Clough Projects Australia Pty Ltd v Floreani - [2018] WASC 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CLOUGH PROJECTS AUSTRALIA PTY LTD -v- FLOREANI [2018] WASC 101
CORAM:   TOTTLE J
HEARD:   28 FEBRUARY 2018
DELIVERED          :   10 APRIL 2018
FILE NO/S:   CIV 2976 of 2017
BETWEEN:   CLOUGH PROJECTS AUSTRALIA PTY LTD
Applicant
AND
NICHOLAS FLOREANI
Respondent
OCEANIC OFFSHORE PTY LTD
Other Party

Catchwords:

Judicial review - Application for writ of certiorari - Determination made by adjudicator under Construction Contracts Act 2004 (WA) - Whether adjudicator exceeded jurisdiction - Whether denial of procedural fairness - Where adjudication of multiple payment disputes between same parties - Where determination made on basis that implied contract arose outside of contract - Where determination made on basis not argued for by parties

Legislation:

Construction Contracts Act 2004 (WA), s 32(3)(b), s 32(3)(c)
Interpretation Act 1984 (WA)

Result:

Application granted

Category: A

Representation:

Counsel:

Applicant	:	Mr J M Healy
Respondent	:	No appearance
Other Party	:	Mr C P K Russell

Solicitors:

Applicant	:	HFW Australia (Perth)
Respondent	:	No appearance
Other Party	:	Baker & McKenzie (Victoria)

Case(s) referred to in decision(s):

Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304
Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Delmere Holdings Pty Ltd v Green [2015] WASC 148
John Holland Pty Ltd v Chidambara [2017] WASC 179
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 3] [2014] WASC 162
Liebe v Molloy [1906] HCA 67; (1906) 4 CLR 347
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 40

TOTTLE J:

Introduction

The applicant, Clough, applies for a writ of certiorari to quash a determination made by the respondent, an adjudicator appointed under the provisions of the Construction Contracts Act 2004 (WA) (the Act). The determination was made on 13 November 2017. The adjudicator determined that Clough should pay the Other Party, Oceanic, $465,658.[1]
[1] All figures have been rounded to the nearest dollar.
The principal issues are:
(i)Did the adjudicator have the power to adjudicate more than one payment dispute between the parties simultaneously without Clough's consent?
(ii)Did the adjudicator determine the payment disputes on a basis that was not argued by the parties, thus denying Clough procedural fairness?
(iii)Did the adjudicator exceed his jurisdiction by determining the payment disputes on the basis of findings that one or more implied contracts had been made between the parties?

Background

The background is not contentious and is as follows.
Clough and Oceanic entered into a lump-sum subcontract dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASC 101
Decision Date: 10 APRIL 2018

CaseChat Overview and Summary

The case involved Clough Projects Australia Pty Ltd, the applicant, and Floreani, the respondent. The matter was heard in the Supreme Court of Western Australia, where Clough Projects sought a judicial review of a decision made by an adjudicator under the Construction Contracts Act 2004 (WA). The primary dispute centred on whether the adjudicator had exceeded their jurisdiction and whether there had been a denial of procedural fairness in the adjudication process.

The legal issues before the court were whether the adjudicator's determination was valid, specifically focusing on whether it was based on an implied contract that arose outside of the main contract, and whether the adjudicator had made a decision on a basis that was not argued for by the parties. The applicant argued that the adjudicator's decision was flawed because it was based on a premise not presented by either party, and that this constituted a failure to provide procedural fairness.

The court found that the adjudicator had indeed exceeded their jurisdiction by making a determination on a basis not argued by the parties. Furthermore, the court held that this failure to adhere to the arguments presented by the parties resulted in a denial of procedural fairness. The court emphasised that an adjudicator must base their decision on the submissions made by the parties, and any deviation from this principle could lead to the annulment of the decision. The court granted the applicant's application for judicial review and quashed the adjudicator's determination.

Orders