Delmere Holdings Pty Ltd v Green

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	DELMERE HOLDINGS PTY LTD -v- GREEN [2015] WASC 148
CORAM	:	KENNETH MARTIN J
HEARD	:	13 MARCH 2015
DELIVERED	:	24 APRIL 2015
FILE NO/S	:	CIV 1090 of 2015
BETWEEN	:	DELMERE HOLDINGS PTY LTD Applicant
BARRY GREEN Respondent
ALLIANCE INFRASTRUCTURE PTY LTD Other Party
FILE NO/S	:	CIV 2758 of 2014
BETWEEN	:	ALLIANCE INFRASTRUCTURE PTY LTD Plaintiff
DELMERE HOLDINGS PTY LTD Defendant
Catchwords:

Public law - Error of law - Certiorari - Jurisdictional facts - Jurisdictional errors - Adjudicator under Construction Contracts Act 2004 (WA) - Broad or narrow jurisdictional facts - Misconstrual of statute - Misinterpretation of nature of function or extent of powers - Irrational or unreasonable conclusion - Unjust enrichment 'in equity' - Quantum meruit - Implied term

[2015] WASC 148

Legislation:

Construction Contracts Act 2004 (WA), s 3, s 6, s 25, s 26, s 31

Rules of the Supreme Court 1971 (WA), O 56

Result:

Application allowed

Certiorari issued

Category: A

Representation:

CIV 1090 of 2015

Counsel:

Applicant	:	Mr D S Ellis
Respondent	:	No appearance
Other Party	:	Mr C S Williams

Solicitors:

Applicant	:	Tottle Partners
Respondent	:	No appearance
Other Party	:	Solomon Brothers

CIV 2758 of 2014

Counsel:

Plaintiff	:	Mr C S Williams
Defendant	:	Mr D S Ellis

Solicitors:

Plaintiff	:	Solomon Brothers
Defendant	:	Tottle Partners

[2015] WASC 148

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

ABB Power Generation Ltd v Chapple [2001] WASCA 412; (2001) 25 WAR

158

ASIC v Edwards [2005] NSWSC 831; (2005) 220 ALR 148

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1

KB 223

Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014]

HCA 14; (2014) 307 ALR 512

Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269

Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd

[2012] WASC 304

Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24;

(1982) 149 CLR 337

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48;

(1992) 175 CLR 353

Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498

Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015]

WASC 60

Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA

43; (2008) 236 CLR 120

Hamersley Iron Pty Ltd v James [2015] WASC 10

Ideas Plus Investments Ltd v National Australia Bank Ltd [2006] WASCA 215;

(2006) 32 WAR 467

Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 3] [2014]

WASC 162

Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR

635

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21;

(1999) 197 CLR 611

Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
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

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32;

(2011) 244 CLR 144

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13;

(1980) 144 CLR 13

Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2]

[2013] WASC 161

[2015] WASC 148

Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC

172; (2011) 42 WAR 35

Re Scott Johnson; Ex parte Decmil Australia Pty Ltd [2014] WASC 348
Red Ink Homes Pty Ltd v Court [2014] WASC 52
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208

CLR 516

Saraceni v Mentha [2011] WASC 94
Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [No 2] [2012]

WASCA 53; (2012) 287 ALR 360

WQube Port of Dampier v Philip Loots of Kahlia Nominees Ltd [2014] WASC

331

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KENNETH MARTIN J:

Introduction

1 By O 56 of the Rules of the Supreme Court 1971 (WA) (RSC), the applicant in CIV 1090 of 2015, Delmere Pty Ltd trading as DTMT Construction (Delmere), seeks judicial review of, and orders absolute under a writ of certiorari to quash the decision of Mr Barry Green, made as a determination in his adjudication of a dispute under the Construction Contracts Act 2004 (WA) (CC Act) - in adjudication number 80751 of 11 December 2014 (Determination). That was an adjudication ostensibly rendered under s 31(2)(b) of the CC Act, the effect of which was to require Delmere to pay the Other Party, Alliance Infrastructure Pty Ltd (Alliance), $873,011.87 including GST (see page 621 of Ms Dini Gandhi's affidavit (Affidavit)).

Overview of the application for judicial review

2 Alliance's adjudication application emerged in the underlying context
of an elaborate written construction subcontract, entered into between Delmere and Alliance of 20 December 2013 (Contract). Pursuant to this agreement, which is accepted to be a 'construction contract' for the purposes of the CC Act, Alliance agreed to carry out the fabrication, supply, delivery to site and installation of piping, as part of plant piping and general infrastructure works at Cape Lambert, Western Australia (Affidavit pages 32 - 282). I will outline some relevant provisions of the Contract in greater detail below.
3 As noted, Delmere, by application of this court, seeks to quash by

writ of certiorari, or orders akin thereto under O 56 r 2(c), the
determination rendered by the adjudicator.

To that end, Delmere filed an application for judicial review on 22 January 2015, which identifies six grounds.

5 Delmere's application is actively resisted by Alliance. Mr Green, as
respondent, has played no part in these proceedings. By letter to the Supreme Court on 23 January 2015, he has (properly) indicated his agreement to abide by the court's decision in these proceedings: see R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13. Mr Green's written reasons culminating in his Determination are uncontroversially before me in the form of an annexure to the Affidavit (see Affidavit pages 619 - 649).

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Correlatively, Alliance, in a separate action CIV 2758 of 2014, moves for leave to enforce the Adjudicator's Determination under s 43(2) of the CC Act, which provides, among other things, that a determination may be enforced in the same manner as a judgment or order of the court to the same effect.

7              Nevertheless, it is clear that registration only delivers what is an
interim entitlement, as I explained in Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; (2011) 42 WAR 35 [59] - [60] (referring to the decision of Beech J in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19 [54], [93] and [100]). The nature of the task performed by adjudicators under the CC Act is essentially triage in its overall character. The party against whom a determination is registered and enforced may still proceed to have the full merits of the claims evaluated in litigation or arbitration.
8              Here, both parties pragmatically accept it is first necessary to
evaluate Delmere's challenges directed against the jurisdiction of Mr Green upon Delmere's application - before proceeding to consider any enforcement of his Determination as an order of this court (ts 2). Hence, if Delmere's application for judicial review and for a writ of certiorari to quash the determination currently favouring Alliance is upheld, there will be no surviving basis for Alliance's application to have the adjudicator's Determination registered and enforced as a judgment of the court. However, if Delmere's judicial review application fails then, absent some extraordinary, intervening circumstance, a registration of that Determination as an order of this court would usually follow.
9              To the end of determining Delmere's application to quash, it is of
course necessary to evaluate the precise grounds of that application, in the full context of the underlying circumstances that gave rise to the adjudication and then, the Determination itself. But before embarking upon that exercise, it will be convenient to provide a brief overview of the basis upon which Delmere now seeks to jurisdictionally impugn Mr Green's Determination.
10            The fundamental contention of Delmere is that Mr Green was never
jurisdictionally enabled to proceed with this adjudication at the behest of Alliance, as there was, at the time Alliance applied for adjudication, no relevant 'payment claim' issued by Alliance. Hence it is argued by Delmere that there is no relevant 'payment dispute' as between the parties arising under the construction contract that existed between them (see Delmere's written submissions pars 63 - 65).

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11            An absence of those fundamental elements, necessary to validly

commence an adjudication application under the CC Act, Delmere argues,
means that:

(1) there was no proper basis for Alliance to ever commence the
adjudication proceedings; and
(2) because those proceedings were commenced erroneously, Alliance's application ought to have been summarily dismissed by Mr Green - without proceeding to any determination of Alliance's claim on the merits; and
(3) these consequences follow, it is said, under relevant provisions of the CC Act, outlined in greater detail below (see Delmere's response to the application for adjudication at Affidavit pages 6 - 31).
12            In essence, Delmere contends Mr Green fell into jurisdictional error

by misconceiving his statutory function under the CC Act, in a number of
respects, including:

(a) accepting an engagement as an adjudicator absent any relevant 'payment dispute' and then proceeding with an attempted adjudication on the merits;
(b) denying Delmere procedural fairness by bluntly refusing to consider highly relevant materials which Delmere had properly put before him; and
(c) broadly speaking, approaching the overall task of evaluating the merits in such an irrational fashion as to vitiate his ostensible Determination that eventually issued, ultimately favouring Alliance (see Delmere's written submissions pars 4 - 5 and ts 3 - 4).
13            Of particular concern to Delmere, and by way of providing context

for the substantive reasons that follow, are three conclusions as expressed
by Mr Green in his Determination (paraphrased):

(a)

that changes by Delmere in the construction methodology for carrying out the works, including allowing Alliance access to the relevant site and in the ordering of how the works were to be completed by Alliance, may have caused it 'unjust enrichment

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and hence, a right in equity to be paid for such act or
circumstance'. (Affidavit page 636) (my emphasis);

(b) that a document which (only) Delmere had provided to Mr Green, and titled 'Invoice 024' (Inv 024), relevant to Delmere's objective of demonstrating that no 'payment dispute' had existed between Alliance and Delmere as at 7 November 2014, could not be considered in the adjudication - because that document had not been included as part of Alliance's submission to him (Affidavit page 633); and
(c) that Alliance was entitled to recover some of its costs associated with a prolongation in the duration of its works, under an expressed approach that the limited time in which Mr Green's Determination was required to be rendered was not of sufficient duration to 'undertake any detailed forensic analysis of the delay and disruption relating to [Alliance's] payment claim', but by him nevertheless proceeding to determine a quantum amount for the disruption encountered by Alliance (Affidavit pages 643 - 647).
14 It is now convenient to identify Delmere's precise grounds for its

challenges ultimately seeking certiorari, or relief akin to certiorari, to
quash Mr Green's Determination.

Grounds of challenge

Six grounds of challenge are invoked by Delmere under its application. They are outlined at par 5 of Delmere's written submissions:
[The] adjudicator made the following jurisdictional errors:

(1)

[the adjudicator] misconstrued the definition of 'payment claim' in s 3 of the [CC Act], wrongly proceeding on the basis that 'payment claim' includes a claim for unjust enrichment or in equity [Ground 1];

(2)

[the adjudicator] wrongly failed to consider the terms of the Contract between the parties, which was a matter he was required to take into account in determining whether there was a 'payment claim' under the Contract for the purposes of the [CC Act] [Ground 2];

(3)

[the adjudicator's] Determination involved serious irrationality or illogicality, in that the adjudicator made contradictory findings in relation to a letter dated 9 October 2014 [VC17] from Alliance to [Delmere], without giving any or any adequate reasons [Ground 3];

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(4) [the adjudicator] wrongly excluded from his consideration an invoice submitted by Alliance to [Delmere] on 10 November 2014 [being INV 024], which was included by [Delmere] as part of its response and, in doing so, he misconstrued s 26(2) of the [CC Act], failed to take into account a mandatory relevant consideration and acted under a misconception as to his function and role [Ground 4];
(5) [the adjudicator] failed to comply with s 32(1)(a) of the [CC Act] and failed to afford [Delmere] natural justice and procedural fairness, in that he failed to take into account [Delmere's] response, specifically:

(a) Invoice 024 and [Delmere's] submission that Invoice 024 was the relevant payment claim; and
(b) provisions of the Contract and arguments on the merits put forward by [Delmere] in its submission [Ground 5];
(6) [the adjudicator] failed to act fairly and afford [Delmere] natural justice and procedural fairness by finding that General Condition 37 of the Contract was unenforceable, without giving [Delmere] a reasonable opportunity to make submissions in respect of that conclusion [Ground 6].

16 There is no need to revisit again the state of the law in respect of the
CC Act and the very limited scope for challenge against an adjudicator's decision under the CC Act. I refer generally to my earlier reasons in Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd [29] - [41] and Red Ink Homes Pty Ltd v Court [2014] WASC 52 [66] - [92] as regards the policy of the CC Act. I also accept that no unduly technical or legalistic approach should be taken towards picking apart the reasons of an adjudicator, who frequently is a person without legal training and acting under a pressing time deadline. Nevertheless, where a clear jurisdictional error is shown in an adjudicator's decision, this court cannot turn a blind eye. Also see: Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319 [7] - [8] (McLure P) and [120] - [126] (Murphy JA, Martin CJ agreeing); Re Scott Johnson; Ex parte Decmil Australia Pty Ltd [2014] WASC 348 [52] (Beech J); WQube Port of Dampier v Philip Loots of Kahlia Nominees Ltd [2014] WASC 331 [8] (Chaney J); Hamersley Iron Pty Ltd v James [2015] WASC 10 [47] - [61] (Beech J); and Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 [23] - [24] (Mitchell J).
17 With Alliance's grounds of challenge now identified, I need to
discuss some provisions of the Contract central to this judicial review

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application, followed by rendering a brief chronology of the relevant
factual history to provide context to this application.

The Delmere/Alliance subcontract: General Conditions

18 The parties' Contract was uncontroversially included in the Affidavit
at attachment 'DG1' (pages 32 to 282). It comprises a formal agreement (Affidavit pages 34 - 42) plus General Conditions (GCs) identified as 'Rio Tinto, Iron Ore – Expansion Projects General Conditions For Construction Contracts (Rev 2010)' (Affidavit pages 43 - 85), and the contract specification (Affidavit pages 86 - 121). The Contract Price under the contract for the piping works to be carried out by Alliance was $3,350,625.05 (item 11, affidavit page 42).

The work to be performed is identified under the specification and comprised several portions.
The adjudication in this matter only concerned Separable Portion Five, being the construction of a water pipeline (Affidavit page 102).

21 Of particular underlying relevance to the adjudication, and now to
this application for judicial review, are GCs 34, 37, and 39, which I will address shortly. On Delmere's arguments these GCs are important, because it is contended, in effect, that they are an important part of the parties' construction contract and that they were effectively ignored in their effects by Mr Green, to Delmere's prejudice in the end result. It is worth noting GC 3(c) - which is an entire agreement clause.

General Condition 34: variation claims

GC 34 deals with variations to the Contract works (Affidavit pages 67 - 68). GC 34(a) provides:
The Engineer, during the performance of the Works, may by notice direct the Contractor to alter, amend, omit, reduce, add to or otherwise vary any of the Works on and from the date specified in the notice. The Contractor shall comply with the notice and shall be bound by the same conditions as though the contents of the notice and any variation thereby made were included in the Contract.

23 It provides a comprehensive mechanism by which the cost of a

variation may be added to or deducted from the Contract Price (GC
34(b)).
24 GC 34(d) provides for Alliance to deliver various notices or
documents to an Engineer pursuant to which the Engineer is required,

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within 10 days of the date of a variation being directed, to submit a statement to the Engineer advising of its opinion that there will be a difference in the contract price and the approximate value of the difference. GC 34(d) provides:
Within 10 days of the date on which the variation is directed, the Contractor shall submit to the Engineer a statement advising of its opinion (if any such opinion is formed) that a difference in Contract Price will arise as a result of the variation and shall advise the approximate value of the cost difference.

25            By GC 34(e) Alliance must, within 30 days of the date a variation is
directed, submit one of the following documents: either (i) a detailed statement of the cost of the variation; or (ii) a detailed statement of why the contractor is unable to submit a detailed statement of costs. If Alliance submitted a detailed statement addressing why Alliance was unable to submit a detailed statement of costs, then Alliance was obliged to submit a detailed statement of costs, as soon as possible after the expiration of the 30-day period.
26            Pursuant to GC 34(f), a failure by Alliance to comply with the time
limits as provided under GC 34(e) offered the Engineer the discretion to bar Alliance's variation claim under the Contract. The Engineer is required to make a decision about a variation claim submitted by Alliance as soon as is practicable after the claim is made (GC 34(g)).
27            Last, under GC 34(i), where the Engineer does not approve a

variation claim and Alliance and the Engineer are unable to agree upon the amount of the difference in cost, then the matter is deemed in dispute and to be resolved by another GC (that is, GC 57) addressing dispute resolution.

General Condition 37: extensions of time

28 GC 37 addresses the subject of extensions of time (EOTs) sought by
the subcontractor (ie, Alliance). Matters in respect of which an EOT can be sought are identified under GC 37(b). Those circumstances include a breach of the Contract by Delmere, a suspension of the works, or acts of God which are beyond the control of Alliance and which could not reasonably have been foreseen and overcome by Alliance.
29 Claims for an EOT are addressed under GC 37(d), by a specified
procedure under which such an EOT claim can be advanced. GC 37(c) provides that strict compliance with the process provided for in GC 37(d)

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is a precondition for an entitlement to an EOT. However, GC 37(h) grants
the Engineer an absolute discretion to extend time or otherwise.
30 It is unnecessary here to set out the detailed process specified for
seeking an extension as provided for by GC 37. However, I do note that pursuant to GC 37(e), an EOT is specified as the sole remedy for any delay or for any breach of the Contract on Delmere's part, other than for those rights which are expressly provided for in specified clauses of the Contract.

General Condition 39: Payment claims

31 The advancement of progress and payment claims by the
subcontractor is dealt with under GC 39. The process involves conferral with the Engineer and a requirement for the submission of a claim by the subcontractor providing specified information.

The Engineer is required to assess a claim for payment within 14 days and to issue a certificate for the amount payable.

33 Once a payment certificate has been issued by the engineer, Alliance
may then submit its invoice, in accordance with GC 45. Only after all these events transpire is Delmere then obliged to render a payment within 30 days after receipt of a correct invoice.
34 Importantly, it should be appreciated that under the General
Conditions the mere approval of a variation under GC 34 by the Engineer clearly does not at that point confer any entitlement to payment in the subcontractor. More things need to happen. If the submitted variation has the effect of increasing the scope of works, then work the subject of the variation must be carried out. If the extra price is earned by the performance of the variation work, then Alliance must still take steps to submit a claim for a progress payment for the performed variation work, in accord with GC 39.

Underlying Facts

35 From a chronological perspective, it is important to relate the

following unfolding events, leading up to Alliance's application to
Mr Green, invoking the CC Act:

9 October 2014

Mr Charles Stanger, on behalf of Alliance, writes to Delmere submitting what is identified by Alliance as

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its Variation Claim 017 (VC17) (see Affidavit pages 750 - 755). The subject matter line of the letter from Alliance begins 'Re: VARIATION CLAIM No 017'. The first line of the sentence reads: 'In accordance with the General Conditions of the Contract, clause 34(d), we submit the costs of this Variation to the contract.' (Affidavit page 750) (my emphasis). [As we have now seen, GC 34(d) addresses the issue of a submission to the Engineer by the subcontractor advising of the subcontractor's opinion about a pricing difference issue.] VC17 appears to be a detailed statement of the cost of a variation as per GC 34(e)(ii). The final three pages of the letter provide a costs estimate for the additional work that was carried out (Affidavit pages 753 - 755).

24 October 2014	15 days after VC17, Mr Peter Ting, Delmere's site manager, responds (negatively) to Alliance's variation claim, on behalf of Delmere (Affidavit pages 788 - 791).
27 October 2014	Mr D Roche, Alliance's representative under the Contract, communicates back in respect of the rejection by Delmere's Mr Ting of 24 October 2014 (Affidavit pages 793 - 799).
7 November 2014	Alliance issues and serves its adjudication application 80751 under the CC Act (Affidavit pages 697 - 707).

[It is important to appreciate factually that Alliance's adjudication application of 7 November 2014 did not provide the adjudicator with a copy of Inv 024].

21 November 2014

Delmere responded to the adjudication application (Affidavit pages 5 - 31). Neither party suggests that response did not meet the requirements of s 27 of the CC Act (nor did the adjudicator). It is apparent

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Inv 024 or a copy thereof was included in Delmere's response (Affidavit page 15).

None of the factual matters noted above presented as being at all controversial or at issue before me.

Fundamental requirements of a 'payment claim' and 'payment dispute'

37            From Delmere's grounds of challenge it is apparent that central to its
application seeking judicial review is the proper operation of the CC Act, particularly pt 3. That component of the CC Act sets down the infrastructure for appointed adjudicators to determine payment disputes arising under construction contracts and the appropriate procedure for doing so. To that end, it is necessary shortly to set out some key sections of the CC Act.
38            In the first place, however, I accept that it clearly is fundamental that
there needs to be a 'payment dispute' to engage pt 3 of the CC Act. Moreover, the payment dispute needs to 'arise under a construction contract', in order for a party to the construction contract to hold the standing to properly apply to have that payment dispute adjudicated by an adjudicator such as Mr Green in this case. I note that the long title to the CC Act provides, inter alia, that it is an Act (third dot point) 'to provide a means for adjudicating payment disputes arising under construction contracts' (my emphasis).
39            It is also clear that the chosen phrase 'under a construction contract' is relatively narrow in ambit. For instance, the terminology of a dispute 'in relation to', or surrounding a construction contract, is not the chosen terminology. The dispute must be 'under' the parties' construction contract. So, for instance, a claim in quasi contract, such as a quantum meruit claim seeking only a reasonable remuneration, such as where the underlying contract was uncertain, or had failed for some reason, would not present a dispute arising 'under' the construction contract for the purposes of the CC Act.
40            The fundamental requirement for there to be an underlying 'payment dispute' is therefore central to the CC Act's operation: see also the definitions of 'adjudication' and 'appointed adjudicator' working within pt 3 (s 24 - s 26 of the CC Act).
41            The fundamental importance of identifying an underlying 'payment
dispute', from a perspective of validly enabling the jurisdiction of an

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appointed adjudicator under the CC Act, is demonstrable from the text of
s 25 of the CC Act (in div 2 of pt 3). This section provides:
25. If a payment dispute arises under a construction contract, any party to the contract may apply to have the dispute adjudicated under this Part unless -

(a) an application for an adjudication has already been made by a party, whether or not a determination has been made, but subject to s 37(2); or
(b) the dispute is the subject of an order, judgment or other finding by an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract.

42 Section 26 of the CC Act likewise addresses the same essential
underlying requirement for a party to a construction contract to validly apply to have their 'payment dispute' adjudicated - by setting down various manner and form requirements including, importantly, that a written application for an adjudication be made within 28 days of the dispute (ie, the 'payment dispute') arising.
43 There has been prior judicial consideration in this State addressing
s 31(2) of the CC Act, and particularly s 31(2)(a), towards assessing the circumstances in which an appointed adjudicator must 'dismiss' an application - without proceeding to any determination (of the 'payment dispute') upon the merits. I do not assess any of these prior cases which are directed at s 31(2) as detracting from the acknowledgement as to a jurisdictional imperative of identifying a 'payment dispute' arising under a construction contract, for the purpose of properly engaging pt 3 of the CC Act, particularly in s 25 and s 26(1) of the CC Act. In Perrinepod v Georgiou Building, Murphy JA (with whom Martin CJ agreed) said at [83]:
Also, it is a 'payment dispute' which is intended to be the subject of adjudication under s 31 (see s 25, s 26, s 29, s 30 and s 31(2)(b))

I note that the term 'payment dispute' is defined by the CC Act under
s 3 as:
Payment dispute has the meaning given to that term in s 6;
In turn, a further reference to s 6 of the CC Act sees that term explained
(relevantly):
For the purposes of this Act, a payment dispute arises if -

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(a) by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed. (my emphasis)

45 Hence, it may be seen from those CC Act statutory definitions that
central to proper identification of a 'payment dispute' arising under a construction contract, is the embedded identification requirement for a 'payment claim', under the construction contract by a party.
46 Here, Alliance was the party articulating the existence of a 'payment
dispute' with Delmere, by reason of a submitted 'payment claim' for an amount which had not been paid to Delmere, by reason of Alliance's 'payment claim' being rejected.

The term 'payment claim' is also expressly defined, under s 3 of the
CC Act, as:
Payment claim means a claim under a construction contract -

(a) by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract (my emphasis)

48 Equally vital then to the necessary identification of the 'payment
dispute arising under' a construction contract, is the identification and articulation of a 'payment claim for an amount' (of money) under a construction contract. Importantly, it can readily be seen that the payment dispute and the underlying 'payment claim' must both arise under a construction contract.
49 My assessment of the terms of s 25 of the CC Act, by reference to its

text, context and purpose, identifies the following aspects as presenting as
necessary jurisdictional facts, namely:

(a)

existence of a construction contract (as defined in s 3 of the CC Act);

(b)

existence of a payment dispute (as defined under s 3 and s 6 of the CC Act);

(c)

existence of a payment claim by a party to a construction contract (in accord with s 3 of the CC Act); and

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(d) the (payment) dispute being as between the parties to the construction contract which 'arises under (their) construction contract'.
50 In the present case, there was no issue that the parties' relevant
construction contract is the written construction agreement entered as between Delmere as head contractor and Alliance as its subcontractor. That issue has never been at all contentious at any level between Delmere and Alliance.

By Alliance's submissions resisting Delmere's application for review and to quash the Determination, emerge the following facts (from pars 15, 16 and 17 of Alliance's written submissions):
15. As addressed in par 40 of [Delmere's] submissions [Delmere] and Alliance entered into a subcontract for the performance of work at the Cape Lambert Port Site (the Contract). The Contract was signed by Alliance on 1 February 2014 and by [Delmere] on 10 February 2014.
16. The Contract comprised a number of documents. These documents were

16.1 an Agreement;
16.2 General Conditions;
16.3 the Contract Specification;
16.4 drawings;
16.5 schedules; and
16.6 appendices.
17. The Contract provided for Alliance to undertake works generally described as including 'the fabrication, supply, delivery to Site and installation of piping including HDPE, carbon steel pipes, MMSCL pipes, supply and installation of fire hydrants, supply and installation of steel pipe supports, expansion of the CLB process water pump station, CLB water sewage vessel and other miscellaneous fittings, instruments and all other things that are or may be required to be performed by [Alliance] under and in accordance with the Contract [defined in aggregate by Alliance in its written submissions as the 'Works']. (footnotes omitted)

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The materials identified above comprising the parties' written contract were (properly) provided to Mr Green by Alliance, via s 26(2)(b)(i) of the CC Act.
52 Hence, as between Alliance and Delmere there was and is no
relevant argument here over the constituent components of, or the express written terms of what is, on any view, their detailed written construction contract, perfected as between them, at 10 February 2014.

Grounds 2, 3 and 4: missing jurisdictional facts

53            It was accepted by counsel for Delmere that there is a degree of
overlap, as between its grounds of challenge (ts 3). Grounds 2, 3 and 4 essentially overlap to the extent in contending, at root, that there was jurisdictional error by Mr Green, underlying his assessment that Alliance's submitted variation claim to Delmere VC17, of 9 October 2014, was also Alliance's 'payment claim' - for the purpose of generating a 'payment dispute', when that claimed variation was rejected by Delmere's Engineer, on 24 October 2014.
54            Central to Delmere's application seeking to quash the Determination
of Mr Green on a jurisdictional basis, is its argument that at the time when Alliance commenced application under the CC Act to have a payment dispute with Delmere adjudicated on (7 November 2014), that Alliance had not, at that date, articulated to Delmere any relevant 'payment claim' - seeking an amount of money to be paid to Alliance under their Contract (which is uncontroversially accepted to meet the description of being a 'construction contract', for the purposes of the CC Act).
55            In essence then, Delmere submits to this court, as indeed it says it
attempted to submit to Mr Green, that absent any existence of a relevant 'payment claim' to it by Alliance at 7 November 2014, there was no identifiable 'payment dispute', at that time. Consequently, there was never a basis for Alliance to legitimately invoke pt 3 of the CC Act as at 7 November 2014 - in order to have a payment dispute adjudicated.
56 It is correlatively then submitted by Delmere that s 25, s 26(1) and,
negatively, s 31(2)(a) of the CC Act, assessed in combination and properly understood, dictate a necessary conclusion that Mr Green was never jurisdictionally enabled to render a valid determination here, as between Alliance and Delmere - under their acknowledged written (construction) contract.

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57 Also buttressing Delmere's submission as to an absence of any
relevant 'payment claim' (and thereby the absence of any 'payment dispute') at 7 November 2014 is a further contention that prior to Delmere purporting to commence this application on 7 November 2014, purportedly under s 26 of the CC Act, that all Alliance had relevantly done vis-à-vis Delmere was to submit to Delmere the written VC17 document of 9 October 2014 - and which on its face was clearly expressed to be Alliance's claim to the Engineer for the approval of a variation (VC17 outlined above). VC17 is before me at pages 750 - 755 of the Affidavit. It is undeniable that VC17 on its face is expressed to be submitted pursuant to GC 34(d) of the GCs. I have already set out the text of GC 34(d) of the GCs in these reasons. Clearly, GC 34(d) does not deal with a claim by the subcontractor for a payment of money, at least at that point.

VC17 was before Mr Green, the appointed adjudicator. Alliance provided VC17 under s 26(2)(b)(ii).

59 Apart from the heading of VC17 clearly identifying itself as the 17th

variation claim of Alliance, it stated, as noted above, under its
commencing paragraph:
In accordance with the [GCs] of Contract clause 34(d), we submit the costs of this Variation to the contract.

60            As seen now, GC 34(d), upon examination, merely provides for the
subcontractor to submit to the 'Engineer' a statement to the effect that a difference in the Contract Price will arise as a result of a proposed variation and the approximate value of that cost difference.
61            It must be accepted then, factually, that the mere submission by
Alliance to the Engineer of a claim seeking a variation approval and expressly made pursuant to GC 34(d) did not, under the parties' contract, trigger any linked payment obligation under the GCs requiring Delmere to thereupon render any payment of any 'amount' (of money) to Alliance. That consequence is simply a matter of the grammatical comprehension of the GCs, which I have earlier discussed.
62            The GCs very elaborately dictate that if a submitted claim for a
variation is rejected, then certain consequences follow. On the other hand, if the Engineer accepts and approves a subcontractor's submitted variation, then various consequential entitlements to an eventual payment - via what is the typically orthodox monthly progress payment

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regime set down for a construction contract under its GCs - will be
enlivened.
63 As seen here, following Alliance's submission of VC17 on 9 October
2014, the Engineer, by writing on 24 October 2014, had rejected Alliance's application for an approved variation under GC 34(a) (Affidavit pages 788 - 791). There followed some correspondence about that rejection of its variation from Alliance on 27 October 2014 (Affidavit pages 793 - 796). All this material was provided to the adjudicator.

But when CC Act matter 80751 was begun on 7 November 2014, interestingly, Alliance's accompanying submission now proclaimed, in effect, that its VC17 of 9 October 2014 (as a matter of evident re-characterisation) had been a submission to Delmere of a 'payment claim', which had then been rejected by Delmere on 24 October 2014, giving rise to those parties' 'payment dispute' and thereby enlivening an adjudicator's jurisdiction to proceed under pt 3 of the CC Act.

65 So it was that Alliance's application for adjudication, expressed as
submitted pursuant to s 26(1), now sought, at this time (ie, 7 November 2014) to, in effect, re-brand VC17 as having not been its submission of a claim for a variation under GC 34(d).
66 By something of a 180 degree 'volte-face' Alliance at this time now
sought to re-characterise VC17 as something else entirely to what the document upon its face had called itself. Alliance now said of VC17 (Affidavit pages 706 - 707) to the adjudicator:
The Respondent required the works to be done differently or they required the Applicant to change the way in which they did the works. Therefore the requirements did not fall within the provisions of GC Clause 34 of the Contract. (my emphasis)

…
In the absence of express agreement between the Applicant and the Respondent as to what the Applicant would be paid for undertakings the Works, in the different manner instructed, directed or requested, the agreement reached between the Applicant and the Respondent contained an implied term that reasonable remuneration would be paid to the Applicant. (citations omitted)

67 An exercise in Alliance seeking to rebadge VC17 as no longer a
submitted variation claim under GC 34(d), but instead a claim upon Delmere seeking a payment under an implied term allowing Alliance reasonable remuneration, is audacious. In my view, it was something akin

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to an exercise in applying 'lipstick to a pig'. But the cosmetic disguise
appears to have worked.

The evident problem undermining Alliance's submission with respect to the change in character of VC17 is the clear words of VC17, particularly when read with an understanding of what the parties had provided for in GC 34(d) of their General Conditions. As earlier noted, the very subject line of VC17 is: 'Re: VARIATION CLAIM No 017' and the first line of the first sentence reads: 'In accordance with the General Conditions of the Contract, clause 34(d), we submit the costs of this Variation to the contract' (my emphasis). (Affidavit page 750). That all appears to have been ignored or pushed aside.

69            Further, even Alliance's response of 27 October 2014 to Delmere had
said, as part of the subject: 'GC Clause Notice 34 Variations'. On no less than three occasions in the letter of 27 October 2014 does Alliance refer to its 'claim', being a claim for a variation arising by way of GC 34. Nowhere in VC17, or its letter of 27 October 2014 does Alliance ever raise with Delmere its pursuit of a 'claim' arising by way of an 'implied term' seeking reasonable remuneration (nor upon what basis such an implied term capable of being reconcilable with the elaborate written terms of the parties' construction contract could exist).
70            Fundamentally, under its Grounds 2, 3 and 4, Delmere contends
Mr Green fell into jurisdictional error, by failing to have any proper regard to the terms of the parties' written contract (particularly the GCs), and then by his accepting of the recast VC17, as being a payment claim by Alliance. Delmere says that was fundamentally wrong and to such a degree that Mr Green must be seen to have been acting irrationally or illogically, in a Wednesbury unreasonableness sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).
71            The erroneous assessment of VC17 as a 'payment claim', when it
clearly was something else entirely, also involved, says Delmere, Mr Green radically misconstruing s 26(2) of the CC Act. Mr Green had expressed his view at [49] (third dot point) of his reasons (see Affidavit page 633), effectively eliminating from any consideration by him a document not put before him by Alliance, but (properly) put before him by Delmere - under Delmere's written response to the adjudicator made pursuant to s 27(2)(c). Brief recourse to this further document (Inv 024), had it been considered by Mr Green, would have buttressed Delmere's contention that this backdated invoice from Alliance (received by

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Delmere on 10 November 2014) was, in fact, Alliance's submission to Delmere of a payment claim, and clearly not the earlier VC17 - three days after Alliance had begun the CC Act proceedings.
72            A rational consideration of Inv 024 would then, it is said by Delmere,
have been fatal to Alliance's adjudication in a jurisdictional sense - as the evidence was that, albeit backdated upon its face to 9 October 2014, it was accepted that Alliance only submitted Inv 024 to Delmere under an email on 10 November 2014 (three days after Alliance had purported to commence its application for an adjudication under the CC Act, on the basis of an existence at 7 November 2014 of a payment dispute predicated upon an earlier rejected payment claim).
73            If Alliance's payment claim upon Delmere was submitted three days
after the purported commencement of the application for adjudication under the CC Act, then there had been, in truth, no payment dispute at all in existence when Alliance's application was issued to have a payment dispute adjudicated. The underlying absence of a payment dispute signalled again Alliance's failure to engage with s 25. This was also contrary to s 26(1). Correlatively, lack of a relevant payment dispute was a jurisdictional fact omission that would have required the dismissal of Alliance's application, and without Mr Green ever being enabled to proceed to a determination upon the merits, pursuant to s 31(2)(a)(ii) (on the basis that no application had been prepared or served by Alliance which was in accord with s 26(1) - absent any subsisting payment claim and thereby, absent a relevant payment dispute, at 7 November 2014).
74            It was contended by Delmere, in effect, that Mr Green's peremptory
and unreasoned refusal to even look at Inv 024 had seen him fundamentally misconstrue the CC Act. This refusal was also seriously irrational. The fundamental misconstruction of the CC Act entitlement of a respondent under the CC Act to put answering materials before an adjudicator via s 27(2)(c), and have them properly considered - encapsulated both a classic misapprehension of Mr Green's function and, as well, a denial of basic procedural fairness to Delmere.
75            In response to these challenges, Alliance raises essentially two main
submissions. First is that it is submitted that when Mr Green stated at [49] (third dot point): 'Invoice 024 is the payment claim, however, this should not be considered as it was not included within the Applicant's submission'; that Mr Green was not, in fact, stating he could not consider Inv 024 because it was not included in the Applicant's submissions. Rather, so Alliance submitted, Mr Green as a layman should be better

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understood to have meant, as Inv 024 was submitted to Delmere two days after the adjudication application arose, Mr Green could not consider Inv 024 - as it could not possibly be a payment claim for the purposes of the dispute (see ts 47 - 51). Hence, Mr Green then continued to determine the application on the basis that VC17 was Alliance's independent 'payment claim'.
76 That submission, by way of attempted rationalisation of Mr Green's
position, cannot be accepted. The clear face of the text of his reasons at [49] (third dot point) in Mr Green's determination informs that he said he did not claim to consider Inv 024, on account of it not being included within Alliance's application - a conclusion starkly at odds with s 26 and s 27 of the CC Act and a procedure for fairly adjudicating contested applications, as provided for in pt 3 of the CC Act.
77 Alliance's second submission did not address the basis upon which
Mr Green derived his conclusions. Rather it essentially advocated a 'hands off' review approach by the Court - given the limited circumstances in which it is open for this Court to review an adjudicator's determination. Alliance essentially addresses two issues by way of this submission. First, it invokes the status of an adjudicator effectively treated as akin to an inferior court, as opposed to a tribunal, applying the Craig v The State of South Australia dichotomy: see Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163. This may be accepted. Second, involves a characterising of missing jurisdictional facts Mr Green allegedly failed to determine, as being 'broad', as opposed to 'narrow' jurisdictional facts. That classification dichotomy thereby requires, so it is put, a different level of treatment by this court, as to whether or not it is appropriate to quash the adjudicator's Determination (see Alliance's written submissions pars 4 - 7). I will deal with each submission in turn.

Adjudicator as an inferior court

78 Alliance submitted at par 5 of their written submissions and in oral
submissions (see ts 38 - 39 and 66 - 67) that '[f]or the purpose of the distinction between administrative tribunals and inferior Courts, an adjudicator under the [CC Act] is to be treated as an inferior Court'. Alliance then submits that, if that proposition is true, an adjudicator's determination is not susceptible to judicial review for non-jurisdictional error, as per the explanation of that dichotomy provided in Craig v The State of South Australia. So much may be accepted: see my observations in Red Ink Homes. But a body with the status of an inferior court may still be reviewed for a jurisdictional error.

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Hence, it is necessary to consider the remaining limb to this
argument.

Jurisdictional facts and the Construction Contracts Act 2004 (WA): the broad or narrow dichotomy

80            Invoking Hamersley Iron, Alliance, by its written submissions, contends that the criteria expressed under s 31(2)(a)(i) to (iv) of the CC Act are jurisdictional facts, but in a 'broad', as opposed to the 'narrow' sense of that term (see Alliance's written submissions at par 6).
81            Hence, Alliance's submission is that the proper approach for this
court in determining whether such jurisdictional facts were established before Mr Green is not to evaluate for itself whether those facts, in actuality, had existed. Rather, it is said that in assessing the existence of a 'broad' jurisdictional fact, this court's review can only be directed to scrutinising the 'process of reasoning' adopted by an adjudicator (see Alliance's written submissions at par 6). In oral submissions, counsel for Alliance also sought to extend that 'light review touch' proposition beyond the four criteria used by s 31(2)(a)(i) to (iv) - to embrace other jurisdictional facts under the CC Act, in particular, towards the existence of a 'payment claim' and, thereby, of an underlying 'payment dispute'.
82            By reference to reasons of Pritchard J in Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304 at [79], Alliance submitted that any need to show a 'payment claim' and show a 'payment dispute' had, in effect, been picked up by s 31(2)(a)(ii). That provision requires an adjudicator to dismiss an application if 'the application has not been prepared and served in accordance with s 26'. Section 26 requires the existence of a payment dispute which, in turn, requires the existence of a payment claim.
83            Accordingly, Alliance, in effect, submits that if, as it contends, the
criteria in s 31(2)(a)(i) to (iv) are broad jurisdictional facts, the reviewed existence of a 'payment claim' or of a 'payment dispute' must also be approached as being broad jurisdictional facts as well.
84            Alliance next submits, by reference to review criteria as identified by
Beech J in Hamersley Iron at [54], that this court, as may be accepted, may only set aside the adjudicator's Determination if the adjudicator's decision:

(a)

was so unreasonable that no reasonable decision-maker could have reached the conclusion;

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(b) was reached by misconstruing the CC Act;
(c) took into account irrelevant considerations or failed to take into account mandatory relevant considerations;
(d) manifested serious irrationality or illogicality; or
(e) involved a misconception of the nature of the function which the adjudicator was performing.
85 It follows from Alliance's submissions then that it essentially argues
that whether or not a 'payment claim' and 'payment dispute' ever actually existed or not here can have no bearing upon whether or not this court should issue certiorari to quash Mr Green's Determination.
86 It is worth noting at this point that Delmere submits, essentially, that
Mr Green fell into a level of jurisdictional error so fundamental that the error is readily detectable upon review, whether or not the missing jurisdictional facts are characterised as 'broad' or 'narrow'.

It is necessary to examine the state of the law with respect to reviews concerning so-called 'broad' or 'narrow' jurisdictional facts.

Observations upon the legal nature of jurisdictional facts

88 In Perrinepod v Georgiou Building Murphy JA (with whom Martin CJ agreed) in addressing s 31(2)(a) of the CC Act at [97] and following, discussed the concept of 'jurisdictional facts'.
89 The discussion was in connection with the exercise of power under
s 31(2)(b) of the CC Act. His Honour observed at [97] that the term 'jurisdictional fact' had on occasion been used 'somewhat loosely', referring to Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120, [43]. There followed, in his Honour's reasons at between [98] and [111], a discussion of the term 'jurisdictional fact' and its deployment in different contexts. At [101], his Honour referred to a leading public law text, Aronson M, Dyer BD and Groves M, Judicial Review of Administrative Action (4th ed,

2009) . At [101] his Honour observed:
The learned authors refer to what might be described as the 'narrow' definition of a 'jurisdictional fact'.

[Referring to par [4.285] of that work.]

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90 Arising out of the 4th edition of the textbook appears to have
developed a classification nomenclature for a 'narrow' definition of a jurisdictional fact, as then was advocated and adopted by the learned authors. By contrast, the authors discussed as well the approach by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [130], noting his Honour's explanation of a jurisdictional fact in 'what may be regarded as the "broad" sense'.
91 Paragraph [102] of Murphy JA's reasons discusses the nomenclature
of the 4th edition of Aronson, Dyer and Grove. I notice the following passages concerning Eshetu in the 4th edition. The learned authors say at [4.285]:
There is no right or wrong definition, so it is important to understand that the way we use it is narrower than the way some others have used it. For example, Gummow J acknowledged that it might be 'awkward', but thought it 'convenient' in Minister for Immigration and Ethic Affairs v Eshetu to use the term even where the precondition to the decision's validity might be a mixture of fact and opinion, or even a pure opinion. Eshetu's jurisdictional fact was an opinion, namely, the decision-maker's satisfaction that an applicant satisfied the criteria for granting asylum. The normal criteria for reviewing subjective powers apply in such cases, so that the court does not decide for itself whether the applicant had indeed met the relevant criteria. A jurisdictional 'fact' in Gummow J's usage is in reality equivalent simply to a jurisdictional 'requirement', whether that be of law, fact or opinion. We use the term in the narrower sense of indicating a purely factual jurisdictional requirement.

92 In Perrinepod, both Murphy JA and McLure P had noticed a post-2009 discussion of jurisdictional facts, as was undertaken by the High Court in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144, [57] (French CJ) and at [107] - [109] (Gummow, Hayne, Crennan and Bell JJ). Note the discussion by Murphy JA at [106] and reference to the same passages by McLure P, at [10] of the President's reasons.
93 I would also note in passing the President's, orthodox as I would see

it, explanation in Perrinepod of the concept of a jurisdictional fact at [11],
in these terms:
Whether a criterion is a jurisdictional fact is a question of statutory construction. A consequence of characterising a fact as 'jurisdictional' is that it significantly enlarges the scope of judicial review. The court's judicial review power is confined to intervening when a decision-maker has made a jurisdictional error … Ordinarily, an error of fact does not give

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rise to a jurisdictional error and thus is outside the scope of the court's review power. Not so when a fact is jurisdictional. The court must be satisfied that a jurisdictional fact actually (objectively) exists. To satisfy a criterion of the type in s 31(2)(a)(iv), the decision-maker must actually have the requisite state of mind (satisfaction) for which there must exist reasonable grounds. (footnotes omitted)

94            Subsequent to those discussions about jurisdictional facts in
Perrinepod, there seems to have emerged, at least in Western Australia, something of a regular nomenclature characterisation exercise, as between what are to be addressed as either narrow or broad jurisdictional facts: see the observations by Pritchard J in Cape Range, by EM Heenan J in Re David Scott Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2] [2013] WASC 161 [78] - [88], by myself in Red Ink Homes at [89] - [91], by Chaney J in WQube Port of Dampier v Philip Loots of Kahlia Nominees Pty Ltd at [77] - [84], and by Beech J in Hamersley Iron at [52]. Mitchell J did not need to consider the broad/narrow jurisdictional fact characterisation dichotomy in Field Deployment Solutions at [39].
95            Sometimes it is very clear from underlying legislation referring to a
position reached by a decision maker that a prerequisite to some exercise of power is not a pure issue of fact. Hence, the terminology of that decision maker holding an 'opinion', or being 'satisfied' as to a particular state of affairs, may be used. Such language is a pointer that a subsequent judicial review should be focussed at the process of how an 'opinion', or a level of satisfaction required of the decision maker was attained, rather than scrutinising constituent components assembled to that end. Sometimes legislation dictates that the underlying component is readily identifiable as an objectively verifiable fact or event. Sometimes the position is unclear and then reasonable minds may diverge over the scope of a review exercise. At the end of the day the task of identifying a jurisdictional fact remains an exercise in statutory construction - necessarily taking account of the text, context and purpose of the underlying legislation.
96            In the present case, it seems to me, with respect to Alliance's
submissions, that the underlying challenge concerning the absence of any underlying 'payment dispute' (under a construction contract) is objective and factual and fundamental - irrespective of the chosen jurisdictional fact nomenclature, ie, 'broad' or 'narrow'. Either there was a payment claim at 7 November 2014 by Alliance or there was not. Either there was a payment dispute then or there was not.

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97 A broad/narrow judicial fact classification dichotomy exercise was
not deployed, as I read the reasons, either by French CJ, or by the plurality, in Plaintiff M70/2011. As I read those reasons, there also manifested as between French CJ and the plurality something of a mild degree of difference in approach, towards assessing underlying jurisdictional facts: see French CJ at [59], in contrast to the plurality at [109]. In this notoriously complex area that divergence in approach is no real surprise.
98 In the 5th edition of Aronson and Grove, Judicial Review of Administrative Action, published in 2013, the learned authors at [4.490], page 237, under a new heading, 'High Court Usage of "Jurisdictional Fact" Wider Than Ours', say:
We have said that our discussion of jurisdictional facts is premised upon a narrow definition. A fact can be jurisdictional on our definition only if it is a factual requirement. However, our definition has not caught on in the High Court, which freely extends the term to cover other conditions for validity, such as a decision-maker's opinion, satisfaction or belief. (footnotes omitted)

99 Those 5th edition observations conclude at fn 363, mentioning
various authorities including Eshetu. But significantly, there is a concluding footnoted reference to Plaintiff M70/2011 and to the respective discussions by French CJ and by the plurality, in passages of the authorised report 244 CLR 144 at pages 179 - 180 and 194 - 195.
100 Bearing those recent developments in mind, I would express a degree
of unease in proceeding too much further with any attempted application of a nomenclature characterisation as between broad and narrow jurisdictional facts - particularly in the present case, where Delmere argues, and I accept, that there is discernible jurisdictional fact error, applying either the broad or the narrow approach. I would render that conclusion in light of Murphy JA's observations in Perrinepod (with whom Martin CJ agreed) at [116] being rendered by way of his Honour's 'provisional observation' only, as regards s 31(2)(a)(iv) of the CC Act. I fully embrace and apply Murphy JA's observations at [117] where his Honour observed by way of contradistinction to s 31(2)(a), that:
The subject matter of s 25(a), on the other hand, sits in a different category.

Murphy JA in Perrinepod had referred to the mandatory (negative) requirement in s 25(a).

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102 In my view, a basal need for the demonstration of a 'payment claim'
and a 'payment dispute' (arising under a construction contract) are core, objective, jurisdictional facts, usually capable of being evaluated as to their existence (and particularly so here) objectively. This is not an occasion where any challenging issue of contractual construction arises. Towards that task, compare the observations of Pritchard J in Cape Range at [79], rendered in the different context of that assessment of the criterion under s 31(2)(a)(ii).

Conclusion: Grounds 2, 3 and 4

103 As I have said, my assessment of the terms of s 25 of the CC Act, by

reference to its text, context and purpose, identifies the following aspects
as presenting as necessary jurisdictional facts, namely:

(a) existence of a construction contract (as defined in s 3 of the CC Act);
(b) existence of a payment dispute (as defined under s 3 and s 6 of the CC Act);
(c) evidence of a payment claim by a party to a construction contract (in accord with s 3 of the definition of the CC Act); and
(d) the (payment) dispute being as between the parties to the construction contract which 'arises under (their) construction contract'.
104 Absent those fundamentals (which accord with the long title of the
CC Act and fully harmonise with s 26(1), (2) and s 31(2)(a)(i) - (iv) in pt 3 of the CC Act), the jurisdiction of an appointed adjudicator is not enlivened. See also the reasons of Mitchell J in Field Deployment Solutions at [39].
105 At this point, I also would respectfully refer to and adopt the

observations of EM Heenan J in Ellis; Ex parte Triple M Mechanical
Services at [83]. His Honour there observed:
If it emerges that the decision was made wrongly it remains, in my opinion, a decision within jurisdiction even though its consequences, as here, may be to exclude material which the Act contemplates would be taken into account. The decision to exclude that material in such circumstances was not made because its potential relevance has gone unrecognised or because no appreciation is made of the significance attached to such material in the statute itself but, rather, because of the

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mistaken decision, made within jurisdiction, about the time when the
material was served. (my emphasis)

106          In that decision his Honour was of the view that there may have been
an error of law. But it was not a jurisdictional error. That is not this case. Here the very considerations excluded in Ellis as not being problematic are, in my view, very much problematic.
107          For present circumstances, there has been, in my view, via Grounds
2, 3 and 4, a clear demonstration by Delmere of fundamental jurisdictional error by this adjudicator. This arose in his failing to recognise the potential relevance of significant material put before him by Alliance and his failure to appreciate the significance attached to that material under the CC Act itself.
108          The refusal to even look at Inv 024 betrays that Mr Green basically
misconstrued his function as an adjudicator under s 26 of the CC Act. As a result, he wrongly proceeded on to a determination of the application on a wholly incorrect and misconceived basis - that a payment claim then existed, and thereby that a payment dispute then existed.
109          Moreover, had Mr Green acted more rationally to look at and then
consider Inv 024, it would have been more evident that no payment claim had been submitted by Alliance to Delmere, at 7 November 2014. Mr Green would then have been required to dismiss Alliance's application, without proceeding further to consider its merits, pursuant to s 31(2)(a).
110          In other words, here no mere error within jurisdiction was made by
this adjudicator. Rather, the errors went to the very existence of his jurisdiction under the CC Act and then, as McLure P observed in Perrinepod at [12]:
[T]he non-existence of a jurisdictional fact invalidates any order, determination or other outcome flowing from the exercise of the relevant statutory power.

111 Consequently, orders absolute for certiorari must issue in the present
case quashing the adjudicator's decision. Correlatively, the application by Alliance in CIV 2758 of 2014 to register for the purposes of enforcement of Mr Green's Determination must be dismissed as being inappropriate.

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Residual grounds

112 Though strictly unnecessary to consider the remaining grounds of

challenge, I should render some brief comments with respect to the
residual grounds.

Ground 1: 'unjust enrichment' and 'a right in equity'

113          In order to explicate Delmere's challenge under Ground 1, it is
necessary to have regard to other aspects of Mr Green's Determination. The heading to par 59 of Mr Green's Determination is titled 'Merits', which indicates Mr Green will proceed, from that point on in his reasons, to consider the merits of Delmere's four 'contentions' listed in the immediately preceding par 58. One of those contentions is titled 'No Basis for Implication of the Implied Term'.
114          Paragraphs 60 - 70 of Mr Green's Determination proceed to analyse
the basis of Delmere's response to Alliance's claim that an implied term should be inserted into the Contract, which provides for 'reasonable remuneration' to be paid to Alliance for any 'change in methodology' (see par 61). Delmere's response, in short, was to argue that no basis for an implied term existed, owing to the express provisions of the Contract (see par 62). Mr Green then proceeds to analyse this 'contention', but not according to the analysis that would be expected if considering the possibility of an implied term but, rather, by an analysis more befitting consideration of whether or not a claim in quantum meruit existed - referring to the decision ASIC v Edwards [2005] NSWSC 831; (2005) 220 ALR 148 (which appears to be wholly unrelated to the issue of the existence of an implied term in a contract) three times (including a large extract, see par 64).
115          To appreciate the difficulty presented in determining on what basis
Mr Green actually reached his conclusion at pars 60 - 70 as to the existence of a payment claim, it is necessary to outline here paragraphs of Mr Green's Determination.
60.        The Applicant submits, in para 19 of its Application, that the Respondent required the works to be done differently, and that, this change in methodology, falls outside of the express provisions of GC Clause 34 of the Contract.
61.        Further, the Applicant states that in absence of an express provision, there is an implied term that reasonable remuneration would be paid to the Applicant for the change in methodology and cites the decision established in ASIC.

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62.        In paras 48 - 51 of its Response, the Respondent contends that there is no basis for the implication of the Implied Term as the Contract between the parties has express provisions governing the timing and method of claiming variations and payment, and that, the authority established in ASIC does not apply to this matter as there are express provisions in the Contract, namely, GC Clause 34 [Variation].
63.        Whilst I agree with the Respondent's contention, in part, regarding the operation of GC Clause 34 of the Contract, I also need to consider communications between the Applicant and Respondent in order to determine whether the Respondent provided any consent or acknowledgment of the change in methodology, being the act or circumstance which gave rise to the delay and disruption claim to which the payment claim relates, thereby causing unjust enrichment and hence, a right in equity to be paid for such act or circumstance. (my emphasis)
64.        At this point, I refer to the authority established in ASIC where Barrett J concluded at para 81:
'Case law indicates, in my view, that "incurring" is the act, omission or other circumstance which causes the company to owe the debt. In the present case… the situation was one in which [the company] … subjected itself to a liability for quantum meruit payments when, in response to its request, [the building contractor] … began work. From that point, [the company] … was party to a regime under which the performance of work by [the building contractor] … progressively generated rights for [the building contractor] … to be paid for that work.'

65.        GC Clause 34(a) of the Contract provides power to the Engineer [Respondent] to alter, amend, omit, reduce, add to or otherwise vary any of the works, and that, the Contractor [Applicant] shall comply with such notice.
66.        In considering the applicability of GC Clause 34 of the Contract in this instance, I am required to consider whether the Applicant has been prevented from performing its obligations under the Contract.
67.        It is evidently clear from the [refer Schedule M] Contract that the Applicant's Construction Methodology formed the baseline against which, any changes in methodology imposed by the Respondent are to be measured. I note that the full Construction Methodology has failed to be incorporated, however, I consider this to be a clerical error which has inadvertently taken place during copying/binding of the Contract.

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68.        I refer to correspondence issued by the Applicant on 2 May 2014 [refer file division 10 of the Application] in which, the Applicant offers its tender assumption that the Applicant's pricing was based on clear access to string out the pipes along the pipe line as they arrived on site. The Applicant also notes that additional handling has been required due to limited right of width and lack of track in which to access the work front.
69.        Restricted working does not appear to be a consideration in the Contract Specifications nor is there any express requirement for the Applicant to bear the risk of this type of working, and on that basis, I do not consider that the Applicant could have reasonably foreseen the delay events and provided for the inevitable risk of production losses and inefficiencies within its tender submission. This is evidenced by the relatively short [planned] duration of 15 days for HDPE pipeline works under Separable Portion 5 [refer file division 7].
70.       Based on the above, and notwithstanding the Applicant's compliance with GC clause 34 of the Contract, I am satisfied that the Respondent required the works to be done differently, and that, the Applicant should be entitled to reasonable remuneration for the change in methodology imposed upon the Applicant.

116 As seen, Mr Green made reference at several points in his reasons to
ASIC v Edwards, a first instance decision of Barrett J in the Supreme Court of New South Wales. With respect, that decision appears to have been deployed out of context. As I read ASIC v Edwards, it displays nothing more than a completely orthodox application of well accepted principle, concerning a claim for a quantum meruit payment - a claim pursued outside the parties' contract under the law of quasi contract in that scenario of the absence of a formal (building) contract: see [66] - [68]. The decision says nothing about an implication of a term into that party's contract. The claim in ASIC v Edwards was for a 'reasonable sum', or allowance. That case does not present any scenario of a claim for payment of an amount due under a (construction) contract: see [87] - [88].
117 A quantum meruit claim is clearly not a claim for a liquidated
amount falling due under a contract. In law, it is a creature of a very different character. And, of course, as the High Court determined in Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221, the underlying rationale for such a claim is not 'implied contract' as once thought, but rather lies in the concept of 'unjust enrichment'. That is not this case.

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118 Delmere submits Mr Green fell into serious jurisdictional error by
proceeding, in effect, on the basis that a 'payment claim' under the parties' construction contract, would include a claim by Alliance seeking unjust enrichment, or a 'right in equity'.

There are numerous problems apparent with the lay observations as expressed by Mr Green at this point.

120 First, the concept of unjust enrichment (see Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 (Deane J)) does not provide any stand-alone cause of action capable of being independently sued upon under Australian law. As most recently restated by the High Court in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 307 ALR 512 [74] (Hayne, Crennan, Kiefel, Bell and Keane JJ), by reference to Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498 [30] (French CJ, Crennan and Kiefel JJ) the position is:
More recently, Equuscorp Pty Ltd v Haxton confirmed that unjust enrichment does not found or reflect any 'all-embracing theory of restitutionary rights and remedies' … As this Court acknowledged in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662 at 673 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ], 'contemporary legal principles of restitution or unjust enrichment can be equated with seminal equitable notions of good conscience'.

121 Authority in support of that proposition under Australian law is
overwhelming and extensive: see Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 [70] - [75] (Gummow J); David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 [46] (Mason CJ, Deane, Toohey, Gaudron, and McHugh JJ) and [89] (Dawson J); Pavey & Matthews Pty Ltd v Paul [54] (Deane J); Muschinski v Dodds [49] (Deane J); Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635 [85] (Gummow, Hayne, Crennan and Kiefel JJ); Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 [85] - [98] (Gummow, Hayne, Heydon, Kiefel and Bell JJ); and in Western Australia specifically, see Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 3] [2014] WASC 162 [45] - [55] (Edelman J); Ideas Plus Investments Ltd v National Australia Bank Ltd [2006] WASCA 215; (2006) 32 WAR 467 [62] - [67] (Steytler P); Saraceni v Mentha [2011] WASC 94 [45] (Corboy J); and ABB Power

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Generation Ltd v Chapple [2001] WASCA 412; (2001) 25 WAR 158 at
[9] - [18] (Murray J).
122          Second, a quantum meruit claim by Alliance for a reasonable amount
would only arise, if it did, outside of these parties' construction contract, and not under it, as is required under part 3 of the CC Act, as we have now seen.
123          Third, a claim in quasi contract seeking a quantum meruit is also not
a claim to a 'right in equity' - such causes of action are wholly common law claims. Again, some (unspecified) type of equitable claim would not seem to be for an 'amount', arising under the parties' contract.
124          In an attempted rationalisation of what are prima facie highly
problematic reasons in this realm by Mr Green, Alliance submits by written submissions at par 28, that Mr Green's reasons in this regard were 'no more than an infelicitous use of language by a non-legally qualified adjudicator'.
125          To that end, it is argued that his statements, properly construed, are
to be understood to mean that Alliance's entitlement to payment actually does arise under the parties' construction contract - that is, Mr Green, it is argued, actually meant to say, better expressed, that Alliance's entitlement to payment arose from an 'implied term' found in the parties' construction contract, pertaining to Alliance's entitlement to reasonable remuneration for any changes to the contract 'methodology' (to be distinguished from the contract 'works') (see Alliance's written submissions at [33] - [35]).
126          It is, in my view, more than extremely difficult to determine what
Mr Green actually meant in the passages I have quoted above. Even allowing for the fact that Mr Green is not legally qualified, the incoherent conclusions he expresses with respect to 'unjust enrichment' and a 'right in equity', with regard to the peculiar circumstances of this application, are simply not possible, I conclude, to reconcile with the current state of Australian law. Ground 1 must be upheld on that basis alone.
127          I turn to Alliance's submission that Mr Green somehow concluded
that a term ought be implied ad hoc, into this elaborate construction contract, as to some estimated level of reasonable remuneration for Alliance - arising from its exposure to an altered work schedule and then claimed in VC17 - which, as we have seen, was originally labelled as the document under which Alliance's variation claim began, under GC 34(d).

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128 It would be in my view exceedingly difficult, in these parties' elaborately crafted contractual context, to find such an ad hoc implied term, as it is contended by rationalisation, that the adjudicator found. Any such implied term would need to meet all the well-known criteria, as set out by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337, 347 (Mason J):

(1) [the term] must be reasonable and equitable;
(2) [the term] must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(3) [the term] must be so obvious that 'it goes without saying';
(4) [the term] must be capable of clear expression; and
(5) [the term] must not contradict any express terms of the contract.

129 As now seen, there are, of course, elaborate express contractual
provisions with respect to the making of payment claims (GC 39), a provision providing for variations to the works (GC 34), a sole remedy EOT clause (GC 37(e)) with respect to breach or delay on the part of Delmere, and an entire agreement clause (GC 3(c)).
130 Given all that, how could any such term for a 'reasonable
remuneration' for extra expense suffered by Alliance by having its methodology of performing works under the Contract inhibited be found? Mr Green did not say. The contended implied term for a 'reasonable remuneration', would seem at minimum to contradict express payment terms of the Contract - violating the fifth of the Codelfa requirements.

131          Of course, Mr Green never attempted any level of analysis in his

reasons to find in the parties' Contract such an ad hoc implied term - other
than referring to ASIC v Edwards.
132          Even taking the kindest possible approach to Mr Green's reasons
above, he would have inexplicably, and therefore unreasonably, reached a conclusion (on Alliance's attempted rationalisation of his reasons), that an ad hoc implied term existed in the parties' Contract to allow a 'reasonable remuneration' payment to Alliance.
133          It also presents to me as fundamentally wrong that an implied term
solution (if that is what happened) could be derived, as some sort of estimated figure - rather than determining a precise 'amount' due under the contract. Any notion of, in effect, a quick 'stab' at something as an

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amount roughly reasonable to Alliance, to be sorted out later if there is any issue, is conceptually incompatible with the concept of a 'payment claim' for an amount (of money) due and payable under a construction contract. The CC Act may seek as a matter of policy to deliver a swift and simple remedy to parties under construction contracts who are wrongly kept out of funds due to them. But the CC Act only provides relief for amounts arising under the parties' contract - not for the allowing of idiosyncratic, general fairness claims rendered at large. The CC Act is not an unfair contract terms statute designed to strike down perceived unfair bargains or to deliver 'palm tree' justice.

Ground 1 also succeeds.
I would quash Mr Green's Determination on that basis as well, if
necessary.

Ground 5

136          Ground 5(a) of the application contends that there was a failure to
have regard to the contents not only of the application, but of Delmere's response (see s 31(1)(a)) where the response complies with the requirements of s 27(1)(c) of the CC Act.
137          The same issues concerning error, by Mr Green wholly ignoring the
force of Inv 024, arise under this alternative formulation. If Inv 024 had been looked at, the application ought to have been dismissed, without proceeding to a consideration of its merits. Given what I have already said about the significance of Inv 024 in its conjoined context with grounds 2 to 4, I do not address its stand-alone significance any further, other than to say that there would be a significant denial to Delmere of procedural fairness by Mr Green's peremptory refusal to even consider it as a clearly relevant document properly put before him by Delmere.
138          There were further merits arguments advanced under ground 5(b)
concerning the nature of the delay to the progress of the works being due to Alliance's own conduct, and not the fault of Delmere, by reason of Alliance failing to mobilise sufficient resources to site (Affidavit page 25) and to retain labour at site (Affidavit pages 25 - 26). Also asserted was Alliance failing to supply a polyweld machine (Affidavit page 25) and that limitations on access to site were not attributable to Delmere by reason of the force of cl 2.2.1 of the specification and GC 2 (a), (b), (c), (d) and (e) (Affidavit pages 26 - 27). These arguments, it is put, were not dealt with by Mr Green. Consequently, it is said that there was

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jurisdictional error in not even addressing them when they were properly
advanced.
139 It is not necessary to finally determine those ground 5(b) issues given

my findings above concerning ground 5(a) and the failure to consider Inv
024. Accordingly, I do not propose to deal any further with ground 5(b).

Ground 6

140 Ground 6 raised an alternative natural justice related challenge. It
contends for the general failure to afford procedural fairness. There is no challenge to the existence of that duty: see the criteria in Hamersley Iron. The essence of the grievance is Mr Green's expressed conclusion that GC 37(e) was unenforceable (Determination at [87]). This led Mr Green to decline to proceed on the basis that the clause 'could be seen' to be 'an act of prevention'. The grievance of Delmere is that Mr Green's conclusion as to unenforceability was not then live, in order to fairly allow Delmere to put a response to it to Mr Green. If it had been, Delmere argues it would have contended that the prevention principle as explained by the Court of Appeal in Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [No 2] [2012] WASCA 53; (2012) 287 ALR 360 [48] - [63] (McLure P) did not apply in the present case. This was because there was a sole remedy clause; alternatively, there was an EOT clause which permitted an extension of time in respect of default by the principal, referring to Hudson's Building and Engineering Contracts (12th ed, 2010) 6-030. The contention of Delmere is that a sole remedy clause or a 'no damage for delay' clause such as that identified under GC 37(e) is enforceable albeit strictly construed, referring again to Hudson at 6-084 and the text Pickavance: Delay and Disruption in Construction Contracts (3rd ed, 2005) [18.234] - [18.250]. It is contended that there was no justification in law for the approach of the adjudicator and, more fundamentally, that Delmere was not afforded proper procedural fairness, by being denied any opportunity to address such arguments - as they were never suggested as being live in the materials put to Mr Green as such argument could not have been reasonably anticipated by Delmere as a basis for Mr Green ultimately to decline to enforce GC 37(e) since that issue had not been raised by Alliance.
141 The argument raises a somewhat complex underlying factual analysis
of the underlying materials and arguments put to Mr Green. Alliance says that the issue was raised and should have been predicted by Delmere. I am not sufficiently persuaded that Delmere has made out a clear enough

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instance of a denial to it of procedural fairness, given the underlying clash
of perspectives.

Given my findings with regard to Grounds 1, 2, 3, and 4 above it is not necessary to resolve Ground 5 or Ground 6.

Conclusion

143          Accordingly, upon Grounds 1 to 4 being established, with
fundamental jurisdictional errors having been demonstrated, I would issue orders absolute for certiorari quashing Mr Green's Determination in adjudication application 80751.
144          Correlatively, the application by Alliance in CIV 2758 of 2014 to
register for the purposes of enforcement Mr Green's Determination must be dismissed. Moreover, even had I found myself, upon Alliance's review submission, inhibited from quashing the adjudicator's Determination, the various problematic considerations emerging out of my consideration of Grounds 1 to 4, would almost certainly have led me to stay Alliance's application for leave to enforce. I would have granted a stay on a basis of my satisfaction to a standard of an almost certainty that Delmere would have later overturned the Determination of Mr Green under a substantive litigation, or arbitration of those issues.
145          Delmere, as the successful party on the application, both in quashing
Mr Green's Determination and in resisting the correlative application to register and enforce that Determination as a judgment of this court, should, prima facie, receive its taxed costs upon both applications.
146          The parties should now confer with a view to the applicant's
solicitors filing a minute of proposed orders to give effect to these reasons within 14 days. To the extent that orders cannot be agreed, I will determine any residual disputation on the papers.

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Delmere Holdings Pty Ltd v Green [2015] WASC 148

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(1)	[the adjudicator] misconstrued the definition of 'payment claim' in s 3 of the [CC Act], wrongly proceeding on the basis that 'payment claim' includes a claim for unjust enrichment or in equity [Ground 1];
(2)	[the adjudicator] wrongly failed to consider the terms of the Contract between the parties, which was a matter he was required to take into account in determining whether there was a 'payment claim' under the Contract for the purposes of the [CC Act] [Ground 2];
(3)	[the adjudicator's] Determination involved serious irrationality or illogicality, in that the adjudicator made contradictory findings in relation to a letter dated 9 October 2014 [VC17] from Alliance to [Delmere], without giving any or any adequate reasons [Ground 3];

(b)	was reached by misconstruing the CC Act;
(c)	took into account irrelevant considerations or failed to take into account mandatory relevant considerations;
(d)	manifested serious irrationality or illogicality; or
(e)	involved a misconception of the nature of the function which the adjudicator was performing.

(1)	[the term] must be reasonable and equitable;
(2)	[the term] must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(3)	[the term] must be so obvious that 'it goes without saying';
(4)	[the term] must be capable of clear expression; and
(5)	[the term] must not contradict any express terms of the contract.

[2015] WASC 148

24 APRIL 2015