Easy Stay Mining Accommodation Pty Ltd v Faigen

In the case of Easy Stay Mining Accommodation Pty Ltd v Faigen, the dispute before the court involved a request for an injunction to restrain the enforcement of an adjudicator's determination, which had been taken to be a judgment of the court. The case was heard by the Supreme Court of Western Australia, with Justice Beech acting as the presiding judge. Easy Stay Mining Accommodation Pty Ltd sought to challenge the validity of the adjudicator's determinations, arguing that they were made in the absence of a construction contract between Easy Stay and Grounded Construction. The central issue for the court to decide was whether the adjudicator's determinations were susceptible to challenge on the basis that there was no construction contract between the parties, and whether the adjudicator was required to determine the merits of the payment dispute by reference to the construction contract that was before him.

The court considered the arguments presented by Easy Stay, which included the submission that the adjudicator's determinations were a failure to find the express terms of the contract regarding agreements as to rates and prices, and that the reasons provided by the adjudicator did not demonstrate a rational approach and reasonably explain the basis for the determination. The court acknowledged that the case advanced by Easy Stay was arguable, as the adjudicator was required to make specific findings of fact about what the contract was, and its terms, and to analyse the reasonableness of the claim as to rates, times and amounts against those terms. However, the court found that it was unnecessary to consider the submission further, as the error identified by Ipp J in West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72 [7] would be unlikely to be found to be jurisdictional error in the context of the Construction Contracts Act.

The court noted that it would be preferable for the grounds of the application to be redrafted to more clearly identify the alleged errors as errors going to jurisdiction, and to avoid the apparent overlap that permitted counsel to submit that his submission at one point was as to grounds 1, 2, 3 and 4. The court also noted that it was not argued in the interlocutory application, but the parties would need to consider the implications of the determinations being filed in the District Court. In particular, Easy Stay seeks a writ of certiorari, which is available only in respect of an exercise or purported exercise of power which has, at the date of order, an 'apparent legal effect': Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [25]. The determinations were now taken to be orders of the District Court, and the court would be assisted by submissions on whether the determination of the adjudicator now has legal effect and is susceptible to being called up and quashed.

The court ultimately decided that the application for an injunction was dismissed, but allowed Easy Stay to amend its grounds of application to more clearly identify the alleged errors as errors going to jurisdiction. The court also noted that the parties would need to consider the implications of the determinations being filed in the District Court, and whether the determination of the adjudicator now has legal effect and is susceptible to being called up and quashed. The court did not make any further orders in relation to the dispute, but indicated that the matter would need to be reconsidered in light of the court's decision.