FIELD DEPLOYMENT SOLUTIONS PTY LTD and SC PROJECTS AUSTRALIA PTY LTD - [2016] WASAT 47

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: CONSTRUCTION CONTRACTS ACT 2004 (WA)

CITATION: FIELD DEPLOYMENT SOLUTIONS PTY LTD and SC PROJECTS AUSTRALIA PTY LTD [2016] WASAT 47

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)

HEARD: 9 FEBRUARY 2016

DELIVERED : 9 MAY 2016

FILE NO/S: CC 1836 of 2015

BETWEEN: FIELD DEPLOYMENT SOLUTIONS PTY LTD
Applicant
AND
SC PROJECTS AUSTRALIA PTY LTD
First Respondent
SEA TRUCKS AUSTRALIA PTY LTD
Second Respondent

Catchwords:

Construction contract - Review of decision made by an adjudicator - Proper jurisdiction to review a determination under s 31(2) of the Construction Contracts Act 2004 (WA)

Legislation:

Construction Contracts Act 2004 (WA), s 26, s 31(2), s 31(2)(a), s 31(2)(b), s 46(1)

Result:

Application dismissed

Summary of Tribunal's decision:

The Tribunal received an application under s 46(1) of the Construction Contracts Act 2004 (WA) seeking a review of a decision made by an adjudicator in relation to a payment dispute existing under a services agreement between two parties.
Although s 46(1) of the Act provides that a person who is aggrieved by a decision made under s 31(2)(a) may apply to the Tribunal for a review of the decision, the Tribunal concluded that the determination in question in this matter was made under s 31(2)(b) of the Act. As such, The Tribunal does not have the jurisdiction to review a determination under s 31(2)(b) of the Act.

Category: B

Representation:

Counsel:

Applicant:     Mr AP Rumsley and Mr PG Clifford
First Respondent           :     Mr CJ Steel
Second Respondent       :     Mr CJ Steel

Solicitors:

Applicant:     Alan Rumsley Commercial Disputes Lawyer
First Respondent           :     Jones Day
Second Respondent       :     Jones Day

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

Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 30 November 2015, Field Deployment Solutions Pty Ltd (FDS) filed an application under s 46(1) of the Construction Contracts Act 2004 (WA) (CC Act) seeking a review of a decision made by an adjudicator, Mr Michael Charteris (the Adjudicator), on 24 November 2015.
The grounds of the application were that:
1.The Reviewable Decision found that the application for adjudication was served within time at [92], then dismissed the application on the basis it was not served within time at [115.2], [126.2], [139.2], [152.2], [165.2], [172] and [183.2].
2.The Reviewable Decision did not apply the relevant provisions of the construction contract, under which the invoice was issued, being clause 14.6 of the General Conditions and clause 6(iv) of the Compensation Schedule.
3.The Reviewable Decision purports to make an order for costs other than the costs of the adjudication as defined in sections 3 and 44 of the Construction Contracts Act 2004.

The legislation

Section 31(2) of the CC Act provides:
An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a)
(a)dismiss the application without making a determination of its merits if
(i)the contract concerned is not a construction contract;
(ii)the application has not been prepared and served…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASAT 47
Decision Date: 9 MAY 2016

CaseChat Overview and Summary

Field Deployment Solutions Pty Ltd and SC Projects Australia Pty Ltd were involved in a legal dispute that was heard by the Supreme Court of Western Australia. The parties had entered into a construction contract, and a dispute arose regarding the interpretation and execution of the contract. The court was tasked with reviewing a decision made by an adjudicator under section 31(2) of the Construction Contracts Act 2004 (WA). The primary issue before the court was whether it had the proper jurisdiction to review the adjudicator's determination. The parties' dispute centred on the interpretation of the contract and the adjudicator's decision in relation to that interpretation.

The court considered the jurisdictional question by examining the relevant provisions of the Construction Contracts Act 2004 (WA). It held that the court's jurisdiction to review the adjudicator's decision was limited by the statutory framework. The court found that it did not have the proper jurisdiction to review the adjudicator's decision on the grounds presented by the parties. The court held that the adjudicator's decision was not subject to review by the court, as the grounds for review did not fall within the scope of the statutory provisions.

As the court did not have the jurisdiction to review the adjudicator's decision, it did not proceed to consider the merits of the dispute between the parties. The court's decision was based solely on the jurisdictional issue, and it dismissed the application for review of the adjudicator's determination. The court's ruling clarified the scope of its jurisdiction in reviewing adjudicator's decisions under the Construction Contracts Act 2004 (WA). The final orders of the court were that the application for review of the adjudicator's decision was dismissed, with no orders as to costs.

Orders