2 QB 538, 551, 559.
I am not in present circumstances confronting any application seeking a stay of the adjudicator's orders favouring Mr Logue such as, for instance, that which might arise were it to be contended that Mr Logue might, once paid by Certa, seek to put any received funds beyond a potential recovery by a merits trial in the Magistrates Court.
Nor, in the present scenario as I assess it, is there any asserted jurisdictional error that made patent: see Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 [95], [224] [281] ‑ [285]. Here, there are no jurisdictional defects that might be classed as 'of a patent nature' manifesting in present circumstances. The speculative scrutiny of arguments I have conducted of that needs to be winkled out of three perennially obscure grounds upon each of the review applications by Certa. Their obscurity renders that conclusion almost self‑evident.
In the prevailing circumstances then, I would, as a matter of discretion and irrespective of any potential ultimate perceived merits in the three grounds raised (if that were so), still refuse the relief that is sought.
Costs
On the present applications, Certa attempted to put to this court a significant array of affidavit material for, in effect, a de novo consideration. That was a wholly misconceived idea. It is, of course, an approach in stark contrast to the stance Certa took before Mr Ghosh, where it submitted no evidence at all and made no submissions concerning the merits or demerits of Mr Logue's payment claims. There is no de novo merits review to this court against an adverse adjudication determination upon newly assembled facts not put before the primary decision‑maker.
On applications contending for jurisdictional error by the allied absence of jurisdiction in Mr Ghosh as adjudicator, it was most inappropriate that the present applications evolved towards becoming some sort of contested factual joust - by rival submissions over suggested new evidence about facts never put before Mr Ghosh in the first place. This misconceived approach to judicial review in this court should not be repeated.
As an illustration of material that should never be put, I refer to a so called responsive affidavit of Mr Hutchinson, sworn 16 June 2017, where he would say this:
16.When Mr Logue stated his hourly rate of $350 per hour, I understood that he would charge that rate for his legal contract services assisting Certa with recovering money owing to Certa for extras work. If I knew that Mr Logue would charge $350 per hour for any project management services at a time when the contracted works Certa had with both CATS and Badge were close to reaching practical completion, I would never have agreed. If I knew that Mr Logue would charge about $42,000 for project management services against a $182,00 [sic] contract, I would never have agreed to engage Mr Logue.
That paragraph displays a high water mark of inadmissibility. Subjective views held by a contracting party at the time of perfecting a contract are never relevant or admissible towards interpretation of the content. On a judicial review application asserting jurisdictional error by an adjudicator under the CC Act they are even more bizarrely irrelevant.
The approach of Certa in terms of serving four different batches of affidavit material in this court of a voluminous extent after having put nothing before the adjudicator was costly, wasteful and, at the end of the day, entirely pointless. Such conduct requires sanction.
I will, in the circumstances, dismiss all four of Certa's applications with an award of indemnity costs in each application made to Mr Logue.
Orders
Accordingly, orders will issue contemporaneously with the publication of these reasons in each of the four judicial review applications in the following terms:
1.Application dismissed.
2.The applicant is to pay the other parties' costs of each application taxed upon a solicitor and client (ie, an indemnity) basis, save insofar as any costs that are assessed by a taxing officer to be of an unreasonable amount, or which were unreasonably incurred.
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