Field Deployment Solutions Pty Ltd v Jones
[2015] WASC 136
•20 APRIL 2015
FIELD DEPLOYMENT SOLUTIONS PTY LTD -v- JONES [2015] WASC 136
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 136 | |
| 20/04/2015 | |||
| Case No: | CIV:1401/2015 | 15 APRIL 2015 | |
| Coram: | MITCHELL J | 15/04/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | FIELD DEPLOYMENT SOLUTIONS PTY LTD MARK WILLIAM JONES DULAL GHOSH SC PROJECTS AUSTRALIA PTY LTD SEA TRUCKS AUSTRALIA PTY LTD THE INSTITUTE OF ARBITRATORS AND MEDIATORS AUSTRALIA |
Catchwords: | Judicial review Where relief sought would be rendered futile by operation of statute Where alternative remedy available |
Legislation: | Construction Contracts Act 2004 (WA), s 28, s 31(3), s 46 |
Case References: | Alliance Contracting Pty Ltd v James [2014] WASC 212 BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2013] QCA 394 Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296 SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
MARK WILLIAM JONES
First Respondent
DULAL GHOSH
Second Respondent
SC PROJECTS AUSTRALIA PTY LTD
First Other Party
SEA TRUCKS AUSTRALIA PTY LTD
Second Other Party
THE INSTITUTE OF ARBITRATORS AND MEDIATORS AUSTRALIA
Third Other Party
Catchwords:
Judicial review - Where relief sought would be rendered futile by operation of statute - Where alternative remedy available
Legislation:
Construction Contracts Act 2004 (WA), s 28, s 31(3), s 46
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr P G Clifford & Mr A P Rumsley
First Respondent : No appearance
Second Respondent : No appearance
First Other Party : Mr T J Porter
Second Other Party : Mr T J Porter
Third Other Party : No appearance
Solicitors:
Applicant : Alan Rumsley
First Respondent : No appearance
Second Respondent : No appearance
First Other Party : Jones Day
Second Other Party : Jones Day
Third Other Party : No appearance
Case(s) referred to in judgment(s):
Alliance Contracting Pty Ltd v James [2014] WASC 212
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2013] QCA 394
Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296
SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609
- MITCHELL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)
1 This application for judicial review is a sequel to my decision in Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60. In that case, I held that the State Administrative Tribunal (Tribunal) erred in law in concluding that a contract called the 'Domgas ITZ Completions Service Agreement for the Hire and Operation of Hagglund Units Subcontract No 05033-Y-8003' was not a construction contract for the purposes of the Construction Contracts Act 2004 (WA) (Act).
2 Between the Tribunal's decision in that case and my determination of the appeal against that decision, two adjudication applications made by the present applicant were dismissed by the relevant adjudicators on the basis that the same agreement was not a construction contract.
3 The relevant provisions of the Actare set out in my previous decision, with which these reasons should be read.
4 The present application for judicial review seeks to quash the dismissal of those adjudication applications on two grounds:
1. The Respondents misunderstood the nature of their power under the Construction Contracts Act 2004, in finding that the Services Agreement dated 2 December 2013 between the applicant and the other parties was not a construction contract as defined under the Construction Contracts Act 2004; or
2. The Respondents misunderstood the nature of their power under the Construction Contracts Act 2004, in failing to consider, independently of the decision of Member Carey in Field Deployment Solutions Pty Ltd and SC Projects Australia Pty Ltd [2014] WASAT 101, whether the service agreement was a construction contract for the purposes of the Construction Contracts Act 2004.
5 The applicant seeks the issue of a writ of certiorari, quashing the decisions of the adjudicators to dismiss its adjudication applications. The applicant also seeks orders in the nature of mandamus requiring the prescribed appointor to appoint new adjudicators to deal with the matters.
6 SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd oppose the grant of relief, contending that there was no jurisdictional error involved in what was, they accept, an error of law made by the adjudicators. Those parties also contend that I should dismiss the application for judicial review on discretionary grounds.
7 SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd both seek an opportunity to be heard in relation to the question of jurisdictional error. The applicant seeks that I determine the application finally now.
8 In my view, even if jurisdictional error were to be established, it would be appropriate for this court to dismiss the current judicial review application for two discretionary reasons considered in combination. It is therefore appropriate to dismiss the judicial review application without proceeding to determine whether jurisdictional error is established.
Futility
9 The first reason is that, if I were to make an order quashing the adjudicator's decision, s 31(3) of the Act would then operate. That subsection provides:
If an application is not dismissed or determined under subsection (2) within the prescribed time, or any extension of it made under section 32(3)(a), the application is to be taken to have been dismissed when the time has elapsed.
10 The operation of s 31(3) was considered by Beech J in Alliance Contracting Pty Ltd v James,1 where his Honour noted:
That section provides that if an adjudicator does not make a determination within the prescribed time, 'the application is taken to have been dismissed when the time has elapsed'. So if the determination is quashed, the adjudication application will be taken to have been dismissed on 20 December 2013, when the time limit in s 31(3) expired, thus denying a remedy to Alliance.
It is to be noted that the Act does not qualify the operation of s 31(3) by reference to a situation where the adjudicator makes a jurisdictional error and the determination is quashed. Similar provisions in the payment security legislation in other States have been construed as operating in accordance with their terms notwithstanding the consequences where the adjudication is later quashed for jurisdictional error. I would adopt a like construction of s 31(3). (footnotes omitted)
11 Beech J then referred2 to BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd,3 in which Muir JA held that, once a court determines that an adjudication decision is affected by jurisdictional error, the decision cannot give rise to legal consequences.
12 It seems to me that, if I were to make an order quashing the adjudicators' decisions to dismiss the adjudication applications, s 31(3) of the Act would operate to substitute decisions to the same effect. That is, s 31(3) would then operate to deem the applications to have been dismissed.
13 In those circumstances it would be futile to grant relief by way of certiorari, futility clearly being a discretionary ground for refusing relief of that kind.4
14 The applicant seeks to overcome that conclusion by way of an order in the nature of mandamus, which it would seek to require the appointment of a new adjudicator under s 28 of the Act. It does not seem to be to be open, on the material before me, to conclude that such an order should be granted. The evidence is that the power under s 28 has been exercised, the adjudicators have been appointed, and there has been no application for any orders quashing that decision. The fact that an adjudicator's subsequent decision under s 31(2) may have been invalid does not affect the validity of the decision to appoint that adjudicator.
Availability of alternative remedy
15 The second discretionary reason for refusing the relief sought arises by reason of s 46 of the Act, which enables a person aggrieved by a decision made under s 31(2)(a) (such as the decisions in this case) to apply to the Tribunal for a review of the decision. Section 46(2) provides that if, on such a review, a decision is set aside under the State Administrative Tribunal Act2004 (WA), the adjudicator is to make a determination under s 31(2)(b) - that is, a determination on the merits - within 14 days after the date on which the decision in s 31(2)(a) was reversed or any extension of that time consented to by the parties.
16 It clearly would have been open to the applicant to have exercised the right to seek review of the adjudicators' decisions under s 46 of the Act at the time when the adjudication applications were dismissed. In choosing not to exercise that right, the applicant may have recognised that the decision of Member Carey, which I subsequently declared to have been infected by an error of law, would have been a hurdle to overcome on any review application to the Tribunal. However, it would have been open to the applicant to seek to have the Tribunal's review of the decisions sought to be challenged in those proceedings adjourned until this court determined the appeal from Member Carey's decision.
17 In any event, it does seem to me that there still is a potential for the applicant to seek to have the Tribunal review the decisions sought to be impugned in the present proceedings under s 46 of the Act.5 An extension of time would be required, but the Tribunal would no doubt take into account the special circumstances of this case where the adjudicators followed a decision of the Tribunal that was subsequently overturned on appeal.
18 The fact that an alternative remedy was available but not engaged is ordinarily a powerful factor against the grant of a discretionary remedy by way of judicial review.6
19 My decision not to grant prerogative relief on this occasion does not, in my view, leave the applicant without remedy. The applicant may still seek to engage s 46, albeit by applying for an extension of time from the Tribunal. If the review application to the Tribunal is successful, then s 46(2) of the Act can be engaged so that the adjudication applications can be dealt with on their substantial merits.
20 That seems to me the appropriate course, as judicial review is, for the reasons I have indicated, a futile remedy.
Other matters
21 Counsel for the applicant relied also on s 24(7) of the Supreme Court Act 1935 (WA) as giving me the power to make the orders sought. However, it seems to me that s 24(7) does not confer on me a power to alter the operation of the Act. In my view, an order requiring an adjudicator to deal with the matter, or an appointor to make a new appointment, would effect such an alteration to the operation of the Act.
22 I also note that the fact that the adjudication applications have been dismissed might preclude the applicant from again engaging the process of the Act. However, it will not preclude the applicant from pursuing its substantive rights in a court of law. As I indicated in my previous decision, the process provided for by the Act does not prejudice the ability of parties to seek a final adjudication of their rights in a court of law.
Conclusion
23 For those reasons, I would dismiss the application for judicial review. I will order that the applicant pay the first and second other parties' costs of the application to be taxed.
1Alliance Contracting Pty Ltd v James [2014] WASC 212 [85] - [86].
2Alliance Contracting [88].
3BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2013] QCA 394 [71].
4ReMinister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296; SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 [28] - [29], [87] - [88], [91].
5 See s 19(5) of the State Administrative Tribunal Act 2004 (WA).
6Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [134] - [140].
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