Durham v Adjudication Registrar (No. 1) - [2016] QCAT 535

CITATION:	Durham v Adjudication Registrar (No. 1) [2016] QCAT 535
PARTIES:	Helen Durham (Applicant)
v
Adjudication Registrar (Respondent)
APPLICATION NUMBER:	GAR340-14, GAR108-15, OCR136-15, OCR137-15, OCR138-15
MATTER TYPE:	General administrative review

HEARING DATE:

4 May 2016

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

28 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. MTT2 is confirmed to the extent that it conforms to the terms of s 120 Building and Construction Industry Payments Act 2004 (Qld).

2. MTT1, the CPD Condition, the February 2015 General Conditions 2(f),(i),(j),(k),(m),(p),(q),(u) and (x) and the June 2015 General Conditions 2(a)(i),(c),(d),(e),(f),(g),(h),(i),(k),(l) and (m) are declared void.

3. The applicant is at liberty to file in the tribunal two (2) copies and serve on the respondent one (1) copy of any submissions in support of her application for costs, by:

4:00pm on 23 December 2016.

4. The respondent is at liberty to file in the tribunal two (2) copies and serve on the applicant one (1) copy of any submissions in response to the application for costs, by:

4:00pm on 20 January 2017.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – STATUTORY POWERS AND DUTIES – CONSTRUCTION – CONFERRAL AND EXTENT OF POWER – where the applicant applies for a review of the adjudication registrar’s decision to impose conditions on her registration as an adjudicator under the Building and Construction Industry Payments Act 2004 (Qld) – where the registrar has the statutory power to impose conditions he considers appropriate to give effect to the Building and Construction Industry Payments Act 2004 (Qld) – where the registrar also has incidental powers reasonably necessary for discharging his responsibilities – where the conditions must also be necessary to ensure an adjudicator’s effective performance of their functions – whether the decisions to impose conditions on the applicant’s registration were ultra vires – whether the reviewable decisions should be confirmed, are void or are liable to be set aside for invalidity

Acts Interpretation Act 1954 (Qld) s 20, 23, 32

Building and Construction Industry Security of Payment Act 1999 (NSW)

Building and Construction Industry Payments Act 2004 (Qld) s 7, 8, 21, 22, 23, 25, 25A, 25B, 26, 27, 28, 30, 31, 37, 38, 56, 57, 58, 59, 60, 62, 64, 65, 67, 70, 71, 74, 77, 79, 80, 81, 82, 93, 97, 102, 111

Judicial Review Act 1991 (Qld) Part 2, Part 5, Schedule 1

Building and Construction Industry Payments Regulation 2004 (Qld) Reg 2A, 3B; Schedules 1, 1A, 2

Queensland Building and Construction Commission Act 1991 (Qld) Part 4A

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, 19, 22, 24, 60

Altys Multi-Services Pty Ltd v Grandview Modular Building Services Pty Ltd [2008] QSC 26

Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1

Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421

Carbines v Powell (1925) 36 CLR 88

R v Connell, ex parte Hetton Bellbird Collieries (No 2) (1944) 69 CLR 407

Grech v Bird (1936) 56 CLR 228

Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83

McKinnonv Secretary, Department of Treasury (2006) 228 CLR 423

Minimax Firefighting Systems Pty Ltd v Bremore Engineering (WA Pty Ltd) & Ors [2007] QSC 333

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Saraswati v R (1991) 172 CLR 1

Shanahan v Scott (1957) 96 CLR 245

R v Toohey ex parte Northern Land Council (1981) 151 CLR 170

Water Conservation Commission v Browning (1947) 74 CLR 492

APPEARANCES and REPRESENTATION:

APPLICANT/APPELLANT A Crossland of Counsel and H Durham
RESPONDENT S Moody of Counsel instructed by J Stroud for the Adjudication Registrar

REASONS FOR DECISION

This is an external review of the adjudication registrar’s own confirmation of five decisions he made in 2015 imposing education, training, continuing professional development and other more general conditions on the applicant’s registration as an adjudicator under the Building and Construction Industry Payments Act 2004 (Qld) (Payments Act).
As a registered adjudicator, the applicant decides provisional liability for progress payments payable under a construction contract. The registrar has adjudicator-related registration and referral functions under the Payments Act.
It is common ground that the five reviewable conditions will be void for illegality unless they are reasonable and considered by the registrar to be both appropriate to give effect to the Payments Act and necessary to ensure an adjudicator’s effective performance of their functions.

The reviewable decisions

Insofar as they apply to her, the applicant disputes the legality, reasonableness, necessity and appropriateness of each of the registrar’s decisions to impose the contested conditions, which are referred to in the proceedings as:
·General Conditions – the set of conditions imposed on the registrations of adjudicators from time to time by the registrar, usually upon registration and/or renewal of registration. These have had numerous iterations; each replacing the immediately preceding version. For example, the general conditions imposed on the registration of some adjudicators in February 2015 (the February General Conditions) were superseded by 14 general conditions imposed on all registrations (the June 2015 General Conditions) predominantly aimed at registry efficiency and improving the adjudication process in practice.
For example, Condition 2(c) requires adjudicators to give a physical address for service in Queensland. Condition 2(d) requires adjudicators to accept the delivery of all adjudication applications electronically via Objective Connect, or by courier. Under condition 2(e), adjudicators must return certain forms after receiving an Adjudication Referral Kit within one business day. Pursuant to condition 2(f), adjudicators are to serve a notice of acceptance on the claimant and respondent to an adjudication application within one business day of receiving confirmation of acceptance form from the registry.
The operation of conditions 2(b) and (c) of the February General Conditions were stayed and one of the June General Conditions was amended, with others withdrawn.
·Mandatory Transitionary Training Conditions (MTT) – require completion of approved training courses (MTT) under MTT1 or MTT2.
i.MTT1 was imposed by the registrar on the registration of all adjudicators around August 27 2014. At the same time, adjudicators were also given a copy of two related documents, being a guideline titled ‘Mandatory Transitionary Training Condition Guideline’ (MTT Guideline) and an Information Sheet titled ‘Mandatory Transitionary Training for Adjudicators’. MTT1 expressly incorporated the MTT Guideline and required adjudicators to complete the course as directed by the registrar and set out in the MTT Guideline.
When the registrar imposed MTT1, planned amendments to the Payments Act were highly anticipated but had not yet been passed.
Some adjudicators (including the applicant) did not complete MTT1, and the registrar imposed MTT2 on them in 2015, which extended the period within which to complete the MTT within six months or so. This was intended by the registrar to replace MTT1.
The operation of MTT1 was stayed by consent on 19 February 2015 under s 22(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), but the parties disagree about whether it was intended or agreed to have permanent or temporary effect.
ii.MTT2 was imposed by the registrar on or about 3 June 2015 on the registration of those adjudicators who did not comply with MTT1 (including the applicant) under s 120 Payments Act after the applicant challenged MTT1. It stated that adjudicators must “successfully complete the MTT Course as prescribed by s 3B of the Payments Regulations” by 7 September 2015.
Despite some differences in the detail of the two conditions – for example, that “100% attendance and participation” is required in MTT1, while MTT2 is offered ‘by distance’ and includes participation questions – the registrar contends that they are virtually identical. Both were designed and presented by the same person, covered the same material in the same manner, and included identical pre-reading material, slides and exam. Two days of recorded seminar material from MTT1 forms the core of MTT2.
Between 6 May 2015 and the purported withdrawal of MTT1 on 2 June 2015 and its replacement with MTT2 on 3 June 2015, the registrar had regard to the 2015 AGR – including whether an adjudicator had completed MTT and their test scores – in making referral decisions.
The applicant, in fact, attended MTT2 on 9 October 2015.
The relevance to the review issues of the MTT course content that the applicant completed was ruled on at a preliminary hearing but revisited in final submissions. The applicant contends that the tribunal cannot properly conduct these proceedings without the content and delivery of the MTT course, because both rationally affect the condition’s objective reasonableness, necessity and appropriateness of the training conditions and, therefore, ignoring them would amount to specific discretionary error.
The registrar, by contrast, argues that neither of the MTT courses’ content nor method of delivery are relevant to the validity of the disputed conditions, because the applicant was not obliged to attend any particular course.
The training program envisaged by the registrar is mentioned in the MTT Guidelines by reference to elemental subject headings or coursework topics; not according to a detailed description of precisely who would be providing exactly what or how.
This review, limited to reviewing the legality and merits of the registrar’s decision to impose and confirm the training conditions, can be properly conducted without recourse to specific course materials. They have no relevance to issues the tribunal has jurisdiction to consider. Whether the course the applicant was directed to (or did) attend met the description of the registration conditions is outside the scope of the inquiry.
·CPD Condition – the “Continuing Professional Development (CPD) Condition” imposed by the registrar upon the registration of all adjudicators in May 2015 mandating successful completion of certain requirements in accordance with the “Continuing Professional Development for Adjudicators Guide” (CPD Guide). CPD provides adjudicators with the opportunity to develop their skills with a view to assisting adjudicator promotion from one grade to the next. The CPD Guide (the latest version of which was issued to adjudicators on or around 26 May 2015) requires adjudicators to obtain a minimum of 10 CPD points in a given CPD year.
The effect of the CPD, MTT2 and the June General Conditions were suspended until the tribunal reviewed them.
·Agency Condition – the condition imposed by the registrar on the registrations of all adjudicators in or around October 2014. On 22 October 2015, the tribunal ordered, with the parties’ consent, that it be set aside and the registrar pay the applicant’s costs of the review proceedings in respect of that decision.
The registrar says he decided to issue the reviewable conditions to “capture and clarify the new processes” introduced by amendments to the Payments Act in 2014 and “ensure that each and every adjudicator understands and effectively performs” his or her changed responsibilities in such a way as to enable the Registry to effectively perform its enhanced role in the adjudication process.
The applicant claims the registrar’s entire approach to the imposition of conditions is fundamentally flawed. She denies that he has any power to impose any of the reviewable conditions on the basis that they do not give effect to the Payments Act and could not be considered necessary for ensuring the effective performance of an adjudicator’s role.
She argues the reviewable conditions are all ultra vires because the registrar’s express or implied functions do not include the training or testing of adjudicators, establishing and administering common performance standards or a professional development regime, or quality assurance of any aspect of adjudication practices or procedures, nor the regulation of adjudication fees.
The ultra vires doctrine requires all official action including imposing registration conditions to be authorised by a regular law. As Aronson and Groves note, there is no such thing as absolute or unfettered power.[1]
[1]Mark Aronson & Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5^th ed, 2013) [3.30].
Statutory powers and discretions bestowed on subordinate administrative authorities are confined by the subject matter, intended purpose, policy goals and practical reach of the enactment conferring them.[2] A person cannot confer power on him or herself by misconstruing the extent of their authority to act.[3]
[2]Water Conservation Commission v Browning (1947) 74 CLR 492, 505.
[3]R v Connell, ex parte Hetton Bellbird Collieries (No 2) (1944) 69 CLR 407, 430.
The legality of an exercise of official power is determined by looking at the enactment and its scope and object in conferring the discretion in question. Every statutory discretion must be used consistently with its “internal logic”[4] which defines its intended function and limits. Straying beyond the express or implicit limits of statutory power by doing something more than it permits or less than it demands nullifies the end result.
[4]Justice Robert French, ‘Administrative Law in Australia: Themes and Values’ in Matthew Groves and HP Lee (eds), Australian Administrative Law – Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 19.

The tribunal’s role

The tribunal derives its review jurisdiction jointly from s 97 Payments Act and s 17 QCAT Act. It is not tasked with merely reviewing for errors of law, but conducting a full review of the legality and overall merits of each reviewable decision or condition. The correct and preferable decision depends on the limits set by the Payments Act on the registrar’s power to impose conditions on adjudicator registrations.
In performing its role, the tribunal ‘stands in the shoes’ of the registrar and decides the issues for itself as at the review date on the materials before it. This is significant because when and on what a validity of a reviewable decision is examined determines the nature of the remedial powers and discretions available to the tribunal. Having regard to the nature of the reviewable conditions, the source of power for making them and achieving finally between the parties, I think their legality should be determined on the basis of the past rather than the present circumstances; that is, when they were made not now.
The tribunal may confirm, or, if it reaches a different conclusion from the registrar’s or considers there is a better way of exercising the discretion, amend or substitute it any or all of the reviewable decisions and either make substitute orders of its own or remit the matter back to the registrar for reconsideration.[5] However, as the questions for the tribunal are the same as those the registrar faced, the answers he gave should not be overturned or varied unless a different view is taken of the law or its application to the facts or that there is a more preferable way of exercising the discretion to impose registration conditions.
[5]QCAT Act s 19.
Whatever the tribunal decides, it is taken to be the original decision. If a belief or degree of satisfaction is required for exercising a discretion, it is the tribunal’s, not the registrar’s, that counts and, subject to any contrary order, takes effect retrospectively – that is, when the reviewable decisions took effect.[6]
[6]Ibid ss 24(2).
The registrar submits there is no practical utility in conducting the merits review of MTT1 for the purpose of making the ‘correct and preferable’ decision on the material before it because it no longer applies to the applicant’s registration and she is not at risk of being penalised for non-compliance since completing the MTT2 course. He says MTT1 is redundant and of no ongoing effect and “ceased to apply” as a condition on the applicant’s registration from 2 June 2015 when it was withdrawn, or at the latest on 3 June 2015 when the registrar imposed MTT2 under s 120 Payments Act just before the sunset clause took effect.
Alternatively, the registrar says MTT1’s validity and merits should be judged on the facts and law when it was imposed on 27 August 2014, rather than with regard to circumstances and changes in the law occurring after it was withdrawn on 2 June 2015.
He also contends that, as the February 2015 General Conditions were imposed on all adjudicators in place of a previous set and were themselves superseded by the June 2015 General Conditions, they therefore no longer apply to the applicant’s registration and she is not liable to comply with them.
This means, he says, that there is no jurisdiction under s 24 QCAT Act to “affirm” or “vary” nor “set aside” the decision. There is no utility, he says, in conducting a merits review of the decision to impose them.
Moreover, according to the registrar, it would be anomalous for the tribunal to apply current law and facts to an old condition and its validity should be judged (if at all) according to the circumstances as they were when it was imposed in 2015.
The applicant argues that, irrespective of the individual merits of the later MTT and general condition decisions, they cannot stand if any earlier decision is effective. MTT2 and the June 2015 General Conditions are either entirely redundant (in the case of MTT2) or based on inconsistent facts (the General Conditions). It follows that, at the very least, one of the MTT conditions and one of the general condition decisions must be set aside or declared invalid.
Any practical problems with applying the standard review principles and procedures to MTT1 and the February 2015 General Conditions are not insurmountable and there is a general utility in deciding the intended scope of the power given to the registrar to impose conditions on the registration of an adjudicator.
In any case, in addition to the review powers and procedures, s 60 QCAT Act allows the tribunal when constituted by a judicial member to give binding declaratory relief instead of, or as well as, making any other available order about a reviewable decision. Thus, the power of this tribunal in reviewing the disputed decisions of the registrar and ensuring they are the correct and preferable ones having regard to the law and the facts coexists with the ancillary remedy of declaration.

The Payments Act

In recognition of the importance of financial security in the construction industry (especially assured cash flow) and the potentially ruinous consequences for subcontractors of delayed or non-payment for work done, the Payments Act establishes a state-wide system of expedited referral and adjudication[7] for resolving progress payments disputes.[8]
[7]Payments Act s 8.
[8]Section 7.
Its main policy purpose is to ensure that, irrespective of the relative merits of cross-claims or other collateral controversies such as allegations of defective work, sub-contractors and building service providers can recover independently assessed interim amounts on account of progress payments from owners and head contractors within prescribed time limits pending final resolution of any contested liability issues by a court.
The aim is to put an end to the tactic used by unscrupulous developers and building companies delaying or denying payment to subcontractors on specious grounds. This is achieved by provisionally transferring the risk of loss from the most economically vulnerable to the more powerful party to the contract.

The Payments Act is based on the Building and Construction Industry Security of Payment Act 1999 (NSW). The main differences between the two Acts are the Queensland statute’s requirement that adjudicators be registered and the registrar’s power to impose conditions on their registration.
When enacted in 2004, the Payments Act utilised the services of authorised nominating authorities (‘ANAs’). The Queensland Building and Construction Commission (QBCC or commission) registered ANAs and suitably qualified adjudicators, nominated training organisations responsible for delivering courses to aspiring adjudicators, managed a public register of the registration status of ANAs and adjudicators and also of adjudication decisions.
Schedule 4 of the ANA condition contained the selection, training and monitoring requirements. To be eligible for registration as an adjudicator, a person had to hold an adjudication qualification[9] and be, in the registrar’s opinion, suitable for carrying out the statutory functions having regard to the matters mentioned in s 60(2) Payments Act, including their relevant experience, qualifications and other details contained in the application for registration under s 57 Payments Act. ANAs nominated an adjudicator with appropriate experience and qualifications to determine a dispute – a procedure that still applies in NSW today.
[9]Section 60(1). Pursuant to s 111, the term ‘adjudication qualification’ referred to a certificate or equivalent issued by a registered ANA (defined in Sch 1 of the Regulations) confirming that an adjudication competency standard had been met.
In 2012, the Minister for Housing and Public Works released a discussion paper about the operation of the Payments Act. A barrister, Andrew Wallace, was appointed to review and assess submissions received in response from industry stakeholders. The major matters of the inquiry were the quality of some adjudication decisions, the perception of bias and conflict of interest of ANAs and the appointment, competence and good faith of adjudicators;[10] despite only 5% of adjudication decisions having been successfully appealed.
[10]Wallace Report pp 128-167, 197-198 and 230-248.
Published in May 2013, the ‘Wallace Report’ made 49 recommendations for reforming and addressing key stakeholder concerns about the appointment of adjudicators and the integrity of the adjudication process.
Among them were transferring the power and process for appointing and registering adjudicators from the ANAs to the registrar,[11] training “approved by the registrar” including attendance or delivery of recognised educational papers and journal publications or subscriptions, seminars or mentoring, imposing a requirement on adjudicators to satisfy mandatory minimum continuing professional development rules (with the aim of increasing the levels of expertise, professionalism and ethical behaviour), the registration and grading of adjudicators according their skills, experience and qualifications (to assist the registry staff in adopting and applying selection criteria for referring matters to an adjudicator) and additional elements for obtaining an adjudication qualification for trade based applicants with no formal tertiary education.
[11]Ibid pp 8-13.
Wallace favoured “more intensive and detailed” adjudicator training and refresher courses in line with those earlier recommended by Bruce Collins QC in New South Wales to increase the expertise, professionalism and ethical behaviour of adjudicators insofar as they related to the Payments Act scheme, including the suggestion that they consist of, at least, additional study modules such as:
(a)an analysis of the legislation;
(b)overview of the law of contract;
(c)analysis of building contracts;
(d)analysis of costs and claims in the building and construction industry;
(e)detailed analysis of building construction claims and contractor entitlements; and
(f)an overview of building and construction law.
The Wallace Report informed the Building and Construction Industry Payments Amendments Bill 2014 (Payments Bill); but not all, most or even many of its recommended reforms were accepted.
Save for a one-off temporary transitionary training provision, none of the pre- or post-registration mandatory training or compulsory professional development recommendations were enacted. The relevant changes were limited to the establishment of a single QBCC registry with a new referral as well as registration role and the insertion of s 101, allowing regulations to be made to give effect to commission policies governing the Act’s administration.
ANAs no longer train or appoint adjudicators in Queensland due to conflict of interest concerns, but continue to offer document delivery services.

Registrar’s functions

Subject to the direction of the QBCC commissioner, the registrar is responsible for managing the registry and its administrative affairs.[12]
[12]Section 38(1).
The registrar is eligible for appointment provided he or she has knowledge and experience in a discipline of substantial relevance to his or her statutory functions including public administration (but not legal) qualifications.[13]
[13]Section 37(1).
He has the powers reasonably necessary to perform his stated functions[14] of keeping and making available for inspection a register containing details of adjudicators, recording and publishing adjudication decisions, and, more importantly, referring applications to adjudicators.[15] In addition to his stipulated functions the registrar has “any other functions given under” the Payments Acts.[16]
[14]Section 38(3).
[15]Section 38(2)(a)-(f).
[16]Section 38(2)(g).
These include:
·responsibility for receiving all adjudication applications;[17]
·providing adjudication certificates;[18]
·receiving and deciding all applications for registration as an adjudicator;[19]
·considering the suitability of a person applying for registration as an adjudicator[20] and any matter relevant to the ability of that person to carry out the functions of an adjudicator;[21]
·renewing the registration of adjudicators having regard to the person’s ongoing suitability;[22]
·processing applications for the amendment of an adjudicator’s registration;[23]
·suspending or cancelling the registration of adjudicators including immediately if there is an “immediate and serious harm to the effectiveness of the adjudication of payment claims”;[24] and
·internally reviewing administrative decisions including his own in performing his functions and powers.[25]
[17]Section 21(3).
[18]Section 30.
[19]Sections 56(1), 58.
[20]Section 59.
[21]Section 60(2).
[22]Section 70(4).
[23]Section 74.
[24]Sections 79, 80, 81, 82.
[25]Section 93.
He also claims in these proceedings to be impliedly responsible for their professional standards in so far as monitoring them and providing mandatory training and ongoing development for grading purposes based on skills, knowledge and experience in reliance on the Explanatory Notes to the Payments Bill and one of two QBCC policies prescribed in the Building and Construction Industry Payments Regulation 2004 (Qld) (Payments Regulation).[26]
[26]Regulation 2A and Schedule 1.
The Adjudicator Grading and Referrals Policy 2015 (2015 AGR) purports to provide criteria for grading adjudicators and making referral decisions along the lines recommended in the Wallace Report so as to “improve the quality and effectiveness of adjudicator decisions and outcomes”. It directs the registrar to “select adjudicators … based on an analysis of each application and marry that analysis with a suitably graded adjudicator”[27] and “dictates the grading of adjudicators according to their experience, qualifications, and skill (gleaned from the mandatory transitionary training and ongoing training requirements)”.[28]
[27]Clause 3.1.1.
[28]Clause 3.1.2.

Registration requirements

The Payments Act expressly limits registration as an adjudicator to suitable persons. A person is only suitable for registration as an adjudicator if she or he holds a defined adjudication or equivalent qualification. The elements that must be successfully completed to attain competency are prescribed in Schedule 1A Payments Regulation. Otherwise, suitability is assessed against the person’s experience and the other matters mentioned in s 60(2) Payments Act relating to his or her ability to carry out an adjudicator’s functions.
Registration is effective for a fixed term from the date the certificate of registration[29] is issued or renewed and ends either after three years or on an earlier date decided by the registrar and stated in the certificate.[30] Renewal of registration is governed by Part 4 Division 4 Payments Act and depends on the same matters as initial registration.
[29]Section 62(1).
[30]Section 64.
Registration as an adjudicator is subject to compliance with the Payments Act and other valid conditions the registrar considers are warranted.[31]
[31]Section 65(1)(b).
An adjudicator’s registration may be suspended or cancelled if the registrar forms a belief of the existence of stated grounds including unsuitability or contravention of a condition[32] either immediately to protect the integrity of the adjudication process,[33] or, if he does not change his mind, after considering show cause representations.[34]
[32]Section 77.
[33]Section 82.
[34]Sections 79, 80.
A monetary penalty of up to $22,000 may be imposed for a contravention a condition of registration whether or not registration is also suspended or cancelled because of the breach.[35] However, s 107 Payments Act provides a defence for contraventions committed in good faith.
[35]Sections 67(1), (2).

Adjudication determinations

Adjudication applications are made by claimants to the registrar,[36] who allocates the matter to a registered adjudicator.[37] If the selected adjudicator accepts the application, he or she is deemed to have been appointed to decide it[38] for a fee agreed directly with the parties.[39] An appointed adjudicator assesses and certifies the amount, if any, to be paid.[40] An adjudication certificate may be filed as a judgment and any unpaid sum is enforceable in a court as a debt.[41]
[36]Section 21(3)(b).
[37]Sections 21(6), 22(1), 38(2)(a).
[38]Section 23(2).
[39]Sections 21(3)(e),(4); see Payments Regulation Schedule 2.
[40]Section 26.
[41]Section 31.
An adjudicator is only ineligible to determine a particular claim if he or she is a party to the construction contract in question or if the appointment might otherwise create a conflict of interest.[42]
[42]Section 22(2).
An adjudicator must decide an adjudication application before the prescribed deadline.[43]
[43]Sections 25(1),(2); 25A, 25B.
The three matters an adjudicator is to decide are identified in s 26(1) as:
·the amount of the progress payment, if any, to be paid by the respondent to the claimant (the adjudicated amount); and
·the date on which any amount became or becomes due; and
·the rate of interest payable on any amount.
The only material considerations for deciding an adjudication application are specified in s 26(2). They are limited to the provisions of the Payments Act, Part 4A of the Queensland Building and Construction Commission Act 1991 (Qld) (to the extent relevant), the construction contract and submissions for and against the claim or schedule.
The adjudicator’s decision must be in writing unless waived by the parties and include the reasons.[44]
[44]Section 26(3).
It is unclear whether an adjudicator is a statutory tribunal exercising governmental powers or more akin to a joint expert appointed by the parties to a dispute to make a legally binding determination.[45] They are certainly professional decision makers with implied obligations to act independently, ethically, rationally and reasonably in good faith within the limits of their statutory functions and powers without any external influence on them about what or how particular determinations are to be made.
[45]See Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421.
Notably, there is no statutory right of appeal or judicial review against an adjudicator’s determination[46] and the Payments Act is strongly against granting of prerogative relief in the nature of certiorari[47] to quash a determination for apparent errors of law or fact in a statement of reasons.[48]
[46]Judicial Review Act 1991 (Qld) Part 2; Schedule 1.
[47]Judicial Review Act 1991 (Qld) Part 5.
[48]Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83.
A determination is not invalid, for example, merely because of non-compliance with non-essential requirements of law for construing or applying terms of the construction contract provided a bona fide attempt is made to resolve a dispute.
A purported determination may only be declared void for jurisdictional error (e.g. if it is not made according to law or otherwise in excess of power),[49] or fails to meet essential procedural pre-conditions or natural justice requirements.[50]
[49]Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421 [51], [58].
[50]Ibid [57]-[58].
Otherwise, the adjudicated amount is final and conclusive as to progress payment amounts which must be paid without question pending the resolution of any court-based litigation about contract breaches or other issues. If not paid, the determination is enforceable by a court as a judgment debt, irrespective of the strength of a greater cross-claim.[51]
[51]See generally Altys Multi-Services Pty Ltd v Grandview Modular Building Services Pty Ltd [2008] QSC 26; Minimax Firefighting Systems Pty Ltd v Bremore Engineering (WA Pty Ltd) & Ors [2007] QSC 333.

Registration conditions

Adjudication registration is subject to the conditions mentioned in s 65 Payments Act:
“65 Conditions of registration
(1)       A registration is subject to the following conditions—
(a)        the adjudicator must comply with this Act;
(b)other reasonable conditions the registrar considers appropriate to give effect to this Act and that are stated in the certificate of registration or in an information notice given under subsection (3).
(2)       Conditions may be imposed under subsection (1)(b)—
(a)when registration first happens or is renewed or amended; or
(b)at another time if the registrar considers this is necessary to ensure that an adjudicator effectively performs the adjudicator’s functions under this Act.
(3)If the registrar decides to impose conditions on the registration under subsection (2)(b)—
(a)the registrar must immediately give the adjudicator an information notice for the decision…”[52]
[52]Interestingly, the NSW Act does not have any counterpart to ss 65(1)(b) or (2)(b).
Thus, the registrar has limited power to impose ‘other reasonable conditions’ on the registration of one, some or all adjudicators[53] pursuant to s 65(1)(b), if he subjectively (but reasonably) considers it (or them) appropriate to give effect to the Payments Act and are stated in the certificate of registration or an information notice under subsection (3).
[53]Acts Interpretation Act 1954 (Qld) s 32. The words ‘an adjudicator’ include the plural.
Section 65 (1)(b) conditions imposed at ‘another time’ (not being initial, amended or renewed registration) must, by virtue of s 65(2)(b), be considered not only appropriate for giving practical expression to the Payments Act, but also necessary to ensure an adjudicator (or adjudicators) effectively performs their statutory functions. If the registrar acts under subsection (2)(b), an information notice for the decision must be given to the adjudicator ‘immediately’ and, if not stated otherwise, takes effect on receipt.
There are not likely to be many conditions of registration appropriate to give effect to the Act or ensure effective performance of an adjudicator’s functions when simply complying with the Payments Act under s 65(1)(a) is not.
In addition to s 65, s 120 Payments Act expressly conferred discretion on the registrar in the period of 14 December 2014 to 15 June 2015 to:
(1)… impose a condition on the registration of an adjudicator that requires the adjudicator –
(a)To complete the mandatory transition training prescribed by regulation; and
(b)To pay the cost of the training prescribed by regulation.
(2)This section expires 6 months after the commencement.
Also, as already mentioned, s 38(3) Payments Act invests the registrar with incidental powers reasonably necessary for effectively discharging his responsibilities. The parties take a different view as to its scope. The applicant argues that s 38(3) powers are not auxiliary to ss 65(1)(b) or (2)(b) and are confined to incidental matters having no connection with registration. The registrar relies on it to validate general conditions aimed at improving adjudication standards and practices.
However, as Gavan Duffy CJ and Dixon J said in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia:[54]
“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”[55]
[54](1932) 47 CLR 1; see too Saraswati v R (1991) 172 CLR 1 (McHugh J).
[55]The so-called expressum facit cessare tacitum maxim.
On this basis, and regardless of their perceived efficiency or other utilitarian value, the applicant is correct. Imposing registration conditions is not one of the powers reasonably necessary to perform the registrar’s functions s 38(3) intends to confer.

The reasonableness requirement

If a condition is not reasonable it cannot be allowed to stand even if it can otherwise be said to appropriately give effect to the Payments Act.
The registrar submits that a condition is reasonable if it is an incident of administering the Payments Act, achieving its objectives, performing his own functions including deciding which adjudicators are the most suitable to allocate matters to and ensure that they fulfil their intended role.
The registrar relies on the test of reasonableness identified by the High Court in Minister for Immigration and Citizenship v Li.[56] He argues that a condition is reasonable so long as it is objectively reasonable in all the circumstances at the time (without the benefit of hindsight) and within the scope and purpose of the legislation and not arbitrary, vague or fanciful. The applicant says, by contrast, that test applies to discretions and is not apposite to the construction of a statutory requirement of reasonableness.
[56](2013) 249 CLR 332; see for example [76] and [98].
A reasonable condition, according to the applicant, is one that is sensible, moderate, rational, demonstrates sound judgment, is within the bounds of common-sense, takes the legitimate interests of others into account, not greatly more or less than might be expected, tolerable and fair. This necessarily excludes conditions that are unjust, capricious, whimsical, eccentric, arbitrary, absurd, excessive, extreme or based on irrelevant or improper considerations.
Determining whether a condition is reasonable involves an evaluation of the known facts, circumstances and considerations which may bear rationally (that is, relevantly) upon the issue in question.

However, as Hayne J said in McKinnonv Secretary, Department of Treasury: [57]
“The expression “not irrational, absurd or ridiculous” is not synonymous with ‘reasonable grounds’. Of course, absurd, irrational or ridiculous grounds are not reasonable grounds. But the words ‘reasonable grounds’ do not denote grounds which are “not irrational, absurd or ridiculous. The statutory words are to be given their ordinary meaning.”
[57](2006) 228 CLR 423, 445 [60].

The appropriateness requirement

This requirement imports a subjective element and obliges the registrar to consider the appropriateness (fitness or suitability) of a condition to ‘give effect to’ the Payments Act. It cannot be met if the registrar fails to properly construe what ‘give effect to’ means in the conditions context. An opinion formed on a misunderstanding of the law under which a person acting under a statutory power acts is a nullity, because a person cannot confer power on oneself by mistake.[58]
[58]R v Connell, ex parte Hetton Bellbird Collieries (No 2) (1944) 69 CLR 407, 430.
The applicant submits that relevant to assessing the appropriateness of the conditions generally are their nature and ‘sheer number’. These reviewable conditions are inappropriate because they disclose the registrar’s evident lack of trust in the applicant’s professionalism which must, in turn, undermine the confidence of others in the adjudication system.
Also, she says, the reviewable conditions inappropriately allow the registrar to act as ‘judge, jury and executioner’ over any perceived breach of registration in the absence of any prosecution, hearing or findings; and, in breach of ss 78(1) and (2) Payments Act improperly deprives adjudicators of their statutory right to an opportunity to show cause, to no further action being taken and to any form of review and thereby subverts, rather than gives effect to, the Act.
Furthermore, a condition could not be ‘appropriate to give effect to’ the Payments Act if it was incompatible or inconsistent with the paramount condition in s 65(1)(a) requiring strict compliance with the Payments Act or contrary to any other express or implied provision about what adjudicators can do or how it is to be done.

The ‘give effect to’ requirement

The words ‘give effect to’ have been the subject of previous judicial consideration, particularly in the context of whether a regulation has been validly made under a statute. Within this body of law, a regulation must “do no more than enable the provisions of the enactment creating it to be effectively administered or carried out”.[59]
[59]Grech v Bird (1936) 56 CLR 228, 239 (Dixon J).
In the words of Isaacs J in Carbines v Powell:[60]
“(t)o ‘give effect’ to an Act is to enable its provisions to be effectively administered… (The expression) connote(s) that (the thing to be done is) to be confined to the same field of operation as that marked out by the Act itself”.
[60](1925) 36 CLR 88; cited with approval by Dixon J in Grech v Bird (1936) 56 CLR 228.
The parties agree the phrase ‘give effect to’ in s 65(3) Payments Act ought to be interpreted likewise.
Thus, a registration condition will relevantly ‘give effect to’ the Payments Act if it does not ‘extend the scope or general operation’ or do no more than authorise ‘subsidiary means’ of carrying it out or are ‘incidental to the execution’ of its provisions; but not if it attempts to ‘widen’ its purpose or depart from, or vary, the means provided for giving practical expression to its ‘plan’.[61] In other words, a condition that enables the provisions of an authorising enactment to be effectively implemented is said to ‘give effect to’ it.[62]
[61]Shanahan v Scott (1957) 96 CLR 245, 250.
[62]Grech v Bird (1936) 56 CLR 228, 239 (Dixon J).
It is not enough for a condition to be merely compatible or consistent with the Payments Act’s objects because, as the applicant rightly points out, they are a statement of policy aims and a helpful interpretive aid for resolving ambiguity, not a source of substantive powers.

The necessity requirement

The applicant calls the necessity requirement a ‘very significant’ barrier to the imposition of conditions on working adjudicators to protect their independence.
She contends that the ordinary meaning of the word ‘necessary’ is that which cannot be dispensed with or done without; not merely advantageous or desirable for the effective performance of an adjudicator’s function. She says it means that no condition can be imposed on her registration unless it is considered that she simply cannot perform her functions without adhering to it.
It is particularly important, she says, that ‘necessary’ not be construed as ‘reasonably necessary’ as the registrar contends, because that term is used elsewhere in the Payments Act,[63] which indicates that Parliament intended them to have different meanings and there is no contextual imperative for giving different terms the same meaning. The narrower term was intended to confine the conditions power over registered adjudicators more than the other ‘reasonably necessary’ powers given to the registrar to fulfil his own functions.
[63]Section 38(3).
The applicant (a practising barrister in New South Wales and senior adjudicator with nine years’ Payments Act experience whose registration has been renewed twice) asserts that, in order to be valid, a condition must be ‘necessary’ for the particular adjudicator to effectively perform their functions under the Payments Act (i.e. the focus of ‘necessary’ is upon the adjudicator’s past and likely personal performance of his or her formal functions under the Payments Act).
In other words, s 65(2)(b) Payments Act is adjudicator-specific and does not allow the registrar to impose a condition indiscriminately on all adjudicators to address the perceived shortcomings of one or some of them or raise standards generally.
The word ‘necessary’ in s 65(2)(b), on the registrar’s case, means ‘reasonably necessary’ rather than essential and ‘ensure’ focuses on the subject reason for imposing the condition. It cannot mean a guarantee of the intended outcome. On this suggested interpretation, the composite phrase ‘necessary to ensure’ means ‘reasonable, appropriate and adapted’. That is, the registrar must subjectively believe (presumably on reasonable grounds) that the condition is reasonably appropriate and adapted to facilitate the effective performance by an adjudicator of his or her functions.
The registrar asserts that he must be satisfied that it is necessary for him to impose the condition at a time other than when registration first occurs, upon its renewal or amendment (i.e. the focus of ‘necessary’ is upon the time the condition is imposed). He argues that a condition is necessary within s 65(2)(b) if it had to be imposed when it was because it could not as conveniently be done at any other time.
The applicant says this interpretation is unsustainable because it ignores the stated purpose for which adding the condition must be needed to achieve (i.e. ensuring an adjudicator effectively performs the adjudicative function).
She submits that s 65(2)(b) requires that, where a condition is imposed at a time other than when registration first happens or is renewed or amended, the condition must be essential to the performance by the adjudicator of their duties. In other words, a condition cannot be imposed under s 65(2)(b) unless the condition is indispensable or imperative to the performance by an adjudicator of their functions under the Payments Act.
However, the registrar suggests such a prescriptive interpretation would lead to the (surely) unintended result that no condition could ever be imposed pursuant to s 65(2)(b), because it is impossible to think of any condition the registrar might impose would have the necessary quality of being essential to an adjudicator performing their functions under the Payments Act.
The use of words such as ‘necessary’ (as opposed to reasonably necessary as in s 38(3)), ‘ensures’ and ‘effectively’, in my opinion, suggests that their meaning is closer to the applicant’s than the registrar’s suggestion.
Although, as a matter of strict statutory construction, the singular includes the plural, the question of whether it is necessary to impose a condition seems focused on the comparative performance of the adjudicators. The intended function of the necessary condition seems to be to bring the capacity of an otherwise underperforming adjudicator up to registration standard.
On this basis, as the applicant submits, the task of assessing necessity should be approached by reference to the adjudicator’s statutory functions and asking how they are effectively performed, then determining whether the applicant has met that standard and in light of the answer, deciding whether as a fact she needs MTT or CPD to be an effective adjudicator.
In my opinion, having regard to the nature of the adjudication procedure, the legal status of adjudication determinations and the adjudicator’s statutory role in making them, the objects and text of ss 65(1)(b) and (2)(b), in conjunction with their legislative context and ordinary meaning, a registration condition is ‘reasonable’, ‘appropriate’ and ‘necessary’ in the intended sense, if it has a rational and relevant connection with the statutory scheme for adjudication of construction contract progress payment disputes and is proportionate for achieving the intended goals.
Because of the discretionary nature of registration conditions, and the fact that non-compliance can have seriously detrimental professional and economic consequences, the reasonableness requirement implies consideration of the adjudicator’s personal qualifications, experience and his or her record of inadequacy or delinquency are material factors in assessing the reasonableness, appropriateness and necessity of imposing any (and if so what) training, professional development and general conditions on his or her registration.

MTT1

MTT1 purports to compel 100% attendance and participation at a two day training course and require attainment of at least an 80% grade in an exam. The course material covered proposed changes to the Payments Act following the Wallace Report regarding functions, natural justice principles, construction contract law and practice and the conduct of the adjudication process.
Failure to meet MTT1 attracts a monetary penalty of up to $22,000 and possible suspension or cancellation of registration.
The applicant contends MTT1 is either (a) void for jurisdictional error or (b) still on foot because irrespective of his intent the registrar is powerless to override it via MTT2.
She submits that, in reviewing MTT1 (and both General Conditions), the tribunal should determine the correct and preferable decision by reference to the state of affairs (fact and law) existing at the time the registrar made the original decisions, while the MTT2 and CPD conditions should be assed as at the review date to take account of:
·the remaking of MTT1 and the February General Conditions;
·s 120 Payments Act’s relevance to MTT1 as well as MTT2;
·the expiry of s 120 on the tribunal’s’ ability to ‘remake’ MTT2;
·the applicant’s completion of MTT2 but not MTT1;
·the registrar’s referral practices post-2014; and
·the 2015 AGR criteria in relation to MTT2 and the CPD condition.
Whether or not it has been overridden by MTT2, withdrawn, abandoned or permanently stayed (as the applicant insists), MTT1 has been overtaken by events. It is, at the very least, dormant – if not extinct. The applicant is not in jeopardy of incurring any penalty for contravening it and, in any case, completed MTT2 on 9 October 2015.
However, that does not mean that its validity is practically irrelevant. It is currently stayed and its future fate needs to be resolved.
The registrar submits[64] that MTT1 assisted with the effective administration of the Payments Act by enabling adjudicators to be competent in the areas of law required for standard and complex payment claims and to reach an appropriate decision within the legislated timeframes.
[64]At [385]-[387] of the closing submissions filed on behalf of the registrar on 26 April 2016.
Section 60 Payments Act provides that a person is not suitable to be registered as an adjudicator unless they hold an adjudication certificate stating that they have achieved an adjudication competency standard prescribed under a regulation. The registrar interpreted the intention of s 60 as to ensure competency and considers MTT1 to be in line with this objective. This view is based on the Wallace Report which, he says, demonstrates that even though an adjudication qualification is currently held, more needs to be done to ensure an adequate level of competency so as to increase the quality of decisions and minimise the number of decisions that are referred to the Courts.
The registrar argues that at the date MTT1 was imposed the MTT Course was directly relevant to the exercise of the powers and performance of the functions of adjudicators under the Payments Act, because they were required to:
(a)liaise with the registry about certain matters, including the referral of adjudication applications, the provision of decisions and “other information” required by the registrar in an approved form;[65] conditions on registration; applications for the initial granting of an adjudication certificate, as well as applications for renewal or amendment of registration; and matters concerning the suspension and cancellation of an adjudicator’s registration;
(b)apply the law, including in particular that relating to construction law and construction contracts;[66]
(c)be intimately familiar with construction contracts and practical elements of construction;[67]
(d)comply with the Payments Act as amended;
(e)provide natural justice to the claimant and respondent, which included an obligation to act ethically; and
(f)give a decision in writing which included the reasons for their decision (unless asked not to do so by the claimant and respondent).[68]
[65]Section 102.
[66]Sections 26(1), 27.
[67]Ibid.
[68]Section 26(3).
He also claims MTT1 gives general effect to the Payments Act because the factors relevant to deciding the suitability of an applicant for renewed registration as an adjudicator include the experience and qualifications as well as their likely ability to carry out adjudicative functions. More specifically, it is essential, says the registrar, for the adjudication process to be carried out in a manner complying with the Payments Act itself, and that public confidence in the adjudication process be maintained at its highest levels.
The reason the registrar reportedly placed “so much importance on the adjudicators completing the MTT1 Course” was because in the wake of the Wallace Report he was going to inherit “100+ adjudicators all trained in different ways by different ANAs, non-tertiary educated adjudicators were commonly drawn from the industry, and no records of who had undertaken what training or when, much less an idea whether any adjudicator was qualified in what (he) believed to be key competency areas”.
The registrar advised the applicant in 2014 that MTT1 was to ensure that adjudicators effectively perform their functions under the Act, having regard to the legislative objectives set out in the objects of the Act, the Wallace Report and the Payments Bill. So that: “all adjudicators commence under the new regime on a level playing field of knowledge”; others are able to benefit from (her) “input”; “key areas of competency are held by all adjudicators” the “consistency” of decisions is improved; and to assist in ensuring that “decisions (are) made by competent adjudicators” and “the level of skills and knowledge of… adjudicators is monitored effectively”.
The registrar’s intent in imposing MTT1 was to inform adjudicators of the changes to be introduced in the 2014 amendments as a means of increasing the overall skill level of registered adjudicators, “…to reinforce the high standard that is expected as a condition of their ongoing registration”; to improve the quality of adjudicator decisions by requiring all adjudicators to undertake MTT; and to align the skills and training of existing adjudicators with those of new applicants (who will be required to complete the modules that form part of the MTT in an adjudication qualification course, which is currently being developed).
The applicant challenges these objectives as problematic in the following respects:
·concerns purportedly raised in the Wallace report are illusory;
·creating a ‘level playing field’ is fanciful;
·ensuring key areas of competency are held by all adjudicators defies belief that the registrar has knowingly registered adjudicators who are not competent in key areas;
·improving the consistency of decisions is misguided (and because if the real objective is consistently correct decisions, because the evidence suggests the applicant has already achieved this); and
·there is no evidence she is not alive to various ethical issues, is well-equipped to determine jurisdiction and understands the amendments.
The applicant argues that post-registration training functions cannot be implied into the Payments Act because it contemplates the regulation of adjudicator competence or quality only through the mechanism of registration based on suitability criteria. She concedes that the Payments Act refers to a minimum standard[69] for the registrar to have regard to them in deciding a person’s suitability for registration;[70] but argues the term in this context, refers to threshold qualifications, as distinct from ongoing professional training or development which have more to do with competence.
[69]Section 60(1).
[70]Section 60(2).
This interpretation, she says, follows from the ordinary meaning of ‘qualifications’ and other provisions of the Act, including the three-year period of registration and the fact that there is no limit on the currency of an adjudication qualification.
The applicant says the registrar’s role (so far as adjudicators are concerned) on 27 August 2014 was limited to determining their initial suitability for registration and assessing their ongoing suitability for registration and his powers in these regards extend only to registering or not registering, suspending or cancelling registration, and imposing conditions which facilitate those functions.
Registration implies the ability to carry out an adjudicator’s functions and the registrar’s imposition of MTT1 is “well and truly outside the field of the operation marked out for (him) by the Act and wholly ultra vires”. She says his functions are expressly and exhaustively set out in the Payments Act and do not extend to achieving any of the stated purposes of MTT1.
The applicant submits that, as the registrar has no power to take account of an adjudicator’s training or knowledge as part of his functions, it follows, a fortiori, that, statute apart, he has no power to impose any training requirement or to assess an adjudicator’s knowledge. She denies that MTT1 is justifiable by reference to a future expansion of the function.
It is also inconceivable, she contends, that the legislature intended the registrar to train and assess adjudicators (either directly or indirectly) in areas in which they are unqualified. If the legislature intended him to have the powers he says he has, it could easily have made this apparent, but didn’t.
The applicant, however, says ss 57 and 60 Payments Act specify the only matters the registrar is allowed to consider or act upon when registering, suspending or cancelling registrations. In addition to experience and qualifications and anything else relevant to an adjudicator’s ability to carry out his or her functions as an adjudicator, they are: prior conviction for a relevant offence, other than a spent conviction; has held a registration under a corresponding law that has been suspended or cancelled; been refused registration under a corresponding law; and has an address in Queensland for the service of documents.

The requirement to provide copies of notices of acceptance in 2(f) is contrary to the Act which leaves the discretion to accept matters to adjudicators are not for any lawful purpose and arbitrary because only one day is allowed. The only things an adjudicator is obliged by law to provide the registrar are a copy of decisions and “the other information” required in “the approved form” under s 102 Payments Act. There is no requirement to provide notices or completed referral kit forms.
2(f) is also inconsistent with s 23(1) Payments Act, which gives adjudicators discretion to accept an adjudication notice by serving an acceptance on the parties.

Condition 2(g)

This requires notification to the registry of the due date for a decision (meaning the deadline calculated under ss 25A or B). The registrar says this gives effect to the Payments Act because it assists the performance of the referral function, using the information for reporting purposes and monitoring progress and performance. The applicant raises the same objection to this condition as she does to conditions (j) and (m) of the February 2015 General Conditions.

Condition 2(h)

This requires all adjudicators to fill in an approved form advising the registry that a decision has been made and the parties of the fee payable for release. The registrar contends that it is essential for him to know when a decision has been made for him to properly perform his record keeping and publishing functions and report to the commissioner on the time taken to resolve adjudication applications and whether statutory decisions are met.

Condition 2(i)

This requires the adjudicators to inform the registry of the release of a decision to the parties within two days so the registrar can obtain a copy of it for publication purposes and recording and reporting on trends concerning the result of adjudicators, the degree of success of a party. It requires adjudicators to provide decisions corrected under s 28 Payments Act. This facilitates ss 38(2)(e) recordkeeping and publication functions and s 102 information obligations of adjudication.

Condition 2(k)

This requires adjudicators to inform the registry of any court or legal action in respect of an adjudication within five business days. The purpose is to give effect to and aid the discharge of the registrar’s reporting obligations and his functions generally. Adjudicators are not required by s 102(b) to give this information as “the other information required in the approved form”.

Condition 2(l)

This condition refers to written notification of any change of the applicant’s address or contact details within five business days. The registrar relies on the implied power in s 38(3) for performing the referral function if restricted to address in Queensland for service of documents.[91]

Condition 2(m)

[91]Section 57(b).

This condition requires adjudicators to update suitability information or other details in a registration application within five days including “conduct, qualifications and experience”. This is necessary to help the registrar perform his functions of administering the registry, appointing adjudicators, renewing applications for registration, suspending and cancelling registration, referring applications and grading adjudicators.
This is directed at the fiduciary obligations of disclosure of positive or negative suitability and capacity information[92] he needs for the renewal function,[93] suspension and cancellation functions[94] and apply the grading criteria in 2015 AGR.
[92]Section 60(2)(e).
[93]Section 70(4).
[94]Section 77.
The applicant says General Conditions 2(c) and (d) relating to a physical Queensland address are inconsistent with s 57(b) Payments Act.

Are the 2015 General Conditions valid registration conditions?

No. They may be perfectly reasonable and reflect best registry practice but they are not at all appropriate to give effect to the Payments Act and none are necessary to ensure the effective performance of the applicant’s functions under it.
The statutory condition of registration binds all adjudicators to complying with the Payments Act; not to the registrar’s version of it. The prerequisites for the registration conditions power are appropriateness to give effect to the Act and necessity to ensure effective (not efficient) performance of adjudication (not the registrar’s) functions.
The registrar has no authority to impose his will on adjudicators via registration conditions where it is not needed to ensure effective performance with their (not his) functions. Nor will his misinterpretation of the adjudicators responsibilities under s 65(1)(a) relieve them of any liability for breach of ss 57(b), 102(b) or 231.
The adjudicator’s duty to avoid conflicts of interest or meet timeframes for providing approved forms under s 102(b) does not warrant the registrar’s asserted power to require them to return unapproved forms either at all or within a shorter time than s 102(b) requires merely to aid the performance of his reference or appointment roles.
I do not accept that the registrar’s referral function[95] includes implied authority to direct that an adjudication application may be sent and must be received in a particular manner by a specified time or only at a physical address in Queensland.
[95]Sections 23, 38(2)(a) and 38(3).
Nor do ss 65(1)(b) or (2)(b) Payments Act include a power to require an adjudicator, as a condition of registration, to provide the registry with a copy of the notice of acceptance regardless of how much that would assist in referring applications to adjudicators. Likewise, a requirement to notify the registrar of the due date for a decision once it is known or varied.
The incidental power in s 38(3) does not authorise registration conditions that are not within the scope of s 65(1)(b) or without complying with ss 65(2)(b) and (3) when imposed at a time other than initial, amended or renewed registration.
Therefore, a power to require an adjudicator to notify the registrar when a decision has been made by a stipulated time cannot lawfully be imposed as a registration condition via s 38(3). The extent of the duty is to provide the relevant details in a ‘decision made’ form (if it is formally approved) or, otherwise if not, as “other information” under s 102(b).
Again, an adjudicator’s obligation to inform the registrar when a decision has been released (or corrected under s 28) is limited to the provision of written reasons as a statutory obligation under s 102(b); not for the purposes of helping the registrar’s record keeping or annual reporting functions under ss 38(2)(e) and 41.
There is no head of power under ss 65(1)(b) or 2(b) or elsewhere in Payments Act authorising the registrar to demand adjudicators notify him of known court or legal action in respect of an adjudication application (or determination) within five business days or at all.
Notification of any change of address or contact details cannot be made a registration condition except as implied by s 57(b). Likewise with any changes in details supplied in the registration application (except suitability disclosure the fiduciary relationship implies) for grading or related purposes.
Obviously, the intention of the registrar in imposing the general conditions is to facilitate the cost and time efficient management and administration of the registry and improve its services to adjudicators and industry stakeholders. They seem to be fit for that purpose and do not appear to be overly onerous to fulfil, but it is their legality that is at issue in these proceedings, not their common sense, efficiency, practicality or utility. The question is whether the applicant is legally liable to comply with them under pain of pecuniary penalty if she refuses to. In my view, they are not.

ORDERS

MTT2 is confirmed to the extent that it conforms to the terms of s 120 Building and Construction Industry Payments Act 2004 (Qld).
MTT1, the CPD Condition, the February 2015 General Conditions 2(f),(i),(j),(k),(m),(p),(q),(u) and (x) and the June 2015 General Conditions 2(a)(i),(c),(d),(e),(f),(g),(h),(i),(k),(l) and (m) are declared void.
The applicant is at liberty to file in the tribunal two (2) copies and serve on the respondent one (1) copy of any submissions in support of her application for costs, by:
4:00pm on 20 December 2016.
The respondent is at liberty to file in the tribunal two (2) copies and serve on the applicant one (1) copy of any submissions in response to the application for costs, by:
4:00pm on 9 January 2017.