Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd - [2010] NSWCA 190

No judgment structure available for this case.

Reported Decision: 78 NSWLR 393272 ALR 750[2011] ALMD 1134[2011] ALMD 1135[2011] ALMD 1133[2011] ALMD 1465[2011] ALMD 1088[2011] ALMD 1089

New South Wales

Court of Appeal

CITATION: Chase Oyster Bar v Hamo Industries [2010] NSWCA 190

HEARING DATE(S): 2 August 2010

JUDGMENT DATE:
24 September 2010

JUDGMENT OF: Spigelman CJ at 1; Basten JA at 62; McDougall J at 110

DECISION: Question 1: Whether the determination of the Second Defendant (the Adjudicator) on 18 March 2010 that he could hear and determine the first defendant’s adjudication application pursuant to the Building and Construction Industry Security of Payment Act (the Act) should be set aside or quashed for jurisdictional error in circumstances where the adjudicator incorrectly concluded (on the facts found by him and on the facts subsequently found by the Court) that the notice required by Section 17(2)(a) of the Act had been served on the Plaintiff in the time required by the Act.
Answer: The Supreme Court, in exercise of its supervisory jurisdiction:
(a) has power to determine that –
(i) an adjudication application has not been made in compliance with s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999;
(ii) the determination of the adjudicator, made in the absence of a valid adjudication application, was invalid, and
(iii) there was non-compliance in the present case;
(b) has power to grant relief in the nature of certiorari and set the determination aside.
Question 2: Whether in light of the decision of the High Court Kirk v Industrial Relations Commission [2010] HCA 1 the decision in Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 should not be followed or was incorrectly decided so far as it held that:
a. the Supreme Court of New South Wales was not required to consider and determine the existence of jurisdictional error by an adjudicator in reaching a determination under the Act;
b. an order in the nature of certiorari was not available to quash or set aside a decision of an adjudicator under the Act;
c. the Act expressly or impliedly limited the Supreme Court of New South Wales’ power to consider and quash a determination for jurisdictional error by an adjudicator in reaching a determination under the Act.
Answer: To the extent that Brodyn Pty Ltd v Davenport held, in relation to an adjudication application which was not in compliance with s 17(2)(a) of the Act, the matters set out in the question at a, b and c, it was in error.
Question 3: Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator’s determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari.
Answer: The Act contains no such limitation.
Order that, as between Chase and Hamo the costs in this Court should be Chase’s costs in the proceedings, but otherwise there should be no order as to costs.

CATCHWORDS: ADMINISTRATIVE LAW – judicial review – grounds of review – Building and Construction Industry Security of Payment Act 1999 – whether an incorrect determination by an adjudicator that a s 17(2) notice was served within the prescribed time amounts to jurisdictional error – whether Brodyn Pty Ltd v Davenport correctly decided. - ADMINISTRATIVE LAW – prerogative writs and orders – certiorari – Building and Construction Industry Security of Payment Act 1999 – whether determinations by adjudicators amenable to orders in the nature of certiorari for jurisdictional error – whether adjudicators are exercising a statutory function – whether there is a superadded requirement that an adjudicator is subject to a “duty to act judicially” before being amenable to prerogative writs. - ADMINISTRATIVE LAW – judicial review – privative clauses – Building and Construction Industry Security of Payment Act 1999 – whether the Act limits the power of the Supreme Court to review an adjudicator’s determination – whether such a limitation is permissible in light of Kirk v Industrial Relations Commission. - BUILDING AND CONSTRUCTION – security of payment – procedure for recovering progress payments – adjudication of disputes – Building and Construction Industry Security of Payments Act 1999 s 17.

LEGISLATION CITED: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Act 2002 (Vic)
Building and Construction Industry Payments Act 2004 (Qld)
Constitution of Australia
Evidence Act 1995 (NSW)
Home Building Act 1989 (NSW)
Industrial Relations Act 1996 (NSW)
Judiciary Act of 1903 (Cth)
Migration Act 1958 (Cth)
Occupational Health and Safety Act 1983 (NSW)
Supreme Court Act 1970 (NSW)
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242
Ainsworth v Criminal Justice Commission (1991) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Attorney General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian National University v Burns (1982) 43 ALR 25
Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222
Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; (2006) 67 NSWLR 9
Bread Manufacturers of New South Wales v Evans (1980) 180 CLR 404
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909
Brodyn Pty Ltd v Davenport [2004] NSWSC 254
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421
Brown v Rezitis (1970) 127 CLR 157
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110
Burns v Australian National University (1982) 40 ALR 707
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
City of Yonkers v United States, 320 US 685 (1943)
Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146
Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229
Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Director of New South Wales State Lotteries Office v Leonard (CA 285 of 1989, 18 October 1989, unreported; BC8901571)
Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190
Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182
Ex parte Toohey’s Limited; Re Butler (1934) 34 SR (NSW) 277; (1934) 51 WN (NSW) 101
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Farquharson v Morgan [1894] 1 QB 552
Fish v Solution 6 Holdings Limited (2006) 225 CLR 180
Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45
Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120
GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426
Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129; (2006) 22 BCL 285
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
John Holland Pty Ltd v Roads and Traffic Authority of New South Wales (2007) 23 BCL
Kioa v West (1985) 159 CLR 550
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Laing O’Rourke Australia Construction v H&M Engineering and Construction [2010] NSWSC 818
Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400
Manning v Thompson [1976] 2 NSWLR 380 (first instance); [1977] 2 NSWLR 249 (Court of Appeal); [1979] 1 NSWLR 384 (Privy Council)
Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 1) [2004] NSWSC 826, (2004) 50 ACSR 554; (2004) 23 ACLC 84
Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) [2004] NSWSC 829; (2004) 50 ACSR 554; (2004) 23 ACLC 215
McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470
Minahan v Baldock (1951) 84 CLR 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 84 ALJR 369
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 84 ALJR 369
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20
Minister for Local Government v South Sydney Council [2002] NSWCA 288; (2002) 55 NSWLR 381
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Musico v Davenport [2003] NSWSC 977
NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277
O’Reilly v Mackman [1983] 2 AC 237
Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Port Arthur Shipbuilding Co v Arthurs [1969] SCR 85
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Queen v Ross-Jones (1984) 156 CLR 185
R v Connell; Ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864
R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
R v National Joint Council for the Crafts of Dental Technicians (Disputes Committee); Ex parte Neate [1953] 1 QB 704
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1987] QB 815
R v Wilson; Ex parte Robinson [1982] Qd R 642
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Re Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76; (2001) 85 ALR 504
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Rex v Titchmarsh (1914) 22 DLR 272
Ridge v Baldwin [1964] AC 40
RJ Neller Building P/L v Ainsworth [2008] QCA 397
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Salemi v Mackeller (No 2) (1977) 137 CLR 396
Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558
State of Victoria v The Master Builders’ Association of Victoria [1995] 2 VR 121
Sydney Ferries Corp v Morton [2010] NSWCA 156
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Tasker v Fullwood [1978] 1 NSWLR 20
Testro Bros Pty Ltd v Tait (1963) 109 CLR 353
The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
United States v L.A. Tucker Truck Lines, 344 US 33 (1952)
Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
Yim v Industrial Relations Commission of NSW [2007] NSWCA 77
Yirrell v Yirrell (1939) 62 CLR 287

TEXTS CITED: M Aronson, ‘Jurisdictional Error Without Tears’ in M Groves and H P Lee (ed) Australian Administrative Law (2007) Cambridge University Press
M Aronson, ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review
M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co
P Craig, Administrative Law, 6th ed (2008) Sweet & Maxwell
S A De Smith, Judicial Review of Administrative Law, 3rd ed (1973) Stevens and Sons Limited
A M Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4
D M Gordon, ‘Relation of Facts to Jurisdiction’ (1929) 45 Law Quarterly Review 459
D M Gordon, ‘Observation of Law as a Condition of Jurisdiction’ (1931) 47 Law Quarterly Review 386
M Groves and H P Lee (ed) Australian Administrative Law (2007) Cambridge University Press
J J Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 77
W Wade and C Forsyth, Administrative Law, 10th ed (2009) Oxford University Press

PARTIES: Chase Oyster Bar Pty Ltd (First Appellant)
Cheryl Fran (Second Appeallant)
Paul Della Marta (Third Appellant)
Hamo Industries Pty Ltd (First Respondent)
Peter Finnane (Second Respondent)
Attorney-General of NSW (Intervenor)
St Hilliers Contracting Pty Ltd (Intervening Applicant)
Dualcorp Civil Pty Ltd (Intervening Respondent)

FILE NUMBER(S): CA 2010/076539

COUNSEL: B DeBuse (Apellants)
B D Hodgkinson SC / C A Bolger (First Respondent)
Submitting Appearance (Second Respondent)
M G Sexton SG, SC / J K Kirk (Intervenor)
G Inatey SC / D A C Robertson (Intervening Applicant)
M A Ashhurst SC (Intervening Respondent)

SOLICITORS: Watson & Watson (Appellants)
Fordham Lawyers (First Respondent)
MBA Lawyers (Second Respondent)
Crown Solicitors Office (Intervenor)
Colin Biggers & Paisley (Intervening Applicant)
Moray & Agnew (Intervening Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 2010/76539

LOWER COURT JUDICIAL OFFICER: McDougall J

LOWER COURT DATE OF DECISION: 21 April 2010

LOWER COURT MEDIUM NEUTRAL CITATION: Chase Oyster Bar v Hamo Industries [2010] NSWSC 332

CA 2010/76539
SC 2010/76539

SPIGELMAN CJ
BASTEN JA
McDOUGALL J
24 September 2010

CHASE OYSTER BAR PTY LIMITED v HAMO INDUSTRIES PTY LTD

Headnote

The plaintiff contracted with the first defendant for the first defendant to carry out fitout work for the plaintiff. On 31 December 2009, the first defendant served on the plaintiff a payment claim. The due date for payment of the claimed amount was 13 January 2010. The plaintiff did not provide a payment schedule in response to the payment claim. The plaintiff became liable, pursuant to s 14(4) of the Building and Construction Industry Security of Payment Act 1999 (‘the Act’), to pay the claimed amount to the first defendant by the due date, but did not do so. The first defendant made an adjudication application.

Section 17 of the Act relevantly provides:

The first defendant did not give notice until 11 February 2010: outside the 20 business day period for which s 17(2)(a) provides, but nonetheless made an adjudication application. The second defendant, the adjudicator, was appointed. The adjudicator made a determination that the first defendant was entitled to payment of the claimed amount, together with interest. Although there was no payment schedule, the adjudicator nonetheless considered whether the first defendant’s notice pursuant to s 17(2)(a) had been given within the time required, and concluded that it had. The plaintiff raised before the trial judge that compliance with s 17(2)(a) of the Act was essential if the adjudicator were to have jurisdiction, and that the adjudicator’s finding amounted to jurisdictional error.

By order made on 23 April 2010, three questions were removed into this Court:

Building and Construction Industry Security of Payment Act

Kirk v Industrial Relations Commission

Brodyn Pty Ltd v Davenport

3. Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator’s determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari.

The Court held:

In relation to Question 1:

1 Determinations by adjudicators are in principle amenable to orders in the nature of certiorari for jurisdictional error.

Musico v Davenport [2003] NSWSC 977; Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture(No 2) [2009] VSC 426; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Minister for Immigration and Citizenship v SZMDS (2010) 84 ALJR 369; Craig v South Australia (1995) 184 CLR 163 considered.

The Supreme Court, in exercise of its supervisory jurisdiction:

(a) has power to determine that –

Building and Construction Industry Security of Payment Act

;

Brodyn Pty Ltd v Davenport

NEAT Domestic Trading Pty Ltd v AWB Ltd

Musico v Davenport

Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2)

In relation to Question 2:

3 To the extent that Brodyn Pty Ltd v Davenport held, in relation to an adjudication application which was not in compliance with s 17(2)(a) of the Act, the matters set out in the question at (a), (b) and (c), it was in error: per Spigelman CJ at [56]; Basten JA at [108]; and McDougall J at [287].

Kirk v Industrial Relations Commission [2010] HCA 1 followed.
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 considered.

In relation to Question 3:

4 The Act contains no such limitation: per Spigelman CJ at [60]; Basten JA at [108]; and McDougall J at [287].

Brodyn Pty Ltd v Davenport

Plaintiff S157/2002 v The Commonwealth

Leung v Minister for Immigration and Multicultural Affairs

Minister for Immigration and Multicultural Affairs v Bhardwaj

5 In any event, Kirk has determined that it is not permissible for a State legislature to enact a privative clause which prevents the exercise by the Supreme Court of its supervisory jurisdiction with respect to jurisdictional error: per Spigelman CJ at [58]; and McDougall J at [160].

Kirk v Industrial Relations Commission [2010] HCA 1 followed.

CA 2010/76539
SC 2010/76539

SPIGELMAN CJ
BASTEN JA
McDOUGALL J
24 September 2010

CHASE OYSTER BAR PTY LIMITED v HAMO INDUSTRIES PTY LTD

Judgment

: I have had the benefit of reading the judgments of Justices Basten and McDougall in draft. Justice McDougall sets out the issues, facts and relevant statutory provisions. I gratefully adopt his Honour’s judgment in these respects.

Question 1

2 I agree with the answer to Question 1 proposed by Basten JA. Subject to the following additional observations, I agree with his Honour’s analysis under the subheadings: “nature of adjudicator’s function” and “duty to act judicially”.

3 The supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 can be invoked with respect to the exercise of statutory powers and the conduct of statutory procedures, whether or not the person to whom any orders equivalent to the prerogative writs are to be directed is a public officer. The position is, if anything, more clear when, as here, that person is appointed by an “authorised nominating authority” (s 17 of the Building and Construction Industry Security of Payment Act 1999 (“the Act”)), which is itself appointed as such by a Minister of the Crown (s 28).

4 The relevant provisions of the Act are set out by McDougall J. The Act creates a statutory right to progress payments (ss 8 and 9) which cannot be modified by a contract (s 34). Part 3 of the Act sets out a procedure for recovering such payments that, save for the necessity that a builder initiate the procedure by making a claim (s 13), makes express statutory provision for each step in the dispute resolution process. This extends to provision for an “adjudicator’s determination” (s 22) which is required to be paid (s 23), and the issuance of an adjudication certificate by an authorised nominating authority (s 24), which certificate may be filed in court as a judgment for a debt (s 25).

5 The process of adjudication is not in any sense a consensual arbitration of the character which has often been held not to be subject to the Court’s supervisory jurisdiction. Rather, it is a public, relevantly a statutory, dispute resolution process, and as a consequence is subject to the supervisory jurisdiction. (See, eg, R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864 at 882.)

6 A distinction between a private arbitration and a statutory arbitration has often been drawn. (See, eg, R v National Joint Council for Dental Technicians; Ex parte Neate [1953] 1 QB 704 at 707-708, 709; Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 978; Port Arthur Shipbuilding Co v Arthurs [1969] SCR 85; R v Wilson; Ex parte Robinson [1982] Qd R 642.)

7 As Malcolm CJ said, when rejecting the contention that the particular statutory body which was a party to proceedings should be treated as if it were a private insurer or trustee:

Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen

8 This line of authority has been applied to the scheme created by the Act in reasoning which, subject to one observation, I find convincing. (See Musico v Davenport [2003] NSWSC 977 at [28]-[32]; Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 at [23]-[24]; Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129; (2006) 22 BCL 285 at [44]; Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426 at [54]-[65], [79]-[81].

9 The matter on which I have a reservation arises from references in this case law to the concept of a “duty to act judicially”, derived from R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 at 205. This formulation has long since been superseded by the development of administrative law over the course of the last half century. This is acknowledged in Musico at [30] and Grocon at [44]. However the terminology is still deployed in Multiplex at [14] and Holmwood at [44].

10 The critical issue is whether the relevant decision-maker is exercising public power, relevantly, a statutory power. There is no longer a requirement that there be an identifiable, additional element that the relevant decision-maker has a duty to act judicially before that decision-maker is amenable to the prerogative writs. I do not share the doubt expressed by the learned authors Mark Aronson, Bruce Dyer and Matthew Groves Judicial Review of Administrative Action, 4^th ed (2009) Lawbook Co at [12.120] as to whether the superadded duty has been authoritatively rejected in Australia.

11 In the context of the obligation to accord procedural fairness, the idea that there was such an additional element was decisively rejected in Ridge v Baldwin [1964] AC 40 at 75-80. As Sir William Wade and Christopher Forsyth say in Administrative Law, 10^th ed (2009) Oxford University Press at 517, the formulation in Electricity Commissioners should be understood to state that the supervisory jurisdiction can be exercised:

accordingly

12 Ridge v Baldwin

was quickly accepted by the High Court as providing a new basis for further development of Australian administrative law. (See, eg, Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 at 233.) Thereafter references to a “duty to act judicially”, in the sense of a superadded duty, are not apparent in High Court judgments. The rejection of any such duty is manifest in two streams of authority.

13 First, is the affirmation on numerous occasions in High Court judgments of the scope of Australian administrative law stated by Brennan J in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.”

14 There is no scope in this formulation for a superadded duty. (For subsequent acceptance of this formulation see, eg, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [195]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [43]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 84 ALJR 369 at [19], [116].)

15 Secondly, there are many judgments which have rejected the relevance of characterising decision-makers as “executive” on the one hand and “judicial” or “quasi-judicial” on the other hand. (See, eg, Salemi v Mackeller (No 2) (1977) 137 CLR 396 at 419; Bread Manufacturers of New South Wales v Evans (1980) 180 CLR 404 at 415-416; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 409-410; Kioa v West (1985) 159 CLR 550 at 583-584, 616-617; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 64; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 365-366; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 158-159; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [112]-[113].)

16 Perhaps the clearest indication of the change is the High Court’s overruling of its earlier decision in Testro Bros Pty Ltd v Tait (1963) 109 CLR 353. The majority judgment in that case proceeded on the basis of a superadded duty to act judicially (per McTiernan, Taylor and Owen JJ at 362-363). The dissenting judgment of Menzies J employed the terminology of “duty to act judicially”, but his Honour’s reasoning is consistent with the view that this “duty” was not additional, but was the consequence of the exercise of the statutory powers in issue (at 372-373, 375-376). The other dissentient was Kitto J, who alone referred to Ridge v Baldwin, which had been handed down between argument and judgment in Testro v Tait. His Honour treated the issue of whether the duty to act judicially was a superadded duty as open (at 369-370.). The High Court has clearly overruled Testro v Tait. (See Annetts v McCann (1990) 170 CLR 596 at 599-600; Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 at 576-527.)

17 As the joint judgment put it in Ainsworth at 576:

“ … [W]hat is decisive in the nature of the power, not the character of the proceeding which attends its exercise … [S]o far as the decision in [ Testro v Tait ] was based on the character of the proceeding, it is inconsistent with the law as it has developed …”

18 It is no accident that when the joint judgment in Hot Holdings v Creasy quotes from Electricity Commissioners supra at 158 it refers only to the words “to determine questions affecting the rights of subjects” and omits the words “and having a duty to act judicially”. Their Honours go on to state, in the same terms (at 159):

“[F]or certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights.”

19 There is no additional element required. As Basten JA has recently said, references to a “duty to act judicially” reflect the “language of an earlier age”. (Sydney Ferries Corp v Morton [2010] NSWCA 156 at [79].) With respect to the line of authority to the effect that the supervisory jurisdiction will not be exercised in the case of committal proceedings, to which Aronson et al refer supra at [12.20], that authority should be understood as based on the policy of preventing fragmentation of the criminal justice process.

Question 2: The Authority of

Brodyn

20 As the terms of Question 2 posed for the consideration of this Court make clear, at the heart of these proceedings is the effect upon the reasoning and judgment of this Court in Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 of the subsequent High Court judgment in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531. The relevant passages of Brodyn have been set out by McDougall J, but it is appropriate to repeat the most pertinent references.

21 In Brodyn, Hodgson JA, with whom Mason P and Giles JA agreed, identified at [53] a non-exhaustive list of “basic and essential requirements” for a valid adjudicative determination, within the meaning of the Act. His Honour went on to refer to some “more detailed requirements”, including, relevantly, “s 17 as to the time when an adjudication application can be made and as to its contents” [54]. Section 17 is the section which is in issue in the present proceedings.

22 His Honour went on to say:

“[54] … A question arises whether any non-compliance with any of these requirements has the effect that a purported determination is void, that is, is not in truth an adjudicator's determination. That question has been approached in the first instance decision by asking whether an error by the adjudicator in determining whether any of these requirements is satisfied is a jurisdictional or non-jurisdictional error. I think that approach has tended to cast the net too widely; and I think it is preferable to ask whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator's determination.”

23 His Honour concluded:

Project Blue Sky Inc v Australian Broadcasting Authority

24 There are three aspects of this reasoning which are of significance for present purposes.

25 First, insofar as his Honour referred to the specific requirements of s 17, relevantly for present purposes s 17(2)(a), his remarks were obiter. The section did not arise in that case.

26 Secondly, his Honour’s statement that the Parliament “did not intend that exact compliance with all the more detailed requirements was essential” (emphasis added) may not mean that none of the detailed requirements are “essential”. It may leave open the possibility that some of these “detailed requirements” could be found to be “essential”. His Honour made it clear that he was not purporting to set out all of the “essential requirements” by using the word “include”, before identifying the list at [53], and by stating expressly that that list “may not be exhaustive” at [55].

27 The third consideration is of particular significance. The impact of the judgment in Kirk on his Honour’s reasons arises from his rejection at [54] of the applicability of the distinction between “jurisdictional” and “non-jurisdictional” error, on the basis that it “cast the net too widely”. His Honour went on to apply a test as to what statutory requirements constituted “an essential pre-condition”. That statement could be understood as the equivalent of “jurisdictional error”, but it appears from the passage quoted at [22] above, that that may not be what his Honour had in mind. The concept of “an essential precondition” may have been intended to be encompassed within, but narrower than, the scope of “jurisdictional error”.

28 His Honour may have been reflecting the long history of criticism of the concept of “jurisdictional error”. Perhaps the most sustained attack on the distinction between jurisdictional and non-jurisdictional error was that of D M Gordon, commencing in (1929) 45 Law Quarterly Review 459 and continuing in (1931) 47 Law Quarterly Review 386. Furthermore, Justice Felix Frankfurter, who once described the idea of jurisdiction as “a verbal coat of too many colours” (United States v L.A. Tucker Truck Lines 344 US 33 at 39 (1952)), also referred to the “morass” in which one can be led by “loose talk about jurisdiction”, concluding that “‘jurisdiction’ competes with ‘right’ as one of the most deceptive of legal pitfalls” (City of Yonkers v United States 320 US 685 at 695 (1943)). Lord Cooke of Thorndon expressed similar criticisms of the distinction, commencing with his 1954 unpublished PhD Thesis at Cambridge University (see M Aronson “The Resurgence of Jurisdictional Facts” (2001) 12 Public Law Review 17 at 19), which criticism was sustained by him in the New Zealand Court of Appeal and the House of Lords. Justice Kirby in the High Court frequently made similar observations. (See, eg, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [211]; Re Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76; (2001) 185 ALR 504 at [22]; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [173]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [120].) Justices Gummow, Hayne and Heydon once characterised “jurisdiction” as a “slippery term”. (Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365 at [106].)

29 The centrality of the distinction between jurisdictional and non-jurisdictional error had been identified by the High Court in Craig v State of South Australia (1995) 184 CLR 163. The significance of Kirk is that it has given this distinction a constitutional dimension in State law, to the same general effect as had earlier been established for Commonwealth law. That has placed this distinction at the centre of Australian administrative law jurisprudence, in a manner which is not consistent with the reasoning in Brodyn, on one view of that reasoning.

30 The distinction between jurisdictional and non-jurisdictional error is necessitated in Australian administrative law by the separation of powers established by Chapter III of the Constitution, as interpreted by the High Court. The constitutional basis of the distinction was confirmed, with respect to courts exercising federal jurisdiction, in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [98]. The judgment in Kirk identified the same distinction in State jurisdiction, arising from the fact that “the Supreme Court of any State” in s 73(ii) of the Commonwealth Constitution is a “constitutional expression”. (Kirk at [96]. See generally J J Spigelman “The Centrality of Jurisdictional Error” (2010) 21 Public Law Review 77.)

31 In Kirk, after identifying the constitutional foundation of the supervisory jurisdiction of the Supreme Courts of the states, the High Court concluded:

“[100] … [T]he observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context.”

32 This new dimension of the distinction between jurisdictional and non-jurisdictional error undermines the proposition in Brodyn, if that is the correct interpretation of the passage set out at [22] above, which suggests that, as a matter of statutory interpretation, a provision can constitute “jurisdictional error” but not constitute “an essential pre-condition”.

Question 2: Identifying Jurisdictional Error

33 There is no single test or theory or logical process by which the distinction between jurisdictional and non-jurisdictional error can be determined. (See M Aronson et al Judicial Review of Administrative Action, 4^th ed (2009) Lawbook Co esp at [1.80]-[1.90], [4.185]-[4.200]. See also M Aronson “Jurisdictional Error Without Tears” in M Groves and H P Lee (ed) Australian Administrative Law (2007) Cambridge University Press; P Craig Administrative Law, 6^th ed (2008) Sweet & Maxwell, Ch 14.) Nevertheless, as Gleeson CJ has pointed out: “Twilight does not invalidate the distinction between night and day.” (A M Gleeson “Judicial Legitimacy” (2000) 20 Australian Bar Review 4 at 11. See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163] per Hayne J.)

34 The submissions for the applicant in this Court were based on the proposition that a valid notice under s 17(2) was a jurisdictional fact. With respect to this form of jurisdictional error, the test has been expressed in a number of different, albeit equivalent, ways. The following formulation has found favour in recent High Court authority: the “criterion, satisfaction of which enlivens the power of the decision-maker”. (City of Enfield supra at [28]; Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43].)

35 However, the element presently under consideration – “cannot be made unless” – does not, in my opinion, invoke a jurisdictional fact. Like the formulation “must not be granted” considered in Gedeon supra at [46], it “conveys the notion of a contraction in the content of what would be the power otherwise conferred”, relevantly in this case, the right to make an application under s 17(1). Similarly, an “integer or element of the right” under s 17(1) “is its exercise by application made within the time specified”. (David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 277.)

36 The issue to be determined is whether the adjudicator had jurisdiction to determine an “application” which had been made without compliance with the mandatory (in a negative sense) terminology of s 17(2). The issue is not, contrary to some of the submissions made, whether the adjudicator had jurisdiction to determine that s 17(2)(a) had been complied with. That section is not addressed to the adjudicator and is not a matter which he is directed to “determine” within s 22(1) of the Act. It may be that it is a matter which he must “consider” as one of the “provisions of the Act” within s 22(2)(a). However, that section confers no power to determine the issue.

37 As Hodgson JA recognised in Brodyn, in the passage set out at [23] above, the relevant question is that which was propounded in the joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. Section 17(2) of the Act is a procedural requirement of the kind to which the High Court referred in Project Blue Sky in the following way:

“[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

[92] Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory.”

38 The joint judgment went on to approve the judgment in Tasker v Fullwood [1978] 1 NSWLR 20, particularly with respect to the doubt expressed by this Court about the utility of the distinction between “directory” and “mandatory” requirements. The High Court concluded:

Tasker v Fullwood

39 The language of essentiality, extending as it does to words like “mandatory” and “jurisdictional” is, as has frequently been pointed out, a convenient way of expressing a conclusion. This is the result of a process of construction in which all of the relevant principles of the law of statutory interpretation are applied. (See, eg, Tasker v Fullwood supra at 23-24; Project Blue Sky supra at [93]; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [39]; Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146 at [23].) The joint judgment in Project Blue Sky supra at [91], quoted at [37] above, indicated that a range of factors have been identified as relevant to the process of statutory interpretation, but there is neither a “decisive rule” nor “even a ranking of relevant factors … to give guidance”.

40 The first textual indicator that is always of significance is the mode of expression of the element directly in issue. Substantial, indeed often, but not always, determinative, weight must be given to language which is in mandatory form. See, for example:

David Grant v Westpac

City of Enfield

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs

41 The element under consideration in the present case – “cannot be made unless” – has a similar mandatory import. To adapt the words of Gummow J in David Grant v Westpac at 277:

“ … it is impossible to identify the function or utility of the words – “cannot be made” – if (they do) not mean what (they) say.”

42 The second aspect which must be taken into account, in addition to the text, is the structure of the legislative scheme. This is the context which must be taken into account in the first instance, not only after some ambiguity is identified in the directly operative words. (See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.) There are two particularly relevant considerations for present purposes. First, the point of time in the decision-making process at which the element under consideration occurs. Secondly, the treatment of time limits in the scheme as a whole.

43 With respect to the first aspect, it is particularly relevant that the element occurs at the application stage of the decision-making process. It does not involve consideration of matters which can arise during the course of the decision-making process itself. A traditional formulation of the relevant distinction is whether the relevant element is “a fact to be adjudicated upon in the course of inquiry” as distinct from an “essential preliminary to the decision-making process”. (Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 443. See also the discussion in Timbarra supra at 65-67 and Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [46]-[49].)

44 As I pointed out in Woolworths v Pallas Newco:

“[47] The word ‘preliminary’ does not, in this context, refer to a chronological sequence of events, but to matter that is legally antecedent to the decision-making process …

[48] The extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely that the fact is jurisdictional.”

45 There are a number of cases in which the absence of an element required to be present in the application which initiates a decision-making process has been held to be jurisdictional. (See, eg, Ex parte Toohey’s Limited; Re Butler (1934) 34 SR (NSW) 277; (1934) 51 WN (NSW) 101; Minahan v Baldock (1951) 84 CLR 1; Manning v Thompson [1976] 2 NSWLR 380 (first instance); [1977] 2 NSWLR 249 (Court of Appeal); [1979] 1 NSWLR 384 (Privy Council); David Grant supra at 276-277; and see the analysis in Timbarra supra at [56]-[60].)

46 The significance of this factor is reinforced by a second aspect of the legislative scheme. The legislation provides for a precise sequence of time stipulations, as follows:

A payment claim may be served “only” within the period identified in the contract or 12 months, whichever is later (s 13(4)).

The respondent to a payment claim becomes “liable to pay the claimed amount” if a payment schedule is not provided within the time required by the contract or 10 days, whichever is earlier (s 14(4).

A claimant may recover unpaid monies as a debt or make an adjudication application if the payment schedule has been provided in accordance with s 14(4)(b), and the respondent fails to pay within the time required or 10 days, whichever is earlier (s 16(1)(b)).

Where a payment schedule indicates that an amount less than that claimed is said to be owing, the claimant must make an adjudication application within 10 days (ss 17(1)(a)(i) and 17(3)(c)).

Where a respondent fails to pay any part of the scheduled amount accepted to be owing by the due date for payment, the claimant must make an adjudication application within 20 days after the due date for payment (ss 17(1)(a)(ii) and 17(3)(d)).

Where the respondent fails to provide a payment schedule and the claimant proposes to apply for an adjudication application, in accordance with s 15(2)(a)(ii), rather than to recover the amount claimed as debt, the claimant cannot make an adjudication application unless s/he provides a notice within 20 days of the due date for payment of an intention to apply and the respondent has been given an opportunity to provide a payment schedule for five days after receiving the notice (ss 17(1)(b) and 17(2)).

Any adjudication application pursuant to the notice referred to in the immediately preceding bullet point must be made within 10 days after the end of the five day period for providing a payment schedule (s 17(3)(e)).

The “authorised nominating authority” has a duty to refer an application to an adjudicator “as soon as practicable” (s 17(6)).

Where there has been a payment schedule provided, the respondent may lodge an adjudication response at any time within five days after receiving a copy of the application, or two days after receiving notice of an adjudicator’s acceptance of the application, whichever is later (s 20(1)).

An adjudicator is to determine an adjudication application “as expeditiously as possible and, in any case” within 10 days of notifying the claimant and respondent of acceptance of the application, or such further time as the claimant and the respondent agree (s 21(3)).

After the adjudicator has made a determination of the amount payable a respondent is required to pay an adjudicated amount on or before five days after the date of service of the determination (s 23(2)).

A claimant may suspend work or supply of services after two days from giving a notice of intention to do so (s 27(1)).

The right referred to in the immediately preceding bullet point expires three days after payment is made (s 27(2)).

47 This detailed series of time provisions is carefully calibrated to ensure expeditious resolution of any dispute with respect to payments in the building industry. The time limits are a critical aspect of the scheme’s purpose to ensure prompt resolution of disputes about payment. It is commercially important that each party knows precisely where they stand at any point of time. Such certainty is of considerable commercial value.

48 Subject only to those provisions which can be varied downwards by the contract and one provision which permits the parties to agree to an extension, there is no indication that Parliament intended the dates for which it provided to be flexible. This significantly reinforces the conclusion available from the mandatory language of s 17(2).

49 Mr B Hodgkinson SC, who appeared for the respondent, submitted that the essential element in s 17(2)(a) was the requirement of notice. The additional element – that such notice be made within 20 days after the due date for payment – was not, he submitted, essential.

50 But for the detailed sequence of the express provisions for time set out at [46] above, there may have been some force in Mr Hodgkinson’s submission. However, the structure of the legislative scheme, that I have set out above, strongly suggests that Parliament intended the time limits to operate precisely in accordance with their terms. Such an operation ensures that, at every stage, each party knows exactly where s/he stands on any day.

51 Mr M G Sexton SC, the New South Wales Solicitor General, who appeared for the intervening Attorney, submitted that although the 20 days period is easily ascertained, the commencement date, ie, when payment is due, is not always so clear. This is, in my opinion, of little weight in view of the express stipulation in s 11(1) that a progress payment becomes due and payable on the date specified in the contract or if none is specified, 10 days after a payment claim is made.

52 It is well established that the adverse effects of a finding that an element is jurisdictional should be considered before reaching a final conclusion. In Brodyn it was noted that the determination of a statutory entitlement to payment under the Act does not foreclose the possibility of an ultimate finding that the contractual rights were different. (See Brodyn supra at [51] and [88].) However, as McDougall J indicates, payment does shift the risk of insolvency, not an unknown phenomenon in the building industry.

53 The statute itself also creates another risk which may lead to irreversible contractual consequences. A claimant is given the option, at several stages of the process which I have set out at [46] above, to give notice of an intention to suspend the carrying out work or supplying services. (Section 15(2)(b), s 16(2)(b), s 24(1)(b).) S/he is given statutory protection in the event of such a suspension by s 27 of the Act. In Brodyn, Hodgson JA said at [51] that s 27 “could operate as a trap”, if the processes under the Act were subsequently set aside as void. Nevertheless, Hodgson JA went on to observe that the Court may be able to avoid injustice by the terms of any relief which it gives.

54 It may be arguable that s 27(1) applies so long as a bona fide notice of intention to suspend was given, whether or not, as a result of a subsequent court order, the fact or circumstance which authorises the notice to be given has been set aside. This issue was not the subject of submissions and need not be decided.

55 The possibility that s 27 may “operate as a trap” is a material consideration. However, it is not, in my opinion, sufficient to overcome the force of the text and structure of the legislative scheme to which I have referred. As Hodgson JA recognised in Brodyn, the purpose of the legislative scheme is best served by restricting the scope of intervention by the Courts. I do not believe that there will be frequent occasion for such interference – perhaps after a transitional period – once it is realised in the building industry that punctilious compliance with each specific time limit is required if a builder is to have the benefit of the scheme established by the Act.

56 I agree with the answer to Question 2 proposed by Basten JA.

Question 3

57 Question 3 posed for the consideration of the Court is expressed in a manner which contains a hypothesis in the words “so far as [the Act] expressly or impliedly limits the power of the Supreme Court … to review … for a jurisdictional error”. The relevant section of the Act which, hypothetically, could be said to have any such effect is s 25(4)(a)(iii) which provides that a respondent may not, in proceedings to have a judgment set aside, “challenge the adjudicator’s determination”.

58 In one sense this matter has been clarified by Kirk which determined that it is not permissible for a State legislature to enact a privative clause which prevents the exercise by the Supreme Court of its supervisory jurisdiction with respect to jurisdictional error. However, the position is quite clear even on the law before Kirk.

59 The section is not a privative provision of that character. Indeed, contrary to the submissions made in this Court, that was made clear in Brodyn supra at [41]-[42], [58]-[59], noting the reference to “not void” at [59]. Section 25(4) says nothing about the supervisory jurisdiction of the Supreme Court. It is addressed only to the proceedings to set aside a judgment debt. Furthermore, on longstanding authority, the reference to the “determination” in s 25(4)(a)(iii) would be interpreted to mean a determination not affected by jurisdictional error. (See, eg, Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181; Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114; Brown v Rezitis (1970) 127 CLR 157 at 172.)

60 I agree with the answer to Question 3 proposed by Basten JA.

Conclusion

61 Each of the questions should be answered as proposed by Basten JA. I agree with the order proposed by McDougall J.

: The procedural, factual and statutory background to this matter have all been comprehensively set out by McDougall J and need not be repeated. As I have some difficulty in answering the questions removed into this Court in the terms in which they are formulated, I will set out my own reasons for reaching conclusions, which are in most respects in conformity with his Honour’s.

Amenability of adjudicator to relief in nature of certiorari

63 It is convenient to address first the amenability of the adjudicator’s determination to relief in the nature of certiorari. This issue depends upon the possible relevance of two considerations, namely:

(a) the nature of the function being exercised by an adjudicator, and its relationship with government power; and
(b) whether an adjudicator acts judicially.

(a) nature of adjudicator’s function

64 An adjudicator must be an individual having prescribed qualifications and must not be a party to the contract: Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Security of Payment Act”), s 18. In relation to a particular adjudication, the adjudicator is a person appointed by an “authorised nominating authority” acting with the authority of the Minister: s 28. The act of the authorised nominating authority in nominating an adjudicator is one for which the authority may charge a fee: s 28(3). The parties to the adjudication are liable for the fee: s 28(4). The adjudicator is also entitled to a fee for which the parties to the adjudication are liable: s 29(1), (2) and (3). The adjudicator enjoys a statutory immunity from personal liability for things done or omitted to be done in exercise of his or her functions, if done in good faith: s 30(1).

65 It is clear from this statutory regime that an adjudicator is not an officer of the government, is not nominated by an officer of the government and is not paid by the government for exercising statutory functions. Nor does the government have any power to control an adjudicator, either when exercising statutory functions, or otherwise.

66 It follows that, for the adjudicator to be amenable to relief in the nature certiorari, such relief must be available on the basis only that the adjudicator is exercising a statutory function.

67 In this country, the role of private authorities carrying out statutory functions has been discussed primarily in relation to the concept of an “administrative” decision within the terms of s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). In Burns v Australian National University (1982) 40 ALR 707, Ellicott J reviewed an employment decision made by the University, which was incorporated under statute. (His Honour’s finding that the decision was made “under an enactment” was reversed on appeal, but not so as to affect the following statement: Australian National University v Burns (1982) 43 ALR 25.) In relation to the question whether the decision was “administrative”, his Honour stated at 714:

“It is obviously unwise to attempt a comprehensive definition but, in my opinion, it is at least apt to describe all those decisions, neither judicial nor legislative in character, which Ministers, public servants, government agencies and others make in the exercise of statutory power conferred on them, whether by Act of the Parliament or by delegated legislation. In other words it at least covers the decisions made in executing or carrying into effect the laws of the Commonwealth.”

68 In NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277, the High Court was asked to determine whether judicial review was available under the ADJR Act in relation to a decision of a private corporation authorised by statute to grant or refuse approval, being a precondition to a statutory authority granting a licence to export wheat. The majority in the High Court held that the company’s “approval” was not a decision under an enactment but conduct undertaken in its private capacity. The statute gave effect to the result, but was not necessary to empower the conduct: at [54] (McHugh, Hayne and Callinan JJ). The majority, however, proceeded beyond the specific question as to the application of the ADJR Act, stating at [58]:

“Because the 1989 Act did not expressly or impliedly require or authorise AWBI to decide whether to approve the issue of a bulk-export permit, AWBI could not be compelled, by mandamus or otherwise, to decide whether to grant or not grant its approval. It was under no statutory, or other, obligation to consider that question.”

69 Thus, AWBI did not act by reference to “public” matters but was able to determine whether or not to grant approval purely on the basis of its private commercial interests: at [59].

70 The situation of an adjudicator under the Security of Payment Act is significantly different. He is or she is not entitled to pursue any personal interests and, at least in relation to the administration of the construction contract, is not permitted to have an interest in the outcome: s 18(2)(a). Rather, the adjudicator is required to determine an application having regard only to the matters specified in s 22(2). Although the adjudicator is entitled to be paid for his or her services, it may be assumed for present purposes that it would be legally erroneous for the adjudicator to take into account any such personal interests in making a determination under s 22. The right which is to be determined by the adjudicator is not a right which necessarily arises under contract; although the amount may depend upon the contract, the right to payment is a creation of statute.

71 In Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426 (“Grocon”), Vickery J concluded that an adjudicator operating under equivalent legislation in Victoria (the Building and Construction Industry Security of Payment Act 2002 (Vic)) was subject to judicial review and to relief by way of certiorari and declaration. In the result, his Honour found that there was neither jurisdictional error nor other error of law: at [283] and [284], with the result that certiorari was refused. However, it is clear that his Honour considered such relief would be available in an appropriate case. After referring to doubts expressed in this Court in Brodyn Pty Ltd v Davenport [2004] NSWCA 394; 61 NSWLR 421 at [46], his Honour referred to authority for the proposition that any body of persons having statutory authority to determine questions affecting the rights of subjects might be characterised as exercising “governmental power”, sufficient to attract certiorari: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171; Ridge v Baldwin [1964] AC 40; O’Reilly v Mackman [1983] 2 AC 237. His Honour held at [50]:

Hot Holdings Pty Ltd v Creasy

72 I considered the effect of the determination on the legal rights of the parties a sufficient basis for finding inconsistency with the Trade Practices Act 1974 (Cth) in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; 67 NSWLR 9 at [112]-[117].

73 In Grocon, Vickery J turned to consider whether the adjudicator was to be characterised as in a similar position to a privately appointed arbitrator whose awards have generally been considered immune from interference by prerogative writs: at [56], referring to R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 351 (Lord Denning). His Honour noted that the source of power of the privately appointed arbitrator was contractual and not statutory, noting the remarks of Lord Goddard CJ in R v National Joint Council for the Crafts of Dental Technicians (Disputes Committee); Ex parte Neate [1953] 1 QB 704 stating at 708:

“There is no instance of which I know in the books where certiorari or prohibition has gone to any arbitrator except a statutory arbitrator, and a statutory arbitrator is a person to whom by statute the parties must resort.”

74 Although unnecessary for his conclusion, Vickery J also referred to R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1987] QB 815. The Panel was an industry body lacking legal recognition. Its determinations were of undoubted commercial and public significance in the operation of the London Stock Exchange and the enforcement of the non-statutory City Code on Take-overs and Mergers. The Court of Appeal held that it was amenable to judicial review although a private body, because it was exercising “regulatory functions of government”: at [74]. Vickery J stated that Datafin had been “applied in Australia”, particularly in State of Victoria v The Master Builders’ Association of Victoria [1995] 2 VR 121 (Tadgell, Ormiston and Eames JJ), and Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) [2004] NSWSC 829; 50 ACSR 554; 23 ACLC 215 (Shaw J).

75 Although his Honour noted that it was not necessary to rely upon the reasoning in Datafin to uphold the amenability of the adjudicator to certiorari, if it were correct that Datafin had been applied by the Full Court of the Victorian Supreme Court, this Court should follow the same approach, unless persuaded that the Victorian decision was clearly wrong. However, I do not read the Full Court decision as applying, or approving, Datafin. The Master Builders’ case involved a challenge to the conduct of the “Building Industry Taskforce”, which had sought to require builders involved in contracting with the Victorian Government to make a declaration that they had not engaged in unlawful tendering practices. The primary judge (Hempel J) had not granted relief pursuant to prerogative writs, but by way of declaration. Nevertheless, the Full Court considered whether the Taskforce was subject to judicial review. Tadgell J noted the remark of Sir John Donaldson MR in Datafin that the Panel was “without visible means of legal support”: at 137(10). By contrast he noted that the “source of power [of the Taskforce] is patent”. Although the membership of the Taskforce was not readily identified, it was established “under the auspices of” the Victorian Department of Justice (p 146) and the letter to contractors was sent by a solicitor on letterhead of the Victorian Government Solicitor (p 124). It was, in effect, an arm of government, although not established pursuant to statute. The real issue was whether the courts had powers in the nature of judicial review with respect to the exercise of prerogative powers of the government: at 147-148 (Ormiston J). It is possible Eames J could be said to have “applied” Datafin (at 163-164) but if so, it was clearly unnecessary to do so, the Taskforce being an emanation of government, exercising governmental power.

76 A second example relied upon in Grocon of the application of Datafin in Australia was the judgment of Shaw J in Masu (No 2). The nature of the defendant (“FICS”) was more completely identified in a previous judgment namely, Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 1) [2004] NSWSC 826, 50 ACSR 554; 23 ACLC 84. In considering constitutional issues relating to the operation of FICS, his Honour noted in Masu (No 1) that it was a registered corporation handling complaints within the financial services industry. It was said to have been “constituted under regulations and a policy statement” issued by the Australian Securities and Investments Commission: at [3]. Four of its directors were appointed by industry members and four by the Federal Minister for Consumer Affairs. Although Shaw J stated in Masu (No 2) that “the preponderance of Australian authority indicates that [Datafin] is applicable in this country” (at [5]), the decision did not depend upon any extension of general law principles to non-government bodies or any close comparison of FICS with the Take-over Panel in Datafin. To the extent that his Honour sought to rely upon the observations in Minister for Local Government v South Sydney Council [2002] NSWCA 288; 55 NSWLR 381 and in the Master Builders’ case, I would not accept that either decision demonstrates the applicability of Datafin in Australia.

77 In the High Court, Datafin has been discussed only in NEAT Domestic and then only by Kirby J in dissent. (It will be recalled that NEAT was a case concerned with the operation of the ADJR Act.) His Honour’s acceptance of its principles was not unqualified, noting at [115]:

Forbes

Datafin

78 In this Court, Datafin was referred to in Minister for Local Government v South Sydney City Council. The question was whether the Local Government Boundaries Commission was required to accord procedural fairness to the South Sydney City Council in respect of a proposed change of boundaries. The Boundaries Commission was established by statute and exercised statutory functions. The application of Datafin was not an issue in the proceedings. However, in the course of a discussion in relation to the source of the obligation to afford procedural fairness, Spigelman CJ explained that the doctrine was one of the common law which “attaches to the exercise of public power, subject to any statutory modification of the common law in that regard”: at [6]. His Honour noted that the common law basis for the duty was reflected in its extension to the exercise of prerogative powers and was the basis “for the extension of the principles of judicial review to private bodies which make decision of a public character”: at [7]. In that respect, his Honour referred to Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; 143 CLR 242 and Datafin as examples of the scope of the principles to which his Honour was referring. The case provided no occasion for the consideration of whether Datafin applied in Australia, nor did his Honour express a view in that regard.

79 Datafin was also referred to by Campbell J in McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 at [81]. The reference was in passing, as his Honour was dealing with the application of procedural fairness to the exercise of a power of expulsion by a private club, a matter which, as his Honour noted, was the subject of well established authority permitting remedies for breach, not by issue of a prerogative writ, but by way of a declaration of invalidity: at [82]. McClelland provides a timely reminder that the duty to accord procedural fairness is not co-extensive with the availability of certiorari for breach. Indeed, as has been noted by Professor Aronson, Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 was the first explicit recognition by the High Court that breach of procedural fairness constituted a form of jurisdictional error: M Aronson, “Jurisdictional error without tears”, in M Groves and HP Lee Australian Administrative Law (Camb UP, 2007) p 336.

80 In the Full Court of the Federal Court, Datafin was referred to in a case concerning the operation of an appeal panel dealing with breaches of the rules of the New South Wales Rugby League: Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242. Relief was granted by way of declaration that the rules were in restraint of trade. Gummow J noted at 291-292:

Heatley v Tasmanian Racing and Gaming Commission

Shepherd v South Australian Amateur Football League Inc

Dixon v Australian Society of Accountants

R v Panel on Take-overs and Mergers; Ex parte Datafin Plc

81 The result of this analysis suggests that there is an absence of authority in Australia addressing the question of whether or not Datafin applies. The authorities relied upon in Grocon do not support the proposition that it is applicable and, to the extent that it extends public law remedies to private bodies which do not exercise functions conferred by government, whether under statute or otherwise, it is not necessary to rule on its application in the present case. Suffice it to say that there is no authority in the High Court which supports its application and statements of general principle in that Court might be thought to adopt a more limited scope for the operation of public law remedies.

(b) duty to act judicially

82 There is a further question as to whether it is necessary to determine that the adjudicator had a duty to “act judicially”, in order to be amenable to public law remedies of certiorari and prohibition. The criterion of a duty to act judicially is drawn from the judgment of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 205. Atkin LJ described the writs as operating wherever “any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority”. With respect to the requirement to “duty to act judicially”, Aronson, Dyer and Groves state that Australian cases “have not yet dispensed with” that element: Judicial Review of Administrative Action (4^th ed, 2009) at [12.120]. However, that may be because it has been overtaken by other developments, which have rendered it otiose.

83 There has been a significant weakening of the nature of the affectation of legal rights since Lord Atkin wrote. A recommendation of an administrative body which a final decision-maker is required to take into account will have the requisite legal effect upon rights to attract certiorari: Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149 at 165 (Brennan CJ, Gaudron and Gummow JJ). Further, the element could have arisen in numerous cases in which certiorari has been sought in relation to the decisions of Ministers, administrative decision-makers, local councils and similar bodies where it has not only not been raised, but where the occasion has passed without comment. Finally, there is a question as to what such a duty would now refer to, given the different constitutional environment of administrative law in Australia and having regard to legal developments in the last 85 years. Such language has been used on occasion to identify circumstances attracting the duty to accord procedural fairness.

84 Although it may be unnecessary to determine in this case whether there is any requirement to identify a duty to act judicially, and what may be encompassed by the outer limits of such a requirement, I agree with the analysis of Spigelman CJ at [9]-[16] above. In any event, there seems little doubt that the adjudicator, in exercising a statutory function of determining the amount of a progress payment and the date on which such amount becomes payable, would fall comfortably within the scope of such a requirement, so as to engage, for example, an obligation to give reasons (were there no statutory requirement to that effect – see Security of Payment Act, s 22(3)(b)): see Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [20] (Handley JA) and at [104]-[109].

(c) operation of privative clause

85 The general amenability of a body to judicial review may be limited by statute. That raises a question as to whether there is a privative clause which restricts judicial review in the present circumstances. As noted by McDougall J, the only provision which seems to be a candidate is s 25(4), set out at [195] below. There are other provisions in the Act which limit the right of a respondent to resist judgment resulting from the service of a payment claim: see ss 15(4) and 16(4). (The operation of s 15(4) was considered by this Court in Bitannia Pty Ltd v Parkline Constructions Pty Ltd at [78]-[82].) Section 25(4), however, has an additional limb, not shared by those provisions, namely the denial of any entitlement “to challenge the adjudicator’s determination”: s 25(4)(a)(iii).

86 A number of features of s 25(4) should be noted. First, its language falls well short of common forms of privative clause, such as s 474 of the Migration Act 1958 (Cth) considered in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476, set out at [48]. Secondly, it does not say anything directly about proceedings for judicial review of the adjudicator’s determination. It is limited to proceedings brought to set aside a judgment. There will be steps to be taken before judgment is entered of which the respondent will have notice and thus an opportunity to challenge the determination before judgment is entered. What must be filed in a court of competent jurisdiction in order to obtain and enforce a judgment for a debt, is an “adjudication certificate”: s 25(1). An adjudication certificate can only be obtained where the respondent has failed to pay the amount as adjudicated, within the period provided: s 24(1). The obligation to pay runs from a date occurring at least five business days after the date on which the determination is served on the respondent: s 23. The fact that the statute does not preclude a respondent seeking, by other proceedings, to prevent the registration of judgment before it occurs indicates that there is no clear intention to prevent review of the adjudicator’s determination.

87 Thirdly, that which is the subject of the prohibited challenge, in proceedings to have the judgment set aside, is limited to “the adjudicator’s determination”. That is not a defined term, but its meaning is readily gleaned from s 22. Thus, s 22(3) provides that the adjudicator’s determination must be in writing and must include “the reasons for the determination”. Section 22(1) specifies what the adjudicator “is to determine”: the matters identified are the amount of the progress payment (if any), the date on which the amount became or becomes payable and the rate of interest payable on such an amount. It is at least arguable that the constraint imposed by s 25(4) is limited to a challenge to those matters. (The scope of s 22(1) is also relevant to the question whether the adjudicator is empowered to determine the existence of necessary preconditions to the adjudication; if the adjudicator’s power extends so far, it is arguable that, at least by implication, the “adjudicator’s determination” may include such matters and thus those matters would fall within the area unavailable for challenge.)

252 As to “tribunals exercising governmental powers”, the Court referred to three decisions:

(1) R v Electricity Commissioners ; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171;

(2) Ridge v Baldwin [1964] AC 40; and

O’Reilly v Mackman

253 In the first of those cases, Atkin LJ said at 205:

Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs [of prohibition and certiorari].

254 In Ridge, Lord Reid discussed the test propounded by Atkin LJ at 74 to 79, and concluded that a body could be amenable to prohibition or certiorari even if it did not have a duty to act judicially. That was confirmed in O’Reilly by Lord Diplock at 279. His Lordship spoke of statutory tribunals or other bodies of persons “having legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals”. He said of such tribunals or bodies:

Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness…

255 In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock said at 408 that for a decision to be amenable to judicial review, it must have consequences which affect some person, or body of persons, other than the decision-maker. It could do so either by altering the rights or obligations of people, enforceable by or against them in private law, or by depriving them of some benefit or advantage.

256 It follows that the test to determine whether a tribunal is one exercising governmental powers (to use the words of the High Court in Craig at 174–175), is whether it has legal authority – authority conferred by legislation – to determine, or affect, the common law or statutory rights or obligations of individuals or groups of individuals. I agree with the conclusion, to that effect, expressed by Vickery J in Grocon Constructors at [48].

257 Further, in my view, adjudicators are vested with legislative authority to decide legal rights and obligations. The following features of the Security of Payment Act support that conclusion:

(1) although the right to a progress payment may be contractual, the enforcement of that right through the process of adjudication is entirely a creature of statute;

(2) Disputes constituted by a payment claim and payment schedule are referred to adjudication. The adjudicator is in effect appointed by acceptance of the reference from an authorised nominating authority. Authorised nominating authorities gain their authority to nominate from appointment by the Minister (s 28(1)). It is the duty of authorised nominating authorities to refer adjudication applications made to them to an eligible adjudicator (s 17(6)).

(3) The power of the adjudicator to determine comes from acceptance of the reference, which is “taken” to constitute appointment, and making a determination of the kind authorised by s 22(1).

(4) The obligation to pay the amount determined by the adjudicator – the adjudicated amount – is imposed by s 23(2).

(5) Non-payment of the adjudicated amount leads to the availability of other remedies, including the issue of an adjudication certificate and suspension of work (s 24(1)).

258 In addition, the decisions of adjudicators create issue estoppels within their field of operation, as the decision of this Court in Dualcorp establishes.

259 In short, the Security of Payment Act gives to an adjudicator legal authority to make a binding determination as to an entitlement to a progress payment. The limited finality of that decision, considered in conjunction with the issue estoppels that it creates, has a real and present effect on the legal rights of the claimant and the respondent. The claimant is not entitled to more than the adjudicated amount, and may be estopped from asserting any different entitlement, in respect of the same payment claim, in a subsequent payment claim. The respondent is bound to pay the adjudicated amount, and is estopped from denying liability for it in respect of any subsequent payment claim. All of those consequences follow from, and only from, the Security of Payment Act.

260 I return, for a moment, to the question of whether amenability to prohibition or certiorari requires, among other things, that the decision maker be subject to a duty to act judicially. As I indicated at [254] and [256] above, that does not form part of the test. Spigelman CJ and Basten JA have dealt with this question more fully at [9] to [19] and [82] to [84] respectively above. I agree with their Honours’ analyses.

261 It follows, in my view, that the determinations of adjudicators are amenable to orders in the nature of certiorari.

262 Once that conclusion is accepted, it must follow that there is no basis for denying that, in an appropriate case, the Court may make an order in the nature of certiorari for jurisdictional error of law. There is no express provision in the Security of Payment Act denying the availability of certiorari. (I shall return to s 25(4)(a)(iii)). Nor, in light of the decision in Kirk, should the Security of Payment Act be construed as impliedly prohibiting the grant of certiorari for jurisdictional error of law.

263 Section 25(4)(a)(iii) operates in a very limited area. It applies only where:

(1) an adjudication certificate has been filed as a judgment for a debt in a court of competent jurisdiction; and

264 What may not be “challenged” is “the adjudicator’s determination”. That is the decision on the three elements referred to in s 22(1). If there is no judgment founded on an adjudication certificate then s 25(4)(a)(iii) has no operation, because there is nothing to set aside. Where there is a judgment founded on an adjudication certificate, it has an existence apart from the determination. As Hodgson JA said in Brodyn at 443[61], once the judgment has been given, it is not void, and does not become void, simply because the underlying determination is, or is declared to be, void.

265 An application for certiorari involves an assertion that the determination is void. If it is found to be void, it is void ab initio: it has never been, in law, a determination. Thus, as Hodgson JA pointed out in Brodyn at 437[41], “if the determination was quashed or declared void, reliance on there being no determination to support the judgment would not be to challenge the adjudicator’s adjudication within s 25(4): this wording assumes that there is a determination which is challenged”.

266 A challenge in independent proceedings, seeking relief in the nature of certiorari, is, of necessity, one to be brought in this Court. Even if the judgment had been entered in this Court, the challenge does not need to be brought in the “proceeding” in which that judgment is given. If the challenge succeeds, then the ground for setting aside the judgment is established. As Hodgson JA explained, in the passage just cited, the application to set aside would not involve any challenge to the determination: simply because in law there is not, and never has been, a determination.

First question: should the “determination” be quashed?

267 For the reasons that Basten JA gives at [105], it should not be assumed (as the first question does) that the adjudicator made a “determination… that he could hear and determine” Hamo’s adjudication application. It follows that question 1 should be answered in the way that Basten JA proposes at [108]. However, in circumstances where the substantive merits of the adjudicator’s reasoning as to s 17(2)(a) were fully debated, and bearing in mind the relatively small amount at stake, I would have concluded that this Court should go further, and consider whether or not to grant relief in the nature of certiorari. Since Spigelman CJ and Basten JA hold the view that the matter should be remitted to the Equity Division, I shall not pursue this. I do, however, wish to say something about s 69 and discretion.

268 Relief under s 69(1) of the Supreme Court Act is generally thought to be discretionary. Thus, in Aronson, Dyer and Groves, Judicial Review of Administrative Action (Thomson Reuters, 4^th Edition, 2009), the authors say at [12.155] that “[t]he court usually has a discretion to refuse certiorari and prohibition, even though the grounds have been established”.

269 Until recently, however, it was thought that there was no discretion to refuse prohibition or certiorari for jurisdictional error of law on the face of the record. (The distinction between prohibition and certiorari, and their differing areas of operation, do not need consideration.) See, for example Yirrell v Yirrell (1939) 62 CLR 287; Ex ParteFitzgerald; Re Gordon (1945) 45 SR (NSW) 182; GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503. It appears, however, that the proposition may not be capable of precise or absolute statement. For example, in Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558, Spigelman CJ said at 591[135] that “an order in the nature of prohibition is discretionary in all cases, but should issue “almost as of right””. His Honour repeated that formulation at 596[158].

270 Two considerations appear to have led Spigelman CJ to the view that prohibition is discretionary in all cases, but should issue “almost as of right” in a plain case of want of jurisdiction. The first was that recent decisions in the High Court had emphasised that the constitutional writ of prohibition is discretionary (see, for example, Re Refugee Review Tribunal;Ex parte Aala (2000) 204 CLR 82). However, that reasoning is based on considerations arising under s 75(v) of the Constitution. The second basis on which Spigelman CJ relied was s 69 of the Supreme Court Act. But in so far as his Honour relied on s 69, Mason P (who otherwise agreed with the reasons of Spigelman CJ) joined in the reservation expressed by Handley JA as to s 69. See Mason P at 597[160] and Handley JA at 601[184]. At the latter reference, Handley JA pointed out that, hitherto, s 69 had not been thought to alter the substantive law governing judicial review as it was exercised before the Supreme Court Act came into force.

271 The High Court granted special leave to appeal from the decision of the Court of Appeal in Solution 6 but the appeal was dismissed: Fish v Solution 6 Holdings Limited (2006) 225 CLR 180. The proposition that prohibition lies “almost as of right” for a clear jurisdictional error of law was not discussed.

272 Spigelman CJ returned to the topic in Yim v Industrial Relations Commission of NSW [2007] NSWCA 77. His Honour referred at [74] to the “almost as of right” comment in Solution 6 at [135], but did not elaborate on it.

273 The proposition that there is a discretion, even in the case of jurisdictional error of law, is supported by the judgment of Hope AJA in Director of New South Wales State Lotteries Office v Leonard (CA 285 of 1989, 18 October 1989, unreported; BC8901571). At BC10, Hope AJA (with whom Samuels and Priestley JJA agreed) concluded that the relevant tribunal had acted without jurisdiction and that its decision was invalid, and could be quashed. That left, his Honour said, the question of discretion.

274 Hope AJA said that the grant of relief under s 69 of the Supreme Court Act was governed by the principles that hitherto had governed the issue of prerogative writs: a matter of discretion. He noted that certiorari would lie for denial of natural justice, error of law on the face of the record and excess of jurisdiction. Although, his Honour noted, there had been a distinction between the grant of certiorari in the first two cases and the grant in the last, “even in this [last] case the power to grant the writ was discretionary”. His Honour relied on the decision of Gibbs CJ in the Queen v Ross-Jones (1984) 156 CLR 185, 193–195 (a passage considered by Spigelman CJ in Solution 6). Hope AJA noted that Gibbs CJ was dealing with a matter in the federal or constitutional area, and with prohibition rather than certiorari. Nonetheless, Hope AJA said, what Gibbs CJ had said “is… relevant to the exercise of discretion”.

275 To my mind, the decisions to which I have referred support the proposition that there remains a residual discretion not to grant certiorari (or to make an order in the nature of certiorari under s 69 of the Supreme Court Act), even in a case of clear jurisdictional error. I have no doubt that, in the ordinary case, an order would be made “almost as of right”. But to state the position thus is not to deny but, rather, to affirm the discretion, in an extraordinary case, not to make the order.

276 In this context, it is instructive to look at the history of the prerogative writs of certiorari and prohibition. In what follows, I draw (without further citation) on Appendix 1 to de Smith, Judicial Review of Administrative Action (Stevens and Sons Limited, Third Edition, 1973), and on the decision of the Appellate Division of the Supreme Court of Ontario in Rex v Titchmarsh (1914) 22 DLR 272 at 278–279.

277 Historically, certiorari commenced as a royal demand for information. The King wished to be “certified” of something, and thus ordered that the necessary information be provided to him. It was not limited to demands for information about proceedings in lower courts or tribunals, but was (at least in the 13^th century) used for administrative purposes as well.

278 The writ of certiorari was thus issued in the King’s name, and attested by his Chief Justice. In form, it required the information to be put before the King in his Court of Kings Bench; reflecting the fact that, at first in fact and later in theory, these and other matters in that Court were heard coram rege ipso: in the presence of the King himself.

279 The prerogative character of the writ of certiorari reflects at least two matters. The first is that it was intended to vindicate some prerogative of the Crown. The second is that, except at the suit of the Crown, the writ was not issued as of course; a subject had to show cause before the writ could be issued.

280 The practice developed very early of using the writ of certiorari to cause the record of an inferior court to be brought before the Court of Kings Bench for examination. If, upon such examination, it was found that the inferior court had acted beyond jurisdiction, that could be corrected. That was done because it was thought to be an affront to and contempt of the Crown that an inferior court (and, later, administrative tribunal) could usurp power by asserting a jurisdiction that it did not have. See, for example, Farquharson v Morgan [1894] 1 QB 552 at 556, where Lord Halsbury said that it was the function of certiorari to enable the Court to “protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction”.

281 The writ of certiorari has been abolished, and the power to grant relief in the nature of certiorari has been confirmed by statute. In those circumstances, it seems to me, the historical reasons that justified the proposition that there was no discretion to withhold certiorari in the case of an evident error of jurisdiction should be left in the history books. For as long as orders of certiorari were made pursuant to a writ, it might have been possible to rely on the form of the writ to assert that there was still a vindication of some prerogative of the Crown. But where there is now a statutory head of power to grant relief in the nature of certiorari by judgment or order, without the need for issue of a writ involving the Crown, discretionary considerations which developed originally from the conception of the writ as vindicating the Crown’s privileges should no longer govern the exercise of the power.

282 It is, I think, considerations of that sort which have led the High Court to recognise (as Spigelman CJ said in Solution 6) that the power granted to the High Court by s 75(v) of the Constitution varies to some extent from the common law power to make an order of certiorari pursuant to a writ.

283 In a sense, discretionary considerations are not relevant in this case because nothing has been put as to why, as a matter of discretion, an order should not be made if, as I have concluded, certiorari is in principle available and a ground for an order in the nature of certiorari has been made out. But it does have some ongoing relevance to the issue, in relation to s 27(3), discussed at [234] and [235] above. If there were a residual discretion to refuse certiorari even in the case of a clear jurisdictional error of law, then the Court would not be inhibited from availing itself of that discretion in a case where (for example) the respondent had been notified of the claimant’s intention to suspend work, but had refrained from taking any step to impeach the determination until after the claimant had in fact suspended work.

284 Another ground on which the discretion (if it exists) to decline to order certiorari may be exercised is where there are alternative and adequate remedies for the wrong of which complaint is made. Palmer J referred to this in Multiplex at [94]. If there is an alternative remedy, it would be the grant of declaratory and injunctive relief, by analogy with Brodyn. That would be as effective (but no more effective) than certiorari. But it would have precisely the same effect. The possible availability of injunctive relief, for jurisdictional error of law not amounting to breach of one of the basic and essential requirements identified in Brodyn, should not in my view distract the Court from granting certiorari where the grounds for relief of that kind are made out.

285 I have concluded that:

(1) compliance with s 17(2)(a) of the Security of Payment Act is a condition of the right to make an adjudication application pursuant to s 17(1)(b), and thus of the power of an adjudicator to determine that application;

(2) the adjudicator’s conclusion that the requirements of s 17(2)(a) had been satisfied in this case was plainly wrong, both on the facts found in this Court and (if relevant) the findings of fact made by the adjudicator;

(3) there was no valid adjudication application, and the adjudicator had no jurisdiction to make a determination;

(4) the Court may, and in an appropriate case should, grant certiorari to quash a determination that is vitiated by jurisdictional error; and

286 Those conclusions suggest that an order should be made quashing the determination, unless there is some discretionary reason why this should not be done

Second and third questions: the impact of the reasoning in

Kirk

on the reasoning in

Brodyn

; the proper construction of the

Security of Payment Act

287 I agree that the second and third questions should be answered in the way that Basten JA proposes at [108]. I agree with his Honour’s reasons for those answers, and also (subject to what I have said at [179] to [181] above) with the reasons given by Spigelman CJ.

Costs

288 In substance, Chase has succeeded on the questions that were removed into, and have been decided by, this Court. Whether or not it will follow from those answers that Chase is entitled to final relief, as sought in its amended summons, is yet to be decided. For those reasons, as between Chase and Hamo the costs in this Court should be Chase’s costs in the proceedings, but otherwise there should be no order as to costs. I propose costs orders accordingly.

**********

Citations

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190

Most Recent Citation

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308

WNA Construction Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17

Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42

Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2019] ACTCA 15

Cases Cited

97

Statutory Material Cited

13

Musico v Davenport [2003] NSWSC 977

Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140

Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129

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CITATION:	Chase Oyster Bar v Hamo Industries [2010] NSWCA 190
HEARING DATE(S):	2 August 2010
JUDGMENT DATE:	24 September 2010
JUDGMENT OF:	Spigelman CJ at 1; Basten JA at 62; McDougall J at 110
DECISION:	Question 1: Whether the determination of the Second Defendant (the Adjudicator) on 18 March 2010 that he could hear and determine the first defendant’s adjudication application pursuant to the Building and Construction Industry Security of Payment Act (the Act) should be set aside or quashed for jurisdictional error in circumstances where the adjudicator incorrectly concluded (on the facts found by him and on the facts subsequently found by the Court) that the notice required by Section 17(2)(a) of the Act had been served on the Plaintiff in the time required by the Act. Answer: The Supreme Court, in exercise of its supervisory jurisdiction: (a) has power to determine that – (i) an adjudication application has not been made in compliance with s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999; (ii) the determination of the adjudicator, made in the absence of a valid adjudication application, was invalid, and (iii) there was non-compliance in the present case; (b) has power to grant relief in the nature of certiorari and set the determination aside. Question 2: Whether in light of the decision of the High Court Kirk v Industrial Relations Commission [2010] HCA 1 the decision in Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 should not be followed or was incorrectly decided so far as it held that: a. the Supreme Court of New South Wales was not required to consider and determine the existence of jurisdictional error by an adjudicator in reaching a determination under the Act; b. an order in the nature of certiorari was not available to quash or set aside a decision of an adjudicator under the Act; c. the Act expressly or impliedly limited the Supreme Court of New South Wales’ power to consider and quash a determination for jurisdictional error by an adjudicator in reaching a determination under the Act. Answer: To the extent that Brodyn Pty Ltd v Davenport held, in relation to an adjudication application which was not in compliance with s 17(2)(a) of the Act, the matters set out in the question at a, b and c, it was in error. Question 3: Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator’s determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari. Answer: The Act contains no such limitation. Order that, as between Chase and Hamo the costs in this Court should be Chase’s costs in the proceedings, but otherwise there should be no order as to costs.
CATCHWORDS:	ADMINISTRATIVE LAW – judicial review – grounds of review – Building and Construction Industry Security of Payment Act 1999 – whether an incorrect determination by an adjudicator that a s 17(2) notice was served within the prescribed time amounts to jurisdictional error – whether Brodyn Pty Ltd v Davenport correctly decided. - ADMINISTRATIVE LAW – prerogative writs and orders – certiorari – Building and Construction Industry Security of Payment Act 1999 – whether determinations by adjudicators amenable to orders in the nature of certiorari for jurisdictional error – whether adjudicators are exercising a statutory function – whether there is a superadded requirement that an adjudicator is subject to a “duty to act judicially” before being amenable to prerogative writs. - ADMINISTRATIVE LAW – judicial review – privative clauses – Building and Construction Industry Security of Payment Act 1999 – whether the Act limits the power of the Supreme Court to review an adjudicator’s determination – whether such a limitation is permissible in light of Kirk v Industrial Relations Commission. - BUILDING AND CONSTRUCTION – security of payment – procedure for recovering progress payments – adjudication of disputes – Building and Construction Industry Security of Payments Act 1999 s 17.
LEGISLATION CITED:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Building and Construction Industry Security of Payment Act 1999 (NSW) Building and Construction Industry Security of Payment Act 2002 (Vic) Building and Construction Industry Payments Act 2004 (Qld) Constitution of Australia Evidence Act 1995 (NSW) Home Building Act 1989 (NSW) Industrial Relations Act 1996 (NSW) Judiciary Act of 1903 (Cth) Migration Act 1958 (Cth) Occupational Health and Safety Act 1983 (NSW) Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Attorney General (NSW) v Quin (1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian National University v Burns (1982) 43 ALR 25 Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; (2006) 67 NSWLR 9 Bread Manufacturers of New South Wales v Evans (1980) 180 CLR 404 Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 Brodyn Pty Ltd v Davenport [2004] NSWSC 254 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 Brown v Rezitis (1970) 127 CLR 157 Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 Burns v Australian National University (1982) 40 ALR 707 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 City of Yonkers v United States, 320 US 685 (1943) Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146 Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Director of New South Wales State Lotteries Office v Leonard (CA 285 of 1989, 18 October 1989, unreported; BC8901571) Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 Ex parte Toohey’s Limited; Re Butler (1934) 34 SR (NSW) 277; (1934) 51 WN (NSW) 101 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Farquharson v Morgan [1894] 1 QB 552 Fish v Solution 6 Holdings Limited (2006) 225 CLR 180 Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) [2009] VSC 426 Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129; (2006) 22 BCL 285 Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 John Holland Pty Ltd v Roads and Traffic Authority of New South Wales (2007) 23 BCL Kioa v West (1985) 159 CLR 550 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Laing O’Rourke Australia Construction v H&M Engineering and Construction [2010] NSWSC 818 Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 Manning v Thompson [1976] 2 NSWLR 380 (first instance); [1977] 2 NSWLR 249 (Court of Appeal); [1979] 1 NSWLR 384 (Privy Council) Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 1) [2004] NSWSC 826, (2004) 50 ACSR 554; (2004) 23 ACLC 84 Masu Financial Management Pty Ltd v Financial Industry Complaints Service Ltd (No 2) [2004] NSWSC 829; (2004) 50 ACSR 554; (2004) 23 ACLC 215 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 Minahan v Baldock (1951) 84 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 84 ALJR 369 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 84 ALJR 369 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 Minister for Local Government v South Sydney Council [2002] NSWCA 288; (2002) 55 NSWLR 381 Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 Musico v Davenport [2003] NSWSC 977 NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 O’Reilly v Mackman [1983] 2 AC 237 Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369 Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Port Arthur Shipbuilding Co v Arthurs [1969] SCR 85 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Queen v Ross-Jones (1984) 156 CLR 185 R v Connell; Ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407 R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864 R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 R v National Joint Council for the Crafts of Dental Technicians (Disputes Committee); Ex parte Neate [1953] 1 QB 704 R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 R v Panel on Take-overs and Mergers, Ex parte Datafin Plc [1987] QB 815 R v Wilson; Ex parte Robinson [1982] Qd R 642 Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Re Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76; (2001) 85 ALR 504 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Rex v Titchmarsh (1914) 22 DLR 272 Ridge v Baldwin [1964] AC 40 RJ Neller Building P/L v Ainsworth [2008] QCA 397 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 Salemi v Mackeller (No 2) (1977) 137 CLR 396 Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 State of Victoria v The Master Builders’ Association of Victoria [1995] 2 VR 121 Sydney Ferries Corp v Morton [2010] NSWCA 156 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Tasker v Fullwood [1978] 1 NSWLR 20 Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 United States v L.A. Tucker Truck Lines, 344 US 33 (1952) Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 Yim v Industrial Relations Commission of NSW [2007] NSWCA 77 Yirrell v Yirrell (1939) 62 CLR 287
TEXTS CITED:	M Aronson, ‘Jurisdictional Error Without Tears’ in M Groves and H P Lee (ed) Australian Administrative Law (2007) Cambridge University Press M Aronson, ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co P Craig, Administrative Law, 6th ed (2008) Sweet & Maxwell S A De Smith, Judicial Review of Administrative Law, 3rd ed (1973) Stevens and Sons Limited A M Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4 D M Gordon, ‘Relation of Facts to Jurisdiction’ (1929) 45 Law Quarterly Review 459 D M Gordon, ‘Observation of Law as a Condition of Jurisdiction’ (1931) 47 Law Quarterly Review 386 M Groves and H P Lee (ed) Australian Administrative Law (2007) Cambridge University Press J J Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 77 W Wade and C Forsyth, Administrative Law, 10th ed (2009) Oxford University Press
PARTIES:	Chase Oyster Bar Pty Ltd (First Appellant) Cheryl Fran (Second Appeallant) Paul Della Marta (Third Appellant) Hamo Industries Pty Ltd (First Respondent) Peter Finnane (Second Respondent) Attorney-General of NSW (Intervenor) St Hilliers Contracting Pty Ltd (Intervening Applicant) Dualcorp Civil Pty Ltd (Intervening Respondent)
FILE NUMBER(S):	CA 2010/076539
COUNSEL:	B DeBuse (Apellants) B D Hodgkinson SC / C A Bolger (First Respondent) Submitting Appearance (Second Respondent) M G Sexton SG, SC / J K Kirk (Intervenor) G Inatey SC / D A C Robertson (Intervening Applicant) M A Ashhurst SC (Intervening Respondent)
SOLICITORS:	Watson & Watson (Appellants) Fordham Lawyers (First Respondent) MBA Lawyers (Second Respondent) Crown Solicitors Office (Intervenor) Colin Biggers & Paisley (Intervening Applicant) Moray & Agnew (Intervening Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	2010/76539
LOWER COURT JUDICIAL OFFICER:	McDougall J
LOWER COURT DATE OF DECISION:	21 April 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Chase Oyster Bar v Hamo Industries [2010] NSWSC 332