CH2M Hill Australia Pty Limited v ABB Australia Pty Ltd

The case of CH2M Hill Australia Pty Limited v ABB Australia Pty Ltd involved the interpretation of statutory provisions under the Construction Contracts (Security of Payments) Act 2004 (NT) and the judicial review of an adjudicator's determination. The plaintiff, CH2M Hill Australia Pty Limited, sought to challenge a determination made by an adjudicator appointed under the Act. The primary issues before the court were whether the adjudicator's decision to dismiss the application without a determination on the merits was reviewable, and if the adjudicator's determination was compliant with statutory requirements and the principles of natural justice.

The court first addressed the issue of whether the adjudicator's decision not to dismiss the application without a determination on the merits was reviewable. The court found that the decision was not reviewable if the adjudicator was satisfied that the matter was too complex to fairly determine within the prescribed time limits. The court emphasised that the adjudicator must be satisfied that it is not possible to fairly make a determination. However, the court held that the decision would be reviewable if the adjudicator's satisfaction that the matter was too complex was unreasonable. In this case, the court found that the adjudicator had not adequately engaged with the issues raised by the plaintiff and had failed to address the material submitted, leading to the conclusion that the decision was reviewable.

Further, the court examined whether the adjudicator's determination complied with the essential requirements of the Act and the principles of natural justice. The court found that the adjudicator had failed to provide reasons for the determination, which did not meaningfully engage with the issues raised by the plaintiff or address the material submitted. Additionally, the adjudicator had not considered the plaintiff's response to the adjudication application as required by the Act. The court concluded that these failures meant the adjudicator had not made a bona fide attempt to determine the dispute on the balance of probabilities, and had thereby failed to comply with the essential requirements of natural justice. As a result, the adjudicator's determination was a nullity.

Accordingly, the court granted the plaintiff's application for an order in the nature of certiorari under O 56 of the Supreme Court Rules, quashing the adjudicator's determination. The court also declared that the determination was of no effect. This outcome underscored the importance of adjudicators providing adequate reasons and engaging with the material submitted in adjudication proceedings.