Fulton Hogan Construction Pty Ltd v Cockram Construction Ltd

Fulton Hogan Construction Pty Ltd brought an application for judicial review against Cockram Construction Ltd in the Supreme Court of New South Wales. The case centred on an adjudication process under the Building and Construction Industry Security of Payment Act 1999 (NSW), specifically concerning whether an adjudicator had failed to provide adequate reasons for a determination, contravening s 22(3)(b) of the Act. The dispute arose from an adjudication in which Fulton Hogan sought payment from Cockram under a contract for construction services. The adjudicator ruled in Cockram's favour, but Fulton Hogan questioned the adequacy of the reasons provided for the determination.

The court was required to determine several key issues. Firstly, whether the adjudicator's failure to provide adequate reasons constituted a ground for judicial review under s 22(3)(b) of the Act. Secondly, if parts of the determination were affected by jurisdictional error, whether those parts could be severed and quashed using the prerogative writ of certiorari. Lastly, the court needed to interpret whether the adjudicator’s determination was an instrument under s 32 of the Interpretation Act 1987 (NSW), which would affect the application of the doctrine of severability.

The court held that the adjudicator's failure to provide adequate reasons did constitute a jurisdictional error, and the reasons provided were insufficient under s 22(3)(b). The court found that discrete aspects of the determination could be severed and quashed if they were affected by jurisdictional error. It was determined that the adjudicator's determination was indeed an instrument under s 32 of the Interpretation Act 1987 (NSW), allowing for the application of the doctrine of severability. Consequently, the parts of the determination that were not affected by jurisdictional error could stand, while the parts that were affected were quashed. The court made orders quashing the determination to the extent that it was affected by jurisdictional error and directed that the matter be referred back to the adjudicator for a new determination.