Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd

[2018] NSWCA 107

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd [2018] NSWCA 107
Hearing dates:	10 May 2018
Date of orders:	10 May 2018
Decision date:	21 May 2018
Before:	Basten JA at [1]; Meagher JA at [19]; Barrett AJA at [42]
Decision:	1. Allow the appeal. 2. Set aside orders 1, 2 and 4 made on 7 March 2018. 3. Dismiss the summons filed 26 February 2018 with costs. 4. Order the first respondent to pay the appellant’s costs of the appeal.
Catchwords:	BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision –content of the reasons to be included in determination – where adjudicator concluded that contractual condition precedent to extension of time was not legitimate or workable because it depended on something happening under another contract – whether the determination failed to include the reasons for the determination – whether the adjudicator departed from the statutory function by so concluding
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 12, 22
Cases Cited:	Azriel v NSW Land & Housing Corporation (2006) 67 NSWLR 256; [2006] NSWCA 372 Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 92 ALJR 248 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379; 344 ALR 355 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 11 LGERA 181
Category:	Principal judgment
Parties:	Cockram Construction Ltd (Appellant) Fulton Hogan Construction Pty Ltd (First Respondent) Rosemarie Risgalla (Second Respondent)
Representation:	Counsel: M Christie SC, D Hume (Appellant) S Robertson, PF Santucci (First Respondent)   Solicitors: Vincent Young (Appellant) Maddocks (First Respondent)
File Number(s):	2018/81325
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2018] NSWSC 264 Date of Decision: 07 March 2018 Before: Ball J File Number(s): 2018/63885

Headnote

[This headnote is not to be read as part of the decision]

The appellant (subcontractor) issued a payment claim to the first respondent (head contractor) within the Building and Construction Industry Security of Payment Act 1999 (NSW). In response, the head contractor issued a payment schedule claiming contractual set off for amounts due as liquidated damages for delay. The subcontractor then applied for adjudication under the Act, claiming various extensions of time in answer to any set off. In so doing, it denied that the head contractor could rely on a clause providing that the subcontractor was entitled to an extension only if, amongst other things, the head contractor received an equivalent extension under the contract with its principal. The adjudicator’s determination of the claim included a conclusion that the subcontractor had established its entitlement to extensions of time, the clause not providing a legitimate or workable condition precedent as it relied on a contractual relationship to which the subcontractor was not a party.

The head contractor sought judicial review of that determination on the basis that the adjudicator had departed from her statutory function by refusing to apply the condition in the subcontract. The primary judge (Ball J) granted the relief on the basis that the adjudicator failed to give reasons for the conclusion. The subcontractor appealed against that decision.

Held, allowing the appeal:

Meagher JA, Basten JA and Barrett AJA agreeing (at [2], [18], [42]):

i.   As the impugned parts of the determination recorded a complete argument for the adjudicator’s conclusion, they could not support an inference that the adjudicator must have relied on some further reason not stated in the determination: at [35]–[36].

ii. The adjudicator’s obligation was to consider the contract in s 22(2)(b) of the Act, which required a process of evaluation sufficient to warrant that description. The process adopted by the adjudicator did not cease to do so merely because it included a conclusion that one provision of the contract was not to be applied, whether or not that conclusion proceeded from an error in construction or wrong understanding of the applicable law: at [40]–[41].

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248; Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228; Weal v Bathurst City Council [2000] NSWCA 88; (2000) 11 LGERA 181; Azriel v NSW Land & Housing Corporation (2006) 67 NSWLR 256; [2006] NSWCA 372 applied.

Basten JA:

iii. Section 22(3) of the Act requires that the determination include the explanation for the outcome which the adjudicator wishes to present, not a written account of the subjective process by which the determination was reached: at [6]–[7].

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 referred to.

iv. If the adjudicator’s conclusion cannot be challenged as legally erroneous, the reasoning cannot be challenged as legally inadequate to justify the conclusion. Even if it could be so challenged, the language of a decision-maker, who need not be a lawyer, nor legally trained, is not to be viewed through the prism of legal concepts: at [17].

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 applied.

Judgment

1. BASTEN JA: By orders made on 7 March 2018 a judge in the Equity Division (Ball J) declared that an adjudication determination dated 20 February 2018 was void. As a result, the respondent was not entitled to payment of a payment claim made by it under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”). On 3 April 2018 the payment claimant (Cockram Construction) commenced an appeal in this Court. The appeal was heard on 10 May 2018. At the completion of the hearing the Court made orders allowing the appeal, setting aside the orders made in the Equity Division and dismissing the summons brought by the respondent (Fulton Hogan).

2. The background to the matter and the relevant statutory provisions have been set out by Meagher JA, with whose reasons I have no disagreement. However, the matter can also be disposed of in the following way.

3. The primary judge held that the adjudicator’s determination was void because she failed to include “the reasons for the determination”, as required by s 22(3)(b) of the Act. [1]

   1. Fulton Hogan Construction Pty Ltd v Cockram Construction Ltd [2018] NSWSC 264 at [28].

4. In argument, the question whether the determination complied with s 22(3) was addressed by asking whether the reasons were “adequate” or “sufficient”. However, those epithets raised a false issue. The statutory question is whether the adjudicator gave “the reasons”, that is her reasons, for her determination.

5. A critical issue for the adjudicator was whether the subcontractor was entitled to an extension of time with respect to a number of items of work. A condition of that entitlement was that the contractor had received an equivalent extension of time under the head contract, pursuant to cl 22.2(e) of the subcontract. The adjudicator held that this was not “a legitimate condition precedent” because it relied upon a contractual relationship to which the claimant was not a party. The primary judge held that this was not “without more” a “proper basis for refusing to apply the clause.”[2] He further stated that it was “simply a matter for speculation why the Adjudicator thought that cl 22.2(1)(e) did not apply.”[3]

   2. Fulton Hogan at [25].

   3. Fulton Hogan at [28].

6. This reasoning not only placed a gloss on the language of s 22(3)(b) of the Act, but appeared to require the process by which the adjudicator rejected the condition as unworkable to be articulated. However, what the statute requires is not a written account of the subjective process by which the determination was reached. Rather, written reasons are an artefact; they are the explanation for the outcome which the adjudicator wishes to present. Articulating reasons may assist the decision-maker reaching a preferred outcome and may assist the parties to understand how the outcome was reached; those are bases for requiring reasons, but they are not preconditions of their existence.

7. As the High Court noted in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [4] in a case where reasons had not been provided, “the prosecutor does not seek mandamus, perhaps from a prudent apprehension of what may be the product of the proper discharge of the statutory duty.” [5] Where the decision-maker is a Minister, one may well expect the reasons to be prepared, or at least vetted, by senior legal advisors. That would not invalidate them, because they need not reflect the subjective process of decision-making, but rather the basis on which the Minister is content to justify his or her decision. Being an artefact, an incomplete account of the process decision-making does not prevent the product being properly classified as reasons.

   4. (2003) 216 CLR 212; [2003] HCA 56.

   5.    Palme at [41] (Gleeson CJ, Gummow and Heydon JJ).

8. Accordingly, speculation as to the true reasoning process of the decision-maker is irrelevant to the question whether the document produced constituted written reasons. The challenge to the determination based on non-compliance with s 22(3)(b) of the Act was misconceived.

9. The second issue, raised by the respondent on a notice of contention, was that the adjudicator failed to address her statutory function. That submission depended upon a reading of her reasons. Unlike the first issue, this was a legitimate ground of challenge. If the reasons revealed that a mandatory obligation was not complied with, the adjudication may be quashed. However, care must be taken in characterising any perceived error.

10. The particular complaint raised by the respondent was that the adjudicator had disregarded the terms of the contract. The point was expressed in various ways, with varying rhetorical emphasis.

11. The claim had substance if it could be said that the adjudicator failed to “consider” the terms of the contract in so far as they were relevant to an issue in dispute and relied on by a party. That is because s 22(2)(b) requires the adjudicator “to consider” the provisions of the construction contract from which the application arose.

12. However, there was no factual basis for this challenge. The respondent’s submissions in this Court expressly focused on the manner in which the adjudicator had addressed the contractual term relied on in the respondent’s payment schedule. It is self-evident that the adjudicator had regard to the relevant provision in the contract. She did not, in the language of the statute, fail to consider the contractual terms. Those terms were, in the language used in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[6] a relevant (that is mandatory) consideration. Nor was there any issue as to the weight to be given to the contractual term; it either applied, or it did not.

    6. (1986) 162 CLR 24 at 39 (Mason J); [1986] HCA 40.

13. The adjudicator construed the provision as not a valid precondition to the claimant’s application for an extension of time. By so holding, the respondent submitted the adjudicator had “put the contract aside” or “declined to apply” the contract. But that was no more than a rhetorical expression of strong disagreement with the construction of the contract adopted by the adjudicator. She may have been wrong in law, or she may have been correct. But assuming her approach involved legal error, that was not, of itself, a basis to set aside the adjudication. So much was held by this Court in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [7] upheld on appeal in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd. [8]

    7. [2016] NSWCA 379; 344 ALR 355.

    8. [2018] HCA 4; 92 ALJR 248.

14. The respondent sought to characterise the error as a refusal to apply the contractual term, which, if valid, precluded a relevant element of the claim. Indeed, as the respondent correctly contended, the adjudicator recognised that this was the effect of the clause if it were given full effect. However the respondent submitted that the adjudicator abandoned her statutory function and embarked on an exercise in extra-legal compensatory justice, which s 22, read in its statutory context, clearly prohibited.

15. This contention failed because it depended on an illegitimate assumption, namely that the adjudicator was wrong in law to treat the precondition as invalid. Legal error not being a basis for challenging the adjudication, it cannot be relied upon as an assumption underlying a challenge.

16. The respondent’s contention appeared to have one further element, namely that the adjudicator’s reasons did not in terms find that the precondition was legally invalid, because they neither used that phrase nor invoked any identifiable legal basis of invalidity, such as uncertainty or a contravention of s 12(2)(c) of the Act. Whether the adjudicator had such a reason was dismissed as illegitimate speculation.

17. This formulation of the argument cannot be accepted for two separately sufficient reasons. First, if the conclusion cannot be challenged as legally erroneous, the reasoning cannot be challenged as legally inadequate to justify the conclusion. Secondly, even if it could be so challenged, the language of a decision-maker, who need not be a lawyer, nor legally trained, is not to be viewed through the prism of legal concepts. The contention not only adopted a fine-tooth comb, an approach disapproved by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[9] but imposed a requirement of legally correct language. There is no such requirement in s 22(3) of the Act. Accordingly the respondent’s contention must be rejected.

    9. (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.

18. For these reasons, as well as the reasons given by Meagher JA, the orders referred to above were made at the conclusion of the hearing.

19. MEAGHER JA: This was an appeal from the decision of the primary judge (Ball J) in Fulton Hogan Construction Pty Ltd v Cockram Construction Ltd [2018] NSWSC 264. On 10 May 2018, at the conclusion of the hearing, the Court made the following orders and reserved its reasons for doing so:

1. Allow the appeal.

2. Set aside orders 1, 2 and 4 made on 7 March 2018.

3. Dismiss the summons filed 26 February 2018 with costs.

4. Order the first respondent to pay the appellant’s costs of the appeal.

20. What follows are my reasons for joining in those orders. They rest on a conclusion that the second respondent (the adjudicator) did not exceed or fail to exercise her jurisdiction under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) by not giving the reasons from her determination or by refusing to consider a provision of the construction contract. The circumstances giving rise to those issues may be stated briefly.

Background

21. The first respondent head contractor (Fulton Hogan) engaged the appellant (Cockram) to design and construct car parks at Manly Vale, Narrabeen and Warriewood by a major works subcontract dated 4 April 2017 (the Subcontract). On 12 December 2017, Cockram served a payment claim under SOP Act, s 13(1) for $12,606,129.29. In response, Fulton Hogan on 2 January 2018 served a payment schedule under s 14(1) certifying only $62,695.12 (excluding GST) as the amount it proposed to pay. Of the reduction, $1,603,000 was justified on the basis of a right to set off, under cl 23.5(2) of the Subcontract, two amounts due from Cockram: $928,000 as liquidated damages for delay, under cl 24.4(1); and $675,000 to indemnify Fulton Hogan for liquidated damages payable to its principal, Transport for New South Wales, under cl 24.5.

22. On 16 January 2018, Cockram applied for adjudication of its payment claim under s 17(1). Its 110-page application included claims to various extensions of time (EOTs) and denied that Fulton Hogan could rely on contractual provisions in answer to those claims. Those provisions included cl 22.2(1), which entitled Cockram “to an Extension of Time only if”, amongst other things:

(e)   the Contractor has received an equivalent extension of time under clause 10.10 of the Head Contract [with Transport for New South Wales]

23. Cockram submitted, rhetorically, “can the Respondent even attempt to rely on clause 22.2(1)(e) …when to do so would be relying on its own breach and failure to claim the same EOT under the Head Contract”.

24. On 24 January 2018, Fulton Hogan lodged its 99-page adjudication response under s 20. That response referred to Lahey Constructions Pty Ltd v Trident Civil Contracting Pty Ltd [2013] NSWSC 176 as a case “in which an adjudication determination was set aside on the basis that the adjudicator essentially ignored the terms of the relevant contract in making a determination in a claimant’s favour”. It asserted with respect to each of the claimed EOTs that “the scant reasoning provided by the Claimant in its Notice of Delay and EOT Claim: … failed to establish that the Respondent had been granted (or even that it should have been granted) an EOT under the Head Contract (noting the requirements of clause 22.2(1)(e)”.

25. On 20 February 2018, the adjudicator issued a 192-page purported determination under s 22(1). In considering Cockram’s claims to EOTs, it recorded Fulton Hogan’s submission “that the Claimant has no entitlement [to any EOT] as the Notice of Delay and EOT failed to meet the requirements of the contract as follows: … Failed to establish that the Respondent has been granted an EOT under the Head Contract, noting the requirements of clause 22.2(1)(e)”. It then recorded the following with respect to EOT 28:

EOT under the Head Contract – clause 22.2(1)(e): I do not consider that this is a legitimate condition precedent as it relies on a contract relationship, and the attendant obligations, to which the Claimant is not a party. Further, there is no information to suggest that the Respondent even sought an EOT from the Head Contractor’s Principal.

26. After recording the same submission made with respect to each other EOT, the determination similarly concluded:

EOT under the Head Contract – clause 22.2(1)(e): I do not consider that this is a legitimate or workable condition precedent as it relies on a contract relationship, and the attendant obligations, to which the Claimant is not a party. Further, it appears to require the Claimant to demonstrate that the Respondent has been granted an EOT in submitting an EOT for same issue when the Claimant has no way of knowing if the Respondent has even sought an EOT from the Principal of the Head Contract.

27. Finally, the determination recorded that the adjudicator was satisfied that the Claimant had demonstrated an entitlement with respect to each of the EOTs remaining in dispute and accordingly that the Claimant was entitled to the working days pressed for those EOT claims. The amount initially determined as payable, $8,189,348.54, was corrected under s 22(5) to $8,307,337.72 by an amended determination issued on 28 February 2018.

The decision below

28. By a summons filed on 26 February 2018, Fulton Hogan sought a declaration that the determination was void and, in the alternative, an order in the nature of certiorari quashing it. It also sought interlocutory and final injunctions against the taking of steps to enforce it.

28. Before the primary judge, Fulton Hogan challenged the adjudicator’s determination on two bases. First, it claimed that the adjudicator failed to perform her statutory function by not applying what she considered to be the correct construction of cl 22.2(1)(e) because the condition precedent was not “legitimate”: Judgment [10], [20]. Secondly, it claimed that the determination was irrational as to the valuation of a claim for preliminaries: Judgment [11]. His Honour rejected the latter claim, and the challenge to that rejection by ground 2 of Fulton Hogan’s notice of contention is not pressed.

29. In addressing the first claim, the primary judge recorded that, “as the argument developed”, whether the adjudicator failed to apply cl 22.2(1)(e) “merged into the question whether the Adjudicator gave adequate reasons for refusing to apply that clause of the Subcontract”: Judgment [22]. The primary judge considered it was “simply a matter for speculation why the Adjudicator thought that cl 22.2(1)(e) did not apply”. On that basis, his Honour concluded that the adjudicator had “failed to give reasons for a critical aspect of her decision”, which constituted a failure to comply with s 22(3)(b) (extracted at [33] below) and jurisdictional error: Judgment [28].

The appeal

31. By its notice of appeal, Cockram challenged the conclusion that any failure to comply with the requirement for reasons involved a jurisdictional error. Fulton Hogan supported the orders on two bases. Its primary position, supporting ground 1 in its notice of contention, was that the paragraphs extracted at [25] and [26] above recorded the adjudicator’s reasons for upholding Cockram’s claim for the EOTs and those reasons indicated a refusal to apply cl 22.2(1)(e) of the Subcontract and consequent failure to perform the adjudicator’s statutory function. In the alternative, and in answer to Cockram’s appeal ground, Fulton Hogan posited that, if those paragraphs did not manifest such a refusal, the adjudicator must have had additional and unstated reasons for upholding the claim to the EOTs and accordingly failed to comply with s 22(3)(b).

32. For reasons that will become apparent, Fulton Hogan’s case as ultimately made on appeal asserted a false dilemma, which is more readily exposed by considering the issues in the following order:

1. Whether the determination complied with s 22(3)(b) and, if not, whether it was invalid (the notice of appeal ground); and

2. Whether the adjudicator failed to perform her statutory function with respect to the condition precedent in cl 22.2(1)(e) (notice of contention ground 1).

The inclusion of reasons (notice of appeal ground)

33. Subsection (3) in SOP Act, s 22 provides:

(3)   The adjudicator’s determination must:

(a)   be in writing, and

(b)   include the reasons for the determination (unless the claimant and the respondent have both requested the adjudicator not to include those reasons in the determination).

34. Paragraph (b) in its terms only requires that the adjudicator’s determination “include the reasons for the determination”, not that the reasons so included be adequate according to any objective criterion. Confronted with that fact, Fulton Hogan conceded that the express requirement would be satisfied if the adjudication determination included the reasons that caused the adjudicator to determine as she did. I am content to proceed on the basis of that concession.

35. Fulton Hogan’s position on this ground was that the first sentence in each of the paragraphs extracted at [25] and [26] above and the conclusion paraphrased at [27] demonstrated the adjudicator’s failure to record the existence of some other reason critical to her determination. On their face, however, those parts of the determination recorded a complete argument for the conclusion that Cockram was entitled to each EOT notwithstanding that the condition precedent in cl 22.2(1)(e) was not satisfied. The stated minor premise was that the condition precedent depended on something happening under a contract to which Cockram was not a party. Its first major premise, also stated, was that such a condition is not legitimate or workable. And its second major premise, which the adjudicator plainly assumed to be obvious, was that the condition so characterised need not be satisfied to demonstrate the contractual entitlement.

36. Whether those major premises proceeded on a correct understanding of any applicable law is not to the point. Neither necessarily depended on any other, unstated proposition, derived from the SOP Act, the general law or elsewhere. Accordingly, these parts of the determination could not support an inference that the adjudicator must have relied on any further and unarticulated reason. In the absence of some other evidentiary basis for that finding, Fulton Hogan failed to make out non-compliance with s 22(3)(b). Whether the omission of any reason or reasons from a determination would constitute jurisdictional error does not arise, and the resolution of that hypothetical question of law would be inappropriate.

The consideration of the contract (notice of contention ground 1)

37. According to Fulton Hogan’s primary position, the reasons extracted above established that the adjudicator had construed cl 22.2(1)(e) as stipulating a condition precedent, but refused to apply that condition solely because, in her view, it was not “legitimate” or “workable”. Those reasons were said to be not merely erroneous in law, but “extrinsic to the contract”, associated with “general notions of justice”, and distinct from “contractually acceptable” reasons for not applying a contract (e.g. voidness for uncertainty). The adjudicator’s asserted refusal to apply what she considered “to be the true construction of the contract” for such reasons was then characterised as a departure from her statutory function: cf Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228 at [52] (Hodgson JA).

38. In my view, this argument did not fairly represent the adjudicator’s stated reasons. The descriptions as not “legitimate” and “workable” were themselves supported by the reasoning explained in [35] above. And those descriptions were capable of amounting to reasons for not applying a contract, notwithstanding that they included normative language which may or may not have corresponded to any established legal category.

39. More fundamentally, the argument does not allow for the extent of the authority conferred on the adjudicator by SOP Act, s 22, which relevantly provides:

(1)    An adjudicator is to determine:

(a)   the amount of the progress payment (if any) to be paid by the respondent to the claimant (the adjudicated amount), and

(b)   the date on which any such amount became or becomes payable, and

(c)   the rate of interest payable on any such amount.

(2)   In determining an adjudication application, the adjudicator is to consider the following matters only:

(a)   the provisions of this Act,

(b)   the provisions of the construction contract from which the application arose,

(c)   the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim,

(d)   the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule,

(e)   the results of any inspection carried out by the adjudicator of any matter to which the claim relates.

40. The adjudicator’s ultimate function is thus “to determine the amount and timing of a progress payment”: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248 at [80] (Gageler J). In performing that function, the adjudicator is bound “to consider” the matters in paras (a)–(e) of sub-s (2) and not “to consider” other matters: Hargreaves at [65] (Basten JA).

41. By its nature, the obligation in s 22(2) required “a process of evaluation, sufficient to warrant the description” as consideration in the particular context, and not mere “formalistic reference” to those matters: Weal v Bathurst City Council [2000] NSWCA 88; (2000) 11 LGERA 181 at [80] (Giles JA, Priestley JA agreeing); Azriel v NSW Land & Housing Corporation (2006) 67 NSWLR 256; [2006] NSWCA 372 at [49] (Basten JA, Santow and Ipp JJA agreeing). The process adopted by the adjudicator did not cease to warrant that description merely because it included a conclusion that one provision of the contract was not to be applied. That remained so whether or not that conclusion proceeded from an error in construction or wrong understanding of the applicable law.

42. BARRETT AJA: I joined in the orders of 10 May 2018 for the reasons given by Meagher JA.

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Endnotes

Amendments

22 May 2018 - Decision date corrected to date of reasons

Decision last updated: 22 May 2018