Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd

In the Supreme Court of New South Wales, Chase Oyster Bar Pty Ltd (Chase) sought judicial review of a determination made by an adjudicator appointed under the Building and Construction Industry Security of Payment Act 1999 (the Act). The dispute concerned an adjudication application made by Hamo Industries Pty Ltd (Hamo) for progress payments. Chase contended that the adjudicator had erred in finding that a notice required by section 17(2)(a) of the Act had been served within the prescribed time, arguing this constituted jurisdictional error.

The court was required to determine whether an adjudicator's incorrect conclusion regarding the timely service of a section 17(2) notice amounted to jurisdictional error, rendering their determination invalid. Furthermore, the court had to consider whether adjudicators, in exercising their statutory functions under the Act, were amenable to orders in the nature of certiorari for jurisdictional error, and whether the decision in *Brodyn Pty Ltd v Davenport* was correctly decided in light of subsequent High Court authority, specifically *Kirk v Industrial Relations Commission*. The court also examined whether the Act itself impermissibly limited the Supreme Court's supervisory jurisdiction.

The court reasoned that an adjudicator's failure to comply with a condition precedent to their jurisdiction, such as the proper service of a section 17(2) notice, constitutes jurisdictional error. The court affirmed that the Supreme Court possesses the supervisory jurisdiction to review such errors and grant relief by way of certiorari. It held that *Brodyn Pty Ltd v Davenport* was incorrectly decided to the extent it suggested that determinations under the Act were not subject to review for jurisdictional error or that certiorari was unavailable. The court found that the Act did not contain limitations inconsistent with the constitutional requirement for a State Supreme Court to grant such relief.

Consequently, the court determined that it had the power to quash the adjudicator's determination for jurisdictional error. The court ordered that Chase's costs in the Supreme Court proceedings be Chase's costs in the proceedings, with no other order as to costs.