Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   FIELD DEPLOYMENT SOLUTIONS PTY LTD -v- SC PROJECTS AUSTRALIA PTY LTD [2015] WASC 60

CORAM:   MITCHELL J

HEARD:   3 FEBRUARY 2015

DELIVERED          :   16 FEBRUARY 2015

FILE NO/S:   GDA 8 of 2014

BETWEEN:   FIELD DEPLOYMENT SOLUTIONS PTY LTD

Appellant

AND

SC PROJECTS AUSTRALIA PTY LTD
First Respondent

SEA TRUCKS AUSTRALIA PTY LTD
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :MR T CAREY (MEMBER)

Citation  :FIELD DEPLOYMENT SOLUTIONS PTY LTD and SC PROJECTS AUSTRALIA PTY LTD [2014] WASAT 101

File No  :CC 816 of 2014

Catchwords:

Construction contracts - Status of Agreement as a construction contract - Nature of State Administrative Tribunal review

Legislation:

Constructive Contracts Act 2004 (WA), s 31, s 38, s 46
State Administrative Tribunal Act 2004 (WA), s 27, s 28, s 29, s 105

Result:

Leave to appeal granted
State Administrative Tribunal's decision affirmed
Declaration made

Category:    B

Representation:

Counsel:

Appellant:     Mr P G Clifford & Mr A P Rumsley

First Respondent           :     Mr S K Dharmananda SC

Second Respondent      :     Mr S K Dharmananda SC

Solicitors:

Appellant:     Alan Rumsley

First Respondent           :     Jones Day

Second Respondent      :     Jones Day

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

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Armstrong v Commissioner for Consumer Protection [2014] WASCA 71

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304

Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174

Diveva Pty Ltd v Nominal Defendant [2013] NSWCA 325

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45

Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2014] WASAT 101

Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44; (2006) 149 FCR 569

Hamersley Iron Pty Ltd v James [2015] WASC 10

Kidd v Resource Management and Planning Appeal Tribunal [2011] TASSC 38; (2011) 20 Tas R 339

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409

McGuirk v University of NSW [2009] NSWCA 321; (2009) 75 NSWLR 224

Osland v Secretary, Department of Justice [2010] HCA 24; (2010) 241 CLR 320

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319

Re Anstee‑Brook; Ex parte Karara Mining Ltd [2012] WASC 129

Re Anstee‑Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172; (2011) 42 WAR 35

Re Ellis; Ex parte Triple M Mechanical Services Pty Ltd [No 2] [2013] WASC 161

Red Ink Homes Pty Ltd v Court [2014] WASC 52

Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298

Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80

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Details
Case
[2015] WASC 60
Decision Date

CaseChat Overview and Summary

Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd is a case before the State Administrative Tribunal of Western Australia. The primary issue revolves around whether a particular agreement should be considered a construction contract and the extent to which the tribunal can review the decision. The dispute involves a disagreement between the parties over the terms of a contract and the obligations that arise from it. The case brings to the fore questions about the legal nature of the agreement and the scope of judicial review in such matters.

The legal issues that the tribunal had to address included determining the precise status of the agreement between the parties as either a construction contract or otherwise, and evaluating the extent of the tribunal's power to review the decision of the lower tribunal. The tribunal was also tasked with considering whether any errors of law identified in the lower tribunal's decision were vitiating, meaning they were so significant that they undermined the entire decision. This required a careful analysis of the relevant legal principles and the application of precedents, particularly those concerning the standard of judicial review and the nature of errors of law.

In its decision, the tribunal carefully examined the nature of the agreement and concluded that it did not qualify as a construction contract under the applicable legislation. Regarding the scope of review, the tribunal highlighted the need for any error of law to be a vitiating error. The tribunal referenced the decision in Sydney Water Corporation v Caruso, where the New South Wales Court of Appeal discussed the threshold for an error of law to vitiate a decision. The tribunal emphasised that an error of law must affect the decision to the extent that the outcome might have been different had the error not occurred. Based on this analysis, the tribunal found that the errors of law identified did not reach the threshold of being vitiating.

The tribunal ultimately upheld the lower tribunal's decision, confirming that the agreement in question was not a construction contract and that the lower tribunal's decision was not vitiated by the identified errors of law. The tribunal did not find it necessary to alter the outcome of the case, thereby affirming the original decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The need for any error of law to be a vitiating error was also emphasised by the decision of the New South Wales Court of Appeal in Sydney Water Corporation v Caruso.[51] In that case the Court of Appeal was dealing with an appeal from the Land and Environment Court in a land compensation case, where the right of appeal was confined to an appeal on a question of law.[52] The Court divided as to whether the relevant passage of the primary judge's reasons disclosed an error of law. Allsop P and Sackville AJA found that it did; Tobias JA found that it did not. However, all members of the court found that any error should not lead to the appeal being allowed, applying the following passage of Moffitt P in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd:[53]It is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error … It will not suffice to establish that one or some only of a number of alternative findings upon which the decision was given involved errors of law, if one alternative involved no error of law.[51] [2009] NSWCA 391; (2009) 170 LGERA 298.[52] Caruso [57].[53] Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 419; applied in Caruso [8] ‑ [9], [108] ‑ [109], [191]. Members of the court in Caruso divided on the question of who bears the burden of persuasion that an error of law vitiates a decision and what discharging that burden of persuasion entails. In the view of Allsop P no mechanical or fixed approach was warranted. However, he observed that a decision will, at least in some circumstances, be vitiated if an error went to a central issue for consideration and the appellate court cannot be persuaded to a relevant degree of satisfaction that the resolution of the central issue has not been affected.[54] Tobias JA was of the view that it was for the party asserting error to satisfy the appellate tribunal that the error has affected the relevant decision in the sense that it was one on which the relevant decision depended.[55] Sackville AJA preferred to leave the resolution of that question to a case where it was important,[56] but noted that the answer to the question would not necessarily be the same in all circumstances and judicial observations made in one context will not necessarily provide reliable guidance in a different context.[57][54] Caruso [25] ‑ [26].[55] Caruso [132].[56] Caruso [193].[57] Caruso [199]. The unresolved division of opinion in Caruso was not critical to the outcome of that case as all members of the court were satisfied that any error did not affect the result in that case. In Kidd v Resource Management and Planning Appeal Tribunal,[58] Porter J, when dealing with an administrative appeal alleging an error of law, noted the division of views in Caruso and applied what was said by the High Court in Australian Broadcasting Tribunal v Bond,[59] to the effect that an error of law will be vitiating if it can be shown that the decision under review would have been, or might have been, different if the error had not been made.[58] [2011] TASSC 38; (2011) 20 Tas R 339 [54].[59] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.