CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2)

In CPB Contractors Pty Limited v Celsus Pty Limited, the Federal Court was asked to decide whether a referee could be appointed to inquire into and report on non-arbitral issues, specifically whether the appointment would be impermissibly exercising the judicial power of the Commonwealth. The case involved complex disputes over delays and defects in the construction of the Royal Adelaide Hospital. The Builders sought to vacate temporary stays of their claims against the State and the IC and to appoint a referee to hold an inquiry and provide a report to the Court. The State and the IC opposed the application, arguing that there was a want of power to grant the relief sought and that even if there was power, a range of discretionary factors required the proposed course to be rejected.

The legal issues the court was required to decide were whether a referee, in exercising power pursuant to the suggested referral, would be impermissibly exercising the judicial power of the Commonwealth and whether the Court, in adopting or otherwise acting upon the report following an inquiry by the referee, would be acting inconsistently with its status as a repository of federal jurisdiction. The court considered the broader principle of the referee process in the specific context of the case, noting that the requirements of Chapter III of the Constitution could not be understood as a series of free-standing axioms taken from previous cases.

The court's reasoning and outcome were based on the specific legislation in question and the historical context in which it sits. The court found that the appointment of a referee was consistent with the facilitation of the overarching purpose of the arbitration and appropriate in the circumstances of legally complex allegations made of serious wrongdoing against the Crown. The application for lifting of temporary stays and appointment of referee was dismissed. The court also found that the second, third, and fourth respondents were to pay any costs associated with the constitutional issues agitated on the interlocutory application and that the balance of the costs of the interlocutory application was to be paid by the applicants.

The final orders of the court were that the interlocutory application be dismissed, that the second, third, and fourth respondents pay any costs associated with the constitutional issues agitated on the interlocutory application, that the balance of the costs of the interlocutory application be paid by the applicants, and that any application for leave to appeal be extended to the later of 14 days after publication of revised reasons for judgment or 7 February 2019.