Goyder Wind Farm 1 Pty Ltd v GE Renewable Energy Australia Pty Ltd - [2025] SASCA 39

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
GOYDER WIND FARM 1 PTY LTD v GE RENEWABLE ENERGY AUSTRALIA PTY LTD & ORS
[2025] SASCA 39
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
10 April 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - MEANING ACQUIRED BY JUDICIAL INTERPRETATION
ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL - PARTICULAR CASES
Appeal from a decision of a judge of this Court dismissing an application for judicial review.

The applicant (‘Goyder’) entered into contracts with the first two respondents, who were acting together in a joint venture (collectively ‘GE-Elecnor’), for the construction of a wind farm. The second respondent, Elecnor, was responsible for the ground works.
GE-Elecnor claimed entitlement to various extensions of time and delay costs, which it claimed arose from delays to access to the site caused by Goyder. It issued three separate claims for progress payments at different times and made three applications for adjudication of those claims under the Building and Construction Industry Security of Payment Act 2009 (SA) (‘the SoP Act’). Prior to issuing these claims, GE-Elecnor had issued a Notice of Arbitration, which included an assessment of total delay costs, approximate in value to the sum of the separated amounts claimed for delay, in the progress payments. Two of the adjudication applications resulted in determinations, the second of which required Goyder to pay a progress payment of $21,029,854.77 to GE-Elecnor.
Goyder applied for judicial review, seeking to quash the second adjudication determination. It also sought to restrain GE-Elecnor from taking any steps to progress the third payment claim. The primary judge dismissed the application insofar as it related to the second determination. Her Honour allowed the application insofar as it related to the thickening costs aspect of the third claim.
The appeal raised two issues:
1.whether the principle of Anshun estoppel, whether described in that way or in terms of an abuse of process, applies to subsequent payment claims and adjudication determinations under the SoP Act; and
2.if so, whether that principle, howsoever described, applied to prevent GE-Elecnor from making and prosecuting the second payment claim for delay costs in respect of extension of time claims made by GE-Elecnor.
Held (by the Court), dismissing the appeal:
1.There is no scope under the SoP Act for the common law doctrine of issue estoppel or, consequently, the extended doctrine of Anshun estoppel to operate against a payment claim or an application for an adjudication determination under that Act.
2.There remains scope for the operation of a doctrine of preclusion under the SoP Act, in regard to conduct which may be characterised as an abuse of the processes of that Act.
3.It was not an abuse of the processes of the SoP Act for GE-Elecnor to have included the procurement premiums for foundations and earthworks in the Second Payment Claim, not having done so in the First Payment Claim, despite the earlier articulation of a comparable claim in the Notice of Arbitration.

Building and Construction Industry Security of Payment Act 2009 (SA) ss 3, 4, 8, 9, 13, 14, 15, 16, 17, 18-21, 22, 32, 33; Building and Construction Industry Security of Payment Act 1999 (NSW) ss 8, 13, 15, 22, 24, 25, 26, 32; Building and Construction Industry (Security of Payment) Act 2009 (ACT) ss 24, 38, pt 3, referred to.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635; Urban Traders v Michael [2009] NSWSC 1072; Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168; Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2016] QSC 96; Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd [2014] QSC 223; Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193; Harlech Enterprises Pty Ltd (ATF Harlech Family Trust) v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; Henderson v Henderson (1843) 67 ER 313; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; Mandeville v Better Lending Pty Ltd (2021) 139 SASR 1; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; DJL v Central Authority (2000) 201 CLR 226; Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; [1926] AC 155; Blair v Curran (1939) 62 CLR 464; Jackson v Goldsmith (1950) 81 CLR 446; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Walton v Gardiner (1993) 177 CLR 378; Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 435; AE & E Australia Pty Ltd v Stowe Australia Pty Ltd [2010] QSC 135; VK Property Group Pty Ltd v AAD Design Pty Ltd [2011] QSC 54; Machkevitch v Andrew Building Constructions [2012] NSWSC 546; Martinek Holdings Pty Ltd v Reid Construction (Qld) Pty Ltd [2009] QCA 329; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, considered.

GOYDER WIND FARM 1 PTY LTD v GE RENEWABLE ENERGY AUSTRALIA PTY LTD & ORS
[2025] SASCA 39
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA

THE COURT: In December 2021, the applicant (‘Goyder’) entered into contracts with the first two respondents, who were acting together in a joint venture (collectively, ‘GE-Elecnor’), for the construction of a wind farm. The first stage of the contract related to the construction of 38 wind turbines. The second respondent, Elecnor, was responsible for the groundworks. The first respondent, GE Renewable Energy, was responsible for the erection of the turbines.
GE-Elecnor claimed entitlement to various extensions of time and delay costs which it claimed arose from delays to access to the site caused by Goyder. It issued three separate claims for progress payments at different times and made three separate applications for adjudication of its payment claims, pursuant to the Building and Construction Industry Security of Payment Act 2009 (SA) (‘the SoP Act’). Two applications resulted in adjudication determinations. The second adjudication determination required Goyder to pay a progress payment of $21,029,854.77 to GE-Elecnor.
Goyder commenced an application for judicial review seeking to quash the second adjudication determination. In the alternative, it sought a declaration that the second adjudication determination was of no effect or alternatively was of no effect insofar as it purported to determine rights for delay costs in respect of extension of time (‘EOT’) claims made by GE-Elecnor. It also sought to restrain GE-Elecnor from taking any steps to progress the third payment claim.
The primary judge dismissed the application insofar as it related to the second determination. She allowed the application with respect to the third claim insofar as it related to the thickening costs aspect of that claim. Her Honour held that this aspect of the third claim was precluded by the Act as an impermissible re-agitation of a claim in respect of which the Adjudicator had already discharged his statutory function.[1]
[1] Goyder Wind Farm 1 Pty Ltd v GE Renewable Energy Australia Pty Ltd [2024] SASC 108.
Goyder has appealed against the decision refusing the application for relief in respect of the second claim. The issues arising on the appeal are:
·whether the principle of Anshun estoppel,[2] whether described in that way or in terms of abuse of process, applies to subsequent payment claims and adjudication determinations under the SoP Act; and
·if so, whether that principle, howsoever described, applied to prevent GE‑Elecnor from making and prosecuting the second payment claim for delay costs in respect of EOT claims made by GE-Elecnor.
Background
[2] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
The contract
Clause 1.1 of the contract is a definitions clause. It defines the term ‘Delay Event’ by reference to various events. The first of those is ‘a Principal-caused Delay’.
Clause 13.3 then provides for extensions of time. Clause 13.3(a) requires the Contractor to give the Principal written notice of a delay (‘Delay Notice’) inperforming the works as soon as reasonably possible but in any event within 10 business days of the earlier of the delay commencing or the Contractor becoming aware that the relevant event has or could cause delay. Clause 13.3(b) then provides that if a Contractor is or will be delayed by a Delay Event and, within 10 business days of the relevant Delay Notice, gives a detailed written claim requesting an extension of time to the relevant Date for Completion (the required details of which are specified), then the Contractor may be entitled to an extension of time pursuant to clause 13.3(f) (‘Extension of Time Claim’).
Clause 13.3(c) then provides for the amendment of any Extension of Time Claim or Delay Notice. Clause 13.3(d) imposes conditions precedent to any extension of time.
Clause 13.11 provides for the Contractor’s entitlement to delay costs. Clause 13.11(a) provides that where the Contractor has been granted an extension of time under clause 13.3 for, among other Delay Events, a Principal-caused Delay (‘Delay Cost Event’), the Principal must pay to the Contractor such extra costs as are directly and necessarily incurred by the Contractor in connection with the extension by reason of the Delay Cost Event. Clause 13.11(c) then provides:
(c)     The Contractor will not be entitled to any Claim or valuation for any Delay Costs:
(1)     other than as calculated by the Principal’s Representative in accordance with Schedule 5;
(2)     which could have been reasonably avoided by the Contractor if the Contractor had taken appropriate steps or actions to mitigate the extent and quantum of costs of such delay; or
(3)     which have already been included in the value of a Variation or any other payment under this Agreement.
It is apparent, then, that the entitlement to delay costs is tied to the grant of an extension of time for a Delay Event, including a Principal-caused Delay. The Contractor has obligations of mitigation and cannot make a Claim in respect of any Delay Cost already accounted for.
Clause 20.1 provides for the making of payment claims by the Contractor. Clause 20.1(a) assumed significance on the appeal. It provides:
20.1 Payment Claims
(a) Subject to clause 20.1(b) below, each calendar month, if the Contractor considers that there has been completion of a Milestone Event, or that other amounts are payable to the Contractor under the Agreement, the Contractor shall submit to the Principal’s Representative a claim for payment (Payment Claim) in the form set out in Schedule 14 detailing:
(1)the Milestone Events completed since the previous Payment Claim (or, in the case of the first Payment Claim, all Milestone Events completed prior to that Payment Claim) (Completed Milestone Events);
(2)the Contractor’s calculation of:
(A)the Milestone Amounts claimed that are attributable to the Completed Milestone Events (determined by reference to Schedule [4]); and
(B)any other amounts that are payable to the Contractor in accordance with this Agreement in respect of the Works; and
(3)supported by sufficient evidence to demonstrate the Contractor’s entitlement to payment in accordance with clauses 20.1(a)(2)(A) and 20.1(a)(2)(B), and such other information as reasonably requested by the Principal’s Representative; and
(4)that it is made under the SoP Act.
It was common ground that the reference to ‘any other amounts’ in cl 20.1(a)(2)(B) includes amounts referable to delay costs. At issue is whether the contractor GE-Elecnor was required, when making a payment claim in a given calendar month for delay costs, to include all delay costs that it considered were payable under the agreement at that time. Goyder challenged the capacity of GE‑Elecnor to make a subsequent payment claim for further delay costs in a later calendar month that, on its case, it could have made together with the first payment claim.
This contention requires consideration of various provisions of the SoP Act, to which it is convenient to turn.
The SoP Act
The SoP Act is in common terms enacted in security of payments legislation throughout Australia. In some instances, the relevant section numbering is different, albeit that the terms are relevantly the same. It will be necessary, when discussing the authorities relating to these common provisions, to identify when a provision is repeated in a different jurisdiction but with a different section number.
Section 3 of the SoP Act sets out the ‘Object of the Act’, at length. The Act is concerned with ensuring that contractors can receive and recover progress payments in the course of undertaking construction work:
3—Object of Act
(1)The object of this Act is to ensure that a person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.
(2)The means by which this Act ensures that a person is entitled to receive a progress payment is by granting a statutory entitlement to such a payment regardless of whether the relevant construction contract makes provision for progress payments.
(3)The means by which this Act ensures that a person is able to recover a progress payment is by establishing a procedure that involves—
(a)     the making of a payment claim by the person claiming payment; and
(b)     the provision of a payment schedule by the person by whom the payment is payable; and
(c)     the referral of any disputed claim to an adjudicator for determination; and
(d)     the payment of the progress payment so determined.
(4)It is intended that this Act does not limit—
(a)     any other entitlement that a claimant may have under a construction contract; or
(b)     any other remedy that a claimant may have for recovering any such other entitlement.
Section 4, the Interpretation section, defines ‘reference date’:
reference date, in relation to a construction contract, means—
(a) a date determined by or in accordance with the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract; or
(b) if the contract makes no express provision with respect to the matter—the last day of the named month in which the construction work was first carried out (or the related goods and services were first supplied) under the contract and the last day of each subsequent named month;
Claus (b) of this definition assumes that progress claims may be made each month.
Sections 8 and 9 of the SoP Act then provide for rights to progress payments on and from each reference date and the amount of a progress payment, respectively:
8—Rights to progress payments
On and from each reference date under a construction contract, a person—
(a)     who has undertaken to carry out construction work under the contract; or
(b)     who has undertaken to supply related goods and services under the contract,
is entitled to a progress payment.
9—Amount of progress payment
The amount of a progress payment to which a person is entitled in respect of a construction contract is to be—
(a)     the amount calculated in accordance with the terms of the contract; or
(b)     if the contract makes no express provision with respect to the matter—the amount calculated on the basis of the value of construction work carried out or undertaken to be carried out by the person (or of related goods and services supplied or undertaken to be supplied by the person) under the contract.
It is to be recalled that cl 20.1(a) of the contract provides for the making of a Payment Claim ‘each calendar month’. Consistently with that reference and paragraph (b) of the definition of ‘reference date’ in the SoP Act, the Payment Claims the subject of this matter were made on the last day of February 2024 and April 2024, respectively.
Part 3 of the SoP Act, commencing with s 13, concerns the procedure for recovering progress payments. Section 13 provides for payment claims:
13—Payment claims
(1)A person referred to in section 8 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the contract concerned, is or may be liable to make the payment.
(2)A payment claim—
(a)     must identify the construction work (or related goods and services) to which the progress payment relates; and
(b)     must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount); and
(c)     must state that it is made under this Act.
(3)The claimed amount may include an amount—
(a)     that the respondent is liable to pay the claimant under section 28(3); or
(b)     that is held under the construction contract by the respondent and that the claimant claims is due for release.
(4)A payment claim may be served only within—
(a)     the period determined by or in accordance with the terms of the construction contract; or
(b)     the period of 6 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied),
whichever is the later.
(5)A claimant cannot serve more than 1 payment claim in respect of each reference date under the construction contract.
(6)However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.
Section 14 then provides that a person on whom a payment claim is served, referred to as ‘the respondent’ in the SoP Act, may reply to a payment claim by providing a ‘payment schedule’ to the claimant. The payment schedule is required to identify the payment claim to which it relates and to indicate the amount of the payment (if any) that the respondent proposes to make. If the respondent does not provide a payment schedule to the claimant within a specified period, it becomes liable to pay the claimed amount on the due date for the progress payment to which the payment claim relates.
Sections 15 and 16 then provide for the consequences of not paying the claimant where no payment schedule is provided, and the consequences of not paying the claimant in accordance with a payment schedule that has been provided. In each case, the claimant can recover the unpaid portion of the claimed amount as a debt due in a court of competent jurisdiction or make an ‘adjudication application’.
Pursuant to s 17, a claimant can apply for adjudication of a payment claim in the circumstances contemplated by ss 15 and 16, or when the scheduled amount in a payment schedule is less than the claimed amount. Section 17(1) provides:
17—Adjudication applications
(1)A claimant may apply for adjudication of a payment claim (an adjudication application) if—
(a) the respondent provides a payment schedule under Division 1 but—
(i)the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim; or
(ii)the respondent fails to pay the whole or a part of the scheduled amount to the claimant by the due date for payment of the amount; or
(b) the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or a part of the claimed amount by the due date for payment of the amount.

The balance of s 17 and ss 18-21 are concerned with the mechanics of the adjudication. Section 22 then establishes the parameters of the adjudicator’s determination. It provides:
22—Adjudicator's determination
(1)An adjudicator is to determine—
(a)     the amount of the progress payment (if any) to be paid by the respondent to the claimant (the adjudicated amount); and
(b)     the date on which any such amount became or becomes payable; and
(c)     the rate of interest payable on any such amount.
(2)In determining an adjudication application, the adjudicator is to consider the following matters only:
(a)     the provisions of this Act;
(b)     the provisions of the construction contract from which the application arose;
(c)     the payment claim to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the claimant in support of the claim;
(d)     the payment schedule (if any) to which the application relates, together with all submissions (including relevant documentation) that have been duly made by the respondent in support of the schedule;
(e)     the results of any inspection carried out by the adjudicator of any matter to which the claim relates.
(3)The adjudicator's determination must—
(a)     be in writing; and
(b)     include the reasons for the determination (unless the claimant and respondent have both requested the adjudicator not to include those reasons in the determination).
(4)If, in determining an adjudication application, an adjudicator has, in accordance with section 10, determined—
(a)     the value of construction work carried out under a construction contract; or
(b)     the value of related goods and services supplied under a construction contract,
the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or those goods and services, to give the work (or the goods and services) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work (or the goods and services) has changed since the previous determination.
(5)If the adjudicator's determination contains—
(a)     a clerical mistake; or
(b)     an error arising from an accidental slip or omission; or
(c)     a material miscalculation of figures or a material mistake in the description of a person, thing or matter referred to in the determination; or
(d)     a defect of form,
the adjudicator may, on the adjudicator's own initiative or on the application of the claimant or the respondent, correct the determination.
As we will come to, the parameters that sub-ss 13(5) and (6) set around payment claims and the requirement placed on an adjudicator by s 22(4) assumed some significance on the appeal.
Section 32, still within Part 3, provides that nothing in the Part affects any right that a party to a construction contract may have under the contract. Nonetheless, s 33 provides that the provisions of the SoP Act have effect despite any provision to the contrary in any contract and that any provision of an agreement that purports, in effect, to contract out of the Act or which may reasonably be construed as an attempt to deter a person from taking action under the SoP Act, is void.
The EOT claims, the payment claims and the referral to arbitration
By letters dated 19 July 2022 and 8 August 2022, GE-Elecnor made two EOT claims, EOT 001 and EOT 002. It claimed costs arising from the alleged delays.
The delay costs components of the Payment Claims that followed had various descriptions. On GE-Elecnor’s claims, prolongation costs described indirect time related costs of labour, plant and services, and site running costs that resulted from delays. Thickening costs described the indirect costs of additional personnel and resources required as a result of the delays. Procurement premiums described direct costs paid in the form of premiums in relation to balance of plant (BoP) works incurred due to delays.
On about 27 December 2023, GE-Elecnor issued a notice of arbitration. It referred a dispute to arbitration claiming a total of $61,451,756.11 in delay costs pursuant to cl 13.11 of the contract, in respect of its EOT 001 and EOT 002 claims. The claimed total included $7,554,516.01 in prolongation costs, and $38,053,873.24 for procurement premiums including $7,591,882.22 for thickening. The sum for procurement premiums included $23,484,544.30 for foundations and earthworks.
On 29 February 2024, GE-Elecnor served on Goyder the First Payment Claim. Pursuant to cl 13.11(a) of the contract, it claimed delay costs that it alleged were directly and necessarily incurred by reason of a Delay Cost Event that was the subject of EOT 001 and EOT 002. The reference date for the claim was 29 February 2024. The claim was for an amount of approximately $19.1 million. This was comprised of approximately $3.8 million for milestone events and $15.3 million for prolongation costs and costs of thickening of indirect resources pursuant to cl 13.11 of the contract or, alternatively, as an adjustment to the contract price under cl 12.4.
Goyder served GE-Elecnor with a payment schedule on 15 March 2024. On 8 April 2024 GE-Elecnor submitted an adjudication application in respect of the First Payment Claim. It claimed in this application ‘partial payment of the total delay costs incurred by reason of extension of time claims’. It divided the costs into prolongation costs and thickening costs. GE-Elecnor claimed that delays by Goyder caused it to change its strategy for procurement and delivery of foundations and earthworks and MV (medium voltage) trenching and electrical works packages. It also claimed that it was required to supplement its resources to deliver the works by entering into additional sub-contracts.
In the First Adjudication Determination, the Adjudicator determined that the alleged delays the subject of EOT 001 and EOT 002 were Delay Events as defined in the contract. He further determined that the combined delay of EOT 001 and EOT 002 was 118 days and that GE-Elecnor was entitled to an extension of time of 118 days for practical completion. He determined that GE-Elecnor was entitled, pursuant to cl 13.11(a) of the contract, to extra costs that were directly and necessarily incurred by reason of the Delay Events.
The Adjudicator therefore accepted GE-Elecnor’s entitlement to prolongation and allowed an amount for prolongation costs. For reasons that do not matter on this appeal, he determined that it was not entitled to any amount for the thickening of indirect resources.
On 30 April 2024, GE-Elecnor served on Goyder the Second Payment Claim. This comprised $2.388 million for milestone events, $23.336 million for procurement premiums for civil BoP works (foundations and earthworks) plus 12% for overheads ($2.8 million). The procurement premiums for civil BoP works were asserted to be due to a change in procurement strategy resulting from delays caused by Goyder.
As with the First Payment Claim, the costs claimed arose out of EOT 001 and EOT 002. However, GE-Elecnor claimed that these costs were separate and distinct from those claimed in the First Payment Claim.
Goyder provided a payment schedule in response and GE-Elecnor submitted an application for adjudication (the Second Adjudication Application). On 17 July 2024, the Adjudicator delivered an adjudication on the Second Payment Claim (the Second Adjudication Determination). The Adjudicator determined that Goyder was to pay a progress payment of $21,029,854.77. This comprised:
·$1,419,518.68 for milestone events;
·delay claims comprising:
·procurement premiums for civil BoP: $21,098,688.49;
·12 per cent for overheads: $2,531,842.62;
·less delay liquidated damages of $5,932,000.00;
·GST of $1,911,804.98.
Relevantly for the purposes of this appeal, the Adjudicator was satisfied that the construction work, goods and services the subject of the delay costs determined by the First Adjudication Determination did not overlap with those that were the subject of the delay costs determined by the Second Adjudication Determination. In this regard, the procurement premiums claimed in the Second Payment Claim for additional direct costs for foundations and earthworks ($23,336,123.96) had not been claimed in the First Payment Claim.
However, Goyder drew attention to, and in the appeal relied on, the fact that the Notice of Arbitration, which preceded all three Payment Claims, claimed a comparable sum of $23,484,544.30 under the same heading. Goyder submitted that this was evidence that prior to the First Payment Claim, GE-Elecnor had formulated a claim under this heading which it did not include in that First Payment Claim. Instead, it included a comparable amount in the Second Payment Claim. Goyder submitted that GE-Elecnor’s failure to include this amount in the First Payment Claim was unexplained and, for the purpose of its argument on appeal, forensically significant.
Then on 2 July 2024, GE-Elecnor served on Goyder the Third Payment Claim. This comprised $4.630 million in respect of milestone events and $20.731 million in respect of thickening costs and procurement premiums for MV trenching work pursuant to cl 13.11 of the contract or, alternatively, as an adjustment to contract price under cl 12.4 of the contract. The Third Payment Claim has not proceeded to adjudication and is not directly relevant to this appeal. It is sufficient to note that the trial judge found the thickening costs claimed were precluded by the SoP Act as ‘an impermissible re-agitation by re-claiming thickening costs in respect of which the Adjudicator has already discharged the statutory function by rejecting the claim as lacking evidential foundation’.[3]
[3] [2024] SASC 108 at [250].
The application for judicial review
On 23 July 2024, Goyder filed an Originating Application for Review as described at the outset of these reasons. The accompanying Statement of Facts Issues and Contentions challenged the Second Adjudication Determination in the following terms:
20.The Adjudicator erred in the July 2024 Determination and that determination is susceptible to challenge on each of the following two grounds:
20.1 he failed to exercise the task required of him by s 22(4) of the Act (July Determination [256]); and
20.2 he wrongfully permitted the Contractor to reagitate the claim for Delay Costs arising out of the alleged Extension of Time as determined of 118 days (July Determination [177]).
21.The decision by the Adjudicator that he was not bound by s 22(4) of the Act to give to the Delay Costs the same value as that previously determined in the May Determination was a jurisdictional error of law by reason of which the July Determination is void.
22.Further and in the alternative, the making of the 4 June 2024 Adjudication Application by the Contractor was an abuse of process in circumstances where the Contractor had sought Delay Costs in the 8 April 2024 Adjudication Application, which application had been determined in the Contractor’s favour in the May determination.
23.In the circumstances, the taking of any steps by the Contractor to enforce the July Determination, or to suspend the works under the Contract under s 28 of the Act would be an abuse of process.
This appeal is concerned with one of the strands embedded in paragraph 22 of the Statement of Facts Issues and Contentions. The trial judge characterised Goyder’s contention to be that the Second Adjudication Determination was fatally flawed:[4]
By reason of the prohibition on the re-agitation of claims in adjudications variously categorised as abuse of process, issue estoppel, res judicata, Anshun estoppel and/or adjudication estoppel.
[4] [2024] SASC 108 at [68].
As already noted, this appeal is concerned with the strand of complaint that Goyder was content to describe as Anshun estoppel although, as we will come to, that descriptor should be approached, in the context of the SoP Act, with some circumspection.
In the first instance, the primary judge observed that the prolongation costs were claimed in First Payment Claim. The Second Payment Claim did not include any amount on account of prolongation costs. In addition, while the First Payment Claim did not include any amount for procurement premiums, the Second Payment Claim did so, this being the procurement premiums for the civil BoP foundation and earthworks component of works. In this regard, there was no overlap in the Delay Costs that were claimed in the First and Second Payment Claims.[5]
[5] [2024] SASC 108 at [94]-[95].
Goyder’s primary argument at trial with respect to the delay claims was that delay costs arising from the extensions of time granted to GE-Elecnor constituted a single claim for delay costs, notwithstanding their differing components. As the trial judge described the contention, ‘Goyder contended the work to which the delay costs added by way of increased price was the construction work which would have been carried out within the 118-day period but for the delay’.[6] For its part, GE-Elecnor disputed that delay costs were required to be characterised as a single, one-off claim. It relied on different heads of claim in each Payment Claim and emphasised that the First Adjudication Application sought partial payment of total delay costs, which in its submission made it clear that it was not a claim for all delay costs in respect of EOT 001 and EOT 002.[7]
[6] [2024] SASC 108 at [121].
[7] [2024] SASC 108 at [123]-[125].
The primary judge accepted that the two overlapping EOT claims arose from a common underpinning cause, being a delay in access to the site by reason of delays in obtaining necessary environmental approvals. However, she did not consider that it necessarily followed that delay costs arising from the delay constituted a singular claim for delay. She also rejected Goyder’s contention that delay costs were referable to or to be treated as costs of the construction works which would have been undertaken in the 118-day extension of time period.[8]
[8] [2024] SASC 108 at [133].
The judge found that the contract, properly construed, did not expressly or impliedly limit GE-Elecnor to claiming delay costs in a single claim. She held that it enabled GE-Elecnor to claim for ‘amounts’, which could include a claim to entitlement to a component of delay costs. The contract did not require the various claims for prolongation, procurement and thickening to be characterised as a single claim.[9] She also held that the provisions of the SoP Act did not require all delay costs claimed from an extension of time to be claimed in only one progress payment or adjudication application.[10] She concluded, as between the First and Second Adjudication Determinations:[11]
Properly characterised, the delay costs included in the three payment claims do not constitute a single claim for the same construction work which would have been carried out in the EOT period. Accordingly, as there was no overlap between the prolongation and procurement premium claims as between the First and Second Claims and First and Second Adjudication Determinations and the Third Payment Claim, s 22(4) did not apply to the prolongation and procurement premium claims. The Adjudicator in the Second Adjudication Determination did not value “that” work or “those” goods or services which he valued in the First Adjudication Determination. The Adjudicator in the Second Adjudication Determination therefore was not bound in the Second Adjudication Determination to apply the same value to the delay costs addressed in the First Adjudication Determination.
[9] [2024] SASC 108 at [139].
[10] [2024] SASC 108 at [140].
[11] [2024] SASC 108 at [161].
The position was different with respect to the thickening costs claimed in the Third Payment Claim. It is not necessary to address that further.
Goyder’s case at trial that the Second Adjudication Determination constituted an abuse of process was, in effect, an alternative to its contention that all delay costs necessarily constituted a single claim. The primary judge described this contention under the heading of ‘Abuse of process, issue estoppel and Anshun estoppel’:[12]
The second ground on which Goyder challenged the Second Adjudication Determination and the Third Payment Claim was abuse of process. Goyder’s position was the re-agitation of a claim previously made was impermissible under the rubric of abuse of process as was the failure to include all heads of claim in one payment claim. Goyder framed its submissions by reference to an overarching principle of abuse of process with a focus on whether the same claim has been made or could have been made in a previous payment claim. Its case was that the claim for delay costs was a single claim which had already been determined and it was an abuse to re-agitate it. Insofar as the procurement premium head of claim was not re-agitated because it was not advanced in the first payment claim, Goyder submitted it was an abuse of process to subsequently seek recovery of those costs because the alleged costs or head of claim could, and should, have been advanced in the First Payment Claim.
(Emphasis in original)
[12] [2024] SASC 108 at [190].
The judge engaged in a close analysis of the authorities to which she was referred as to the applicability of the Anshun estoppel principle to payment claims and adjudications under the SoP Act, either at common law or as a function of the Act.[13] It will be necessary to consider these authorities in some detail. For present purposes, and presaging some of the analysis to follow, her Honour did not treat the common law concept of Anshun estoppel, as a doctrine sourced from outside the legislation, as informing the analysis. Rather, she held:[14]
Based on Harlec[15] and CATCON,[16] I accept that concepts of abuse of process, in the sense of abuse of the processes of the Act, play a role in the context of payment claims and adjudications under the Act. While Lee and Kennett JJ in Harlec[17] approached the question differently, their conclusions both depended upon the construction of the legislation. In light of Kourakis CJ’s preference for the approach of Allsop P in Dualcorp[18] and the Australian Capital Territory Court of Appeal’s approach in Harlech,[19] I address the question of abuse of process from the perspective of the construction of the Act.
(Footnotes in original)
[13] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635; Urban Traders v Michael [2009] NSWSC 1072; Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168; Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2016] QSC 96; Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd [2014] QSC 223; Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193; Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42
[14] [2024] SASC 108 at [234].
[15] [2022] ACTCA 42; (2022) 18 ACTLR 245.
[16] [2019] SASC 193.
[17] [2022] ACTCA 42; (2022) 18 ACTLR 245.
[18] [2009] NSWCA 69; (2009) 74 NSWLR 190.
[19] [2022] ACTCA 42; (2022) 18 ACTLR 245.
The judge noted that s 8 of the SoP Act attached the right to a progress payment to reference dates rather than to specific work.[20] She also noted that in the present case, each calendar month constituted a reference date if GE-Elecnor considered there had been completion of a milestone event or other amounts were payable.[21]
[20] [2024] SASC 108 at [235].
[21] [2024] SASC 108 at [236].
The judge then observed that s 13 of the SoP Act required a payment claim to identify the construction work or related goods and services to which the claim related. She also noted that s 13(4) required a payment claim to include a claim for payment for some work performed in the previous six-month period.[22]
[22] [2024] SASC 108 at [237]-[238].

Having established those parameters of a claim, the judge then turned to the effect of s 13(5):[23]
Section 13(5) precludes a claimant serving more than one payment claim in respect of each reference date. However, there is no legislative provision which provides that specific work performed in the period of time encompassed by a reference date can only be claimed in a payment claim for that specific reference date. Subject again to the terms of the contract and re-agitation issues, the Act does not limit a claimant to only one opportunity to make a claim for ongoing construction work (or ongoing provision of related goods and services) in a payment claim for a reference date corresponding to the timeframe within which the specific construction work was performed. Allowing a claim to be made up to six months after construction work was carried out is inconsistent with that position.
(Emphasis added)
[23] [2024] SASC 108 at [239].
The judge then observed that s 13(6) expressly accommodated the inclusion in a payment claim of an amount included in a previous payment claim.[24] She did not consider it necessary to determine the potential ambit of this sub-section, holding:[25]
It is sufficient for present purposes to acknowledge that the Act does not prevent a claimant in all circumstances from including amounts which have been included in a prior payment claim. Some level of overlap is expressly envisaged by ss 13(6) and 22(4). Section 22(4) contemplates the prospect of some overlap and addresses it to the extent that a later adjudicator is bound by an earlier determination of “that” work or “those” goods and services unless satisfied the value has changed. By expressly allowing for overlap and articulating the consequences, by inference the subsection does not preclude the inclusion in later payment claims of claims for value other than for “that” work and “those” goods and services.
[24] [2024] SASC 108 at [241].
[25] [2024] SASC 108 at [241].
The judge reasoned, from this:[26]
In my view it follows that, subject to the terms of any contract, the provisions of the Act do not require a claim for all (non-overlapping) components of delay costs incurred by reason of a delay event to be claimed in one and one only progress claim. Further, such a conclusion would be inconsistent with the purposes of the Act.
[26] [2024] SASC 108 at [242].
The judge concluded that it was not an abuse of the processes of the Act for GE-Elecnor to include different, non-overlapping aspects of delay costs in different payment claims.[27] Consequently:[28]
… I reject Goyder’s contention that it was, and would be, an abuse of process for GE‑Elecnor to include in a payment claim after the First Payment Claim any claim for aspects of delay costs which were not included in the First Payment Claim and addressed in the First Adjudication Determination.
[27] [2024] SASC 108 at [243].
[28] [2024] SASC 108 at [244].
In order to understand the complaints that Goyder made on appeal about this reasoning and the disposition of its challenge to the Second Adjudication Determination, it is necessary to traverse the authorities. In doing so, it should be borne in mind that Goyder’s complaints were framed in terms that:
·the judge failed to make a finding as to whether GE-Elecnor was precluded from advancing a claim for delay costs in the Second Payment Claim by reason of the operation of Anshun estoppel; and
·the judge should have found that GE-Elecnor was precluded from advancing a claim for delay costs in the Second Payment Claim, by reason of the operation of Anshun estoppel.
As to the first of these complaints, we have noted earlier that the judge addressed the question of abuse of process from the perspective of the construction of the Act, rather than by applying Anshun estoppel as a doctrine sourced from outside the legislation.
Anshun estoppel and abuse of process in the context of security of payment legislation
It is first helpful to review the scope of the principle that Goyder sought to invoke. The principle was articulated in 1843 in Henderson v Henderson:[29]
[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
[29] Henderson v Henderson (1843) 67 ER 313 at 319 (Wigram VC).
In Anshun itself, the plurality articulated the Henderson principle differently:[30]
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
[30] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602-603 (Gibbs CJ, Mason and Aickin JJ).
In Tomlinson v Ramsey Food Processing Pty Ltd, the High Court explained the principle as follows:[31]
The third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.
(Footnotes omitted)
[31] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [22].
As this Court observed in Mandeville v Better Lending Pty Ltd,[32] the doctrine, expressed at its simplest, prevents a party from litigating a matter where it was unreasonable not to have raised that matter in earlier litigation. Whether there is a risk of inconsistent judgments in a given case is a significant consideration in assessing the question of reasonableness.[33] In some cases it may be determinative. However:[34]
That is not to equate the unreasonableness test with a test of the risk of inconsistent judgments. A plaintiff’s conduct in not pursuing a matter in earlier proceedings may be on any view unreasonable, having regard to the appropriate conduct of litigation, and irrespective of any such risk.
[32] (2021) 139 SASR 1 at [94].
[33] Mandeville v Better Lending Pty Ltd (2021) 139 SASR 1 at [101]ff.
[34] Mandeville v Better Lending Pty Ltd (2021) 139 SASR 1 at [106].
Considerations of expense, the importance of the issue sought to be litigated subsequently, and the motives of the moving party can all inform the question of unreasonableness.[35] The doctrine is grounded in the principle of finality.[36] Consequently, inadvertence will not ordinarily supply a justification for conduct such as to affect the objective question of unreasonableness.[37]
[35] Mandeville v Better Lending Pty Ltd (2021) 139 SASR 1 at [153].
[36] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [77].
[37] Mandeville v Better Lending Pty Ltd (2021) 139 SASR 1 at [153].
In this regard, it is important to bear in mind that the principle of finality, which Anshun estoppel serves, is not an untethered abstraction. It is a tenet of the judicial system of resolving controversies:[38]
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry[39] and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud[40]. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding[41]. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding[42].
(Footnotes in original)
[38] D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34].
[39] DJL v Central Authority (2000) 201 CLR 226.
[40] DJL v Central Authority (2000) 201 CLR 226 at 244‑245 [35]‑[38].
[41] See, eg, Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; [1926] AC 155; Blair v Curran (1939) 62 CLR 464; Jackson v Goldsmith (1950) 81 CLR 446; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353.
[42] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
This background informs the application of the doctrine, or otherwise, to payment claims made under security of payment legislation.
In Dualcorp Pty Ltd v Remo Constructions Pty Ltd,[43] the New South Wales Court of Appeal considered whether issue estoppel operated on a contractor when making a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW), which was relevantly in identical terms to those of the SoP Act. In that case, Dualcorp made a payment claim on 29 January 2008 attaching six invoices. It identified no reference date. The respondent, Remo, served a payment schedule that disputed the bulk of the first four invoices. Dualcorp applied for an adjudication. The adjudication determination, on 11 March 2008, determined that Dualcorp was entitled to an amount that was substantially less than that which it had claimed.
[43] (2009) 74 NSWLR 190.
On 3 March 2008, Dualcorp purported to serve a second payment claim annexing the same invoices and claiming the same amount. Again, it did not identify a reference date. Remo did not serve a payment schedule. Dualcorp applied for summary judgment in the District Court for the amount of the second payment claim, pursuant to s 15. A judge declined the application and Dualcorp sought leave to appeal.
Macfarlan JA, with whom Handley AJA agreed, considered that several features of the Act indicated that an adjudicator’s determination was to be ‘relevantly conclusive’.[44] These features included the object of the Act, which was ‘to provide a simple and quick means of contractors obtaining progress payments, with a mechanism being provided for the speedy mechanism of disputes’.[45] Pursuant to s 13(5), only one payment claim can be served in respect of each reference date. While an amount can be included that has been the subject of a previous claim (s 13(6)), Macfarlan JA did not read this as authorising the inclusion of a payment claim that has been the subject of an earlier adjudication.[46]
[44] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [60].
[45] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [52].
[46] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [53].
Justice Macfarlan also found support for the principle of finality in the obligation on an adjudicator under s 22(4) to accord the same value to goods and services as previously determined.[47] Section 23(2) required the respondent to pay any amount determined by the adjudicator.[48] Under s 24, failure to pay the adjudicated amount may result in construction work being suspended.[49] Section 25 provided for an adjudication certificate to be filed as a judgment for a debt in a court of competent jurisdiction.[50] Section 26 narrowly circumscribed when a new application may be made.[51] Finally, s 32 provided that adjudication determinations do not affect contractual rights.[52] An adjudication determination determines the right to progress payments, nothing more. Macfarlan JA concluded:[53]
For reasons I have given, I consider that the Act when read as a whole manifests an intention to preclude reagitation of the same issues. Thus, if questions of entitlement have been resolved by an adjudication determination, those findings may not in my view be reopened upon a subsequent adjudication.
[47] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [54].
[48] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [55].
[49] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [56].
[50] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [57].
[51] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [58].
[52] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [59].
[53] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [67].
It was against this background of the statutory provision for final and binding adjudications that Macfarlan JA turned to the questions of issue estoppel and abuse of process:[54]
Thus the primary judge here was correct in considering that “principles akin to res judicata” or “abuse of process” were applicable. Consistent with that broad description, I conclude that the principles of issue estoppel were applicable. Primarily because temporal considerations are of particular significance in relation to progress claims, the analogy between an adjudicator’s determination and a completed cause of action which the principles of res judicata would require is an incomplete one. It is best that the applicable principles be recognised to be those of issue estoppel. The more general principle of abuse of process is probably also applicable but it is unnecessary to reach a final view about this. This principle involves a broad concept “insusceptible of a formulation comprising closed categories” (Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 265 [9]) but certainly including within its ambit an attempt “to litigate anew a case which has formerly been disposed of by earlier proceedings”: Walton v Gardiner (1993) 177 CLR 378 at 393.
(Emphasis added)
[54] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [68].
Justice Macfarlan therefore found that principles of issue estoppel applied in service of the principle of finality that was evident in the provisions of the Act, by reason of the analogy between an adjudicator’s determination and a completed cause of action.
Allsop P agreed that Dualcorp was precluded from serving a second payment claim that annexed the same invoices and claimed the same amount as it had done previously. However, his Honour drew the prohibition directly from the terms of the Act. First, he observed that the claim could only have had one reference date, being the reference date under the contract or the last day of the month, pursuant to s 8(2)(b). He held there was no basis under either the contract or the Act for permitting Dualcorp to create fresh reference dates by lodging successive payment claims for the same work.[55] Then, the words of s 13(5) were determinative:[56]
Here, the work had been done; Dualcorp, the subcontractor, had left the site; it claimed payment by six invoices; six weeks later it repeated that claim by reference to the same invoices and, in my view, in respect of the same reference date. Dualcorp was prevented from serving the second payment claim. The terms of s 13(5) are a prohibition. The words “cannot serve more than one payment claim” are a sufficiently clear statutory indication that a document purporting to be a payment claim that is in respect of the same reference date as a previous claim is not a payment claim under the Building and Construction Industry Security of Payment Act and does not attract the statutory regime of the Act.
[55] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [13].
[56] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [14].
Allsop P, therefore, reasoned that a direct prohibition arose under the Act against repeating a payment claim, whereas Macfarlan JA held that the doctrine of issue estoppel operated in service of the finality of adjudication determinations that was mandated by the Act. As to this broader statement of principle, Allsop P said:[57]
I … agree that the Act as a whole generally manifests an intention to prevent repetitious reagitation of the same issues. The primary mechanism for the effectuation of that intention would appear to be s 13(5) and s 22(4). The former is sufficient to deal with the present controversy. I would leave to another occasion, should it be necessary, the consideration of principles of estoppel to prevent any apparently abusive operation of the Act not specifically covered by s 13(5) and s 22(4).
[57] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [16].
As the primary judge noted, a number of authorities have followed the majority position expressed in Dualcorp, to the effect that issue estoppel applies to prevent further payment claims that relate to costs that have already been the subject of adjudication determinations. Goyder’s essential contention as to the availability of Anshun estoppel in the present case was firmly grounded in this majority position. It relied on the well-established proposition, most recently stated by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd,[58] that Anshun estoppel is an extension of the principles of res judicata and issue estoppel. Its applicability to payment claims under the SoP Act is, in Goyder’s submission, a necessary extension of the principle as articulated by the majority in Dualcorp.
[58] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [22].
Goyder also relied on authorities subsequent to Dualcorp. It is necessary to turn to these.
In University of Sydney v Cadence Australia Pty Ltd,[59] a contractor made a payment claim under the NSW Act which included a claim for delay costs, particularised in a schedule. The adjudicator found a nil balance was due. Less than three months later the contractor made a further payment claim, which also included delay costs. With the exception of one project, the delay costs claimed in the second claim were re-claimed in respect of all periods of the delay costs claimed in the first claim. Further delay costs were also claimed. That is to say, there was an overlap but not a precise identity between the delay costs claimed in each claim. The respondent to the second payment claim sought orders from the Court that the contractor withdraw its adjudication application in respect of the second claim.
[59] [2009] NSWSC 635.
Justice Hammerschlag considered that the first adjudication determination did not create an issue estoppel in respect of the second payment claim. He reached that conclusion based on the findings of the first adjudication determination. Specifically, he held that the first adjudication did not establish that the contractor had no claim for delay costs under the contract. It only established that the first defendant had not adduced evidence which made out that claim.[60]
[60] University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [48].

However, that was not the end of the matter. His Honour nonetheless held that the contractor had exhausted its statutory entitlement to claim the delay costs that were the subject of the first claim.[61] The contractor was, as Allsop P had described it in Dualcorp:[62]
seeking “…to re-ignite the adjudication process at will in order to have a second or third or fourth go at the process provided by the Act merely because it is dissatisfied with the result of the first adjudication.”
[61] University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [51].
[62] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [2]; quoted in University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [53].
Justice Hammerschlag held that s 13(6) did not assist, as that sub-section did not contemplate a payment claim for an amount that had previously been claimed and which had been adjudicated and rejected.[63] The second payment claim consequently had the object of obtaining an advantage beyond that offered by the law and, as such, was an abuse of process.[64]
[63] University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [54].
[64] University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [55].
Justice Hammerschlag did not presume to depart from or doubt the authority of Dualcorp. Rather, he found that an issue estoppel was not established on the facts. Nonetheless, the second payment claim constituted an abuse of process which his Honour located in the limits of the facility for recovery provided by the Act.
In Urban Traders v Michael,[65] McDougall J in the Supreme Court of New South Wales explored the breath and application of the doctrine of abuse of process in the context of this legislation. Referring to Batistatos v Roads and Traffic Authority of New South Wales,[66] his Honour observed that ‘one category of abuse of process is the use of a court’s procedures in a way that is frivolous, vexatious or oppressive’.[67] He noted that in Walton v Gardiner,[68] the High Court considered that the institution and maintenance of proceedings would be an abuse of process:[69]
“if they can be clearly seen to be foredoomed to fail” or “if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings”. Although their Honours gave no examples of proceedings “foredoomed to fail”, proceedings bound to fail by application of the doctrine of issue estoppel would fall into this category.
[65] [2009] NSWSC 1072.
[66] (2006) 226 CLR 256.
[67] Urban Traders v Michael [2009] NSWSC 1072 at [35].
[68] (1993) 177 CLR 378 at 393.
[69] Urban Traders v Michael [2009] NSWSC 1072 at [36].
Justice McDougall observed that the effect of Walton v Gardiner was that the power to restrain proceedings was not just confined to proceedings in the Court itself, but extended to other tribunals where the proceedings were an abuse of process.[70] Bringing these threads together into the context of the NSW security of payment legislation, his Honour articulated what may amount to an abuse of the processes of the Act, specifically by reference to Allsop P’s judgment in Dualcorp:[71]
In the context of the Act (i.e., when asking whether there has been an abuse of the processes established by the Act), the essence of abuse of process is what Allsop P in Dualcorp described as:
(1)the “repetitious use of the adjudication process to require an adjudicator or successive adjudicators to execute the same statutory task in respect of the same claim on successive occasions” (at [2]);
(2)the use of the Act “to re-ignite the adjudication process at will in order to have a second or third or fourth go at the process provided by the Act merely because [the claimant] is dissatisfied with the result of the first adjudication” (again, at [2]); or
(3)“repetitious re-agitation of the same issues” (at [16]).
[70] Urban Traders v Michael [2009] NSWSC 1072 at [37].
[71] Urban Traders v Michael [2009] NSWSC 1072 at [38].
The relevant concept being abuse of processes of the Act, it was necessary to take into account the relevant provisions of the Act, specifically ss 13(6) and 22(4).[72] It was also necessary to take into account all relevant contextual facts and consideration of the reasons why courts intervene to prevent an abuse of process:[73]
Those reasons include intervention to prevent a person from being vexed by having to reargue an issue already authoritatively decided. Thus, in deciding whether a repetition of a claim amounts to abuse of process, it may be relevant to take into consideration whether, because of fresh claims that are advanced, the respondent will be required to defend itself in any event.
[72] Urban Traders v Michael [2009] NSWSC 1072 at [41].
[73] Urban Traders v Michael [2009] NSWSC 1072 at [42].
McDougall J did not think it possible to state exhaustively what combination of factors, including repetition, would lead to the conclusion that there is an abuse of process.[74]
[74] Urban Traders v Michael [2009] NSWSC 1072 at [43].
Then in Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd,[75] McDougall J considered a payment claim for variations that had been the subject of an earlier adjudication determination. The first adjudicator had determined that the contractor, Austin, had not proved on the balance of probabilities that it had a contractual entitlement beyond what had been paid.[76]
[75] [2010] NSWSC 168.
[76] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [16].
Watpac asserted that the second payment claim was not valid, that the first adjudication determination created an issue estoppel, into which it incorporated a claim of Anshun estoppel, and that the re-agitation of the variations in the second payment claim was an abuse of process.
Justice McDougall considered that there were two ways in which a payment claim could be described as ‘invalid’.[77] The first was as described by Allsop P in Dualcorp,[78] being where the claim was nothing more than a device to create fresh reference dates by lodging successive payment claims for the same work. Such a claim is prohibited by s 13(5). The other way was where a payment claim claimed an amount the subject of a prior claim and adjudication, where the adjudicator had determined nothing was due. This could occur on account of a want of evidence, without considering the merits of the claim, or where, as was the case in Watpac, the contractor had not established a legal entitlement.[79]
[77] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [71]; [86].
[78] Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [13]-[14].
[79] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [86].
Justice McDougall considered the case for invalidity was stronger in the first example, ‘because s 22(4) deals with the situation where, entitlement having been found, the prior adjudicator determines the value of the work that is the subject of the payment claim, and thus avoids the evil of inconsistent outcomes’.[80] However, where the result was that the claimant had made out no entitlement to be paid:[81]
In those circumstances – where there is no question of abiding by the previous valuation (or of showing that the value of the work has changed) and no question of a cumulative payment claim where work is ongoing, it is easier to see why mere resubmission might be regarded as outside the scheme of the Act, and in particular outside whatever permission to resubmit can be implied from ss 8(2)(b) and 13(6). If there is some freestanding doctrine of invalidity, separate from issue estoppel and abuse of process, then that may well define its sphere of operation. It is however difficult to see how the operation of any such principle of invalidity could add anything to the operation of issue estoppel or abuse of process.
[80] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [87].
[81] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [87].
In Watpac, the second payment claim did more than merely repeat the first payment claim. It was not simply a resubmission of the same claim for the purpose of creating a fresh reference date.[82] In this regard, McDougall J expressly considered that he should follow the majority approach in Dualcorp with respect to issue estoppel. He accepted that the ratio of the majority did not, in terms, include extended, or Anshun estoppel.[83] However, he considered that the applicable content of issue estoppel in this context should incorporate the extended principle.[84]
[82] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [88].
[83] Watpac Constructions (NSW) Pty Ltd v Austin CorpPty Ltd [2010] NSWSC 168 at [94].
[84] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [95].
To this end, his Honour commenced with the passage in Henderson, quoted above, where Wigram VC articulated the logic of the extended principle. His Honour then examined the decision of Macfarlan JA in Dualcorp closely, before concluding:[85]
In my view, both as a matter of principle and because of the clear policy of the Act, as to the finality of determinations, identified by Macfarlan JA, the doctrine of issue estoppel, in so far as it applies to determinations of adjudicators under the Act, includes the extended principle. To conclude otherwise would permit a party to retain the opportunity to resubmit claims, until finally it got an advantageous outcome, by holding back part of its case each time. Except in special circumstances, a party should put the whole of its case, in support of a particular payment claim, before an adjudicator who is charged with the statutory responsibility of deciding that parties’ entitlement to the amount claimed.
[85] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [104].
His Honour further concluded that in the circumstances of the case, it was open to Watpac to rely on the extended principle of issue estoppel.[86] However, in the circumstances, it was not necessary for it to do so, as the first adjudicator had determined the entitlement to the progress payment the subject of the second payment claim.[87] Had it been necessary to do so, however, he would have held that the extended principle applied to prevent Austin from reagitating the claim on a different legal basis from that relied on in the first payment claim. The premise on which he would have held this was that:[88]
It was unreasonable, in all the circumstances and taking into account the scheme and aims of the Act, for Austin to put its claim in respect of variations 1 to 8 on one basis before the first adjudicator and on another (and inconsistent) basis before the second. It was unreasonable for Austin to seek thus twice to engage the processes of the Act, and to put Watpac to either the trouble and expense of replying on the second occasion, or the risk of an adverse determination if it did not.
(Emphasis added)
[86] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [110].
[87] Watpac Constructions (NSW) Pty Ltd v Austin CorpPty Ltd [2010] NSWSC 168 at [116]-[117].
[88] Watpac Constructions (NSW) Pty Ltd v Austin CorpPty Ltd [2010] NSWSC 168 at [129].
Justice McDougall here relied on the concept of unreasonableness, rather than any articulation of an abuse of the processes of the Act:[89]
Thus, as I have said, it is not so much the reasons for framing a claim in a particular way as the fact that the claim was made, and thereafter decided, that is of significance in considering the application of the doctrine of issue estoppel in both its limited and its extended sense. That is why, in my analysis of the issue decided, I looked in particular to the statutory scheme. In my view, an understanding of the statutory scheme is essential to inform, and enable a proper application of, the test of unreasonableness, which lies at the heart of issue estoppel. The judgment to be made, when a claim of issue estoppel is raised, is not whether it is an abuse of process to reagitate a claim, but whether it is unreasonable to do so. See Gibbs CJ, Mason and Aickin JJ in Anshun at 603; and see Handley AJA (with whom Allsop P and Tobias JA agreed on this point) in Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 435 at [60]. The question is whether it was reasonable not to raise the matter in earlier proceedings; and as Allsop P pointed out in Champerslife at [4], merely because something could have been raised in earlier proceedings does not mean that it should have been, or that it was unreasonable not to do so.
(Emphasis added)
[89] Watpac Constructions (NSW) Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168 at [128].
Justice McDougall therefore followed the majority in Dualcorp, expressing the view that the principle of issue estoppel that the majority had articulated as applying in the context of the legislation included the extended Anshun principle. However, his Honour had no occasion to apply it. Moreover, the potential application of the principle arose where a second payment claim claimed the same amounts on a different legal basis of entitlement from that which had been rejected in the first adjudication determination. In that sense, the claim was repetitious. By contrast, in the present case, GE-Elecnor claimed entirely separate delay costs in the Second Payment Claim from those it claimed in the first.
Other single judge authorities have accepted that issue estoppel, as the majority in Dualcorp held applied in the context of security of payment legislation, includes the extended Anshun principle.[90] However, the extended Anshun principle only appears to have been applied in the context of comparable legislation, in terms, in one case, Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous.[91] In that case, Jackson J held that it was unreasonable for the respondents to re-agitate a payment claim and concluded that there was an extended or Anshun estoppel that precluded the applicant from doing so.[92] However, this was in circumstances where his Honour noted that the authorities that supported the applicability of the doctrine did so in obiter dicta only. Neither did his application of the principle depend on a determination of its applicability:[93]
It is not necessary to make any decision about the correctness of the availability of extended or Anshun estoppel as a matter of law in the present case because both the applicant and the respondents argued the case on the basis that Anshun estoppel was available in law.
[90] AE & E Australia Pty Ltd v Stowe Australia Pty Ltd [2010] QSC 135 at [32] (Applegarth J); VK Property Group Pty Ltd v AAD Design Pty Ltd [2011] QSC 54 at [19] (Boddice J); Machkevitch v Andrew Building Constructions [2012] NSWSC 546 at [56] (McDougall J).
[91] [2016] QSC 96.
[92] Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2016] QSC 96 at [163].
[93] Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2016] QSC 96 at [152].
Nonetheless, Jackson J expressed reservations about the application of the doctrine:[94]
Any analogy between litigation and the scope for an extended Anshun estoppel under the Payments Act is imperfect, to say the least. Notwithstanding that imperfection, once it is accepted that there is a role for an extended or Anshun estoppel based on a concept of unreasonableness, there must be some difficult choices as to whether one case or another raises the estoppel.
[94] Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous [2016] QSC 96 at [162].
Several authorities have framed the application of doctrines of preclusion in the context of the comparable security of payment legislation purely as functions of the legislation, and not as dependent on the application of any common law doctrine of issue estoppel, extended or otherwise. Thus in Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd,[95] Philip McMurdo J considered the application of the principle having particular regard to s 32 of the New South Wales Act considered in Dualcorp (the equivalent in the Queensland Act being s 100). This provides, as does s 32 of the SoP Act, that nothing in Part 3 of the Act affects any right that a party to a construction contract may have under the contract. His Honour considered that this spoke against the application of an independent doctrine of issue estoppel, extended or otherwise:[96]
Although Macfarlan JA described the outcome as a result of an issue estoppel, it is clear that his Honour had in mind something less than the operation of the common law doctrine of issue estoppel as it is usually understood. The doctrine of issue estoppel has been said to reflect “a central and pervading tenet of the judicial system [which] is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”.[97] Where the doctrine does apply, then subject to any qualification by legislation or agreement, it precludes the reagitation in any forum of the same issue. Yet, the estoppel for which Allstate contends, in attempted reliance upon Dualcorp, at its highest is one in which the issue could be reagitated in some forums but not others. It is a remarkable species of issue estoppel where, having regard to s 32 of the New South Wales Act, the “entitlements inter se under the contract”[98] are unaffected by it. The source of this more limited estoppel must be found, if at all, within the legislation. In my view, the legislation does not provide it. A contrary indication is that such an estoppel would be problematical in many ways. Take, for example, a case where a court declares the effect of the parties’ contract, inconsistent with an adjudicator’s decision. Is a future adjudicator, dealing with another claim under that contract, bound by the decision of the earlier adjudication (if not set aside) or that of the court?
(Footnotes in original; emphasis added)
[95] [2014] QSC 223.
[96] Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd [2014] QSC 223 at [54].
[97] D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17 [34].
[98] Martinek Holdings Pty Ltd v Reid Construction (Qld) Pty Ltd [2009] QCA 329 at [8].
Justice McDougall observed that in Dualcorp, Macfarlan JA founded his decision on a limited form of finality established by the Act. That is to say:[99]
The limited finality described by Macfarlan JA was founded, as his Honour explained, upon the combined effect of several provisions within this statute. Contrary to the submission for Allstate, the judgment of Macfarlan JA did not hold that the doctrine of issue estoppel applies in this context in all respects. The judgment identifies a finality of an adjudicator’s decision in the sense of precluding a claimant from pursuing a progress payment inconsistently with determination of an issue by an adjudicator which was fundamental to that decision.
(Emphasis added)
[99] Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd [2014] QSC 223 at [55].
This case is important in its identification of a conceptual difficulty with the proposition that issue estoppel applies to the determination of an adjudicator, or for that matter a payment claim. The finality which is served by the putative application of the principle is a limited finality of the determination of progress payments only. It does not alter rights under the contract, which may in due course require an adjustment to that which was paid as a progress payment.
In Civil & Allied Technical Construction Pty Ltd v Resolution Institute,[100] the plaintiff (‘CATCON’) sought orders to the effect that a payment claim made against it under the SoP Act was not a valid payment claim. It contended that s 13(5) of the SoP Act precluded the making of what it described as a duplicate claim with respect to the same work or goods or services that were the subject matter of an earlier claim.[101] Kourakis CJ examined the reasons of Allsop P and Macfarlan JA in Dualcorp,[102] expressing a preference for the reasoning of Allsop P.[103]
[100] [2019] SASC 193.
[101] Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193 at [51].
[102] (2009) 74 NSWLR 190.
[103] Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193 at [57].

The Chief Justice reviewed some of the subsequent authorities, discussed earlier. He noted that the SoP Act contained no express power to dismiss frivolous or vexatious applications. He considered that the difficulty in adopting principles of issue estoppel and res judicata, which are applied in the exercise of judicial power, to administrative decisions under the SoP Act, was exacerbated by s 32 of that Act.[104] That is, any doctrine of abuse of process or issue estoppel would not bind the parties in any subsequent judicial determination of the contractual dispute.[105] This is consistent with the reasoning of Philip McMurdo J in Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd.[106] The applicability of issue estoppel or abuse of process did not arise directly in that case, but his Honour observed:[107]
An alternative solution to the double adjudication problem may be to treat the judgment entered in a court pursuant to s 25 of the Security of Payment Act on a second or subsequent adjudication as an abuse of process of that court.
[104] Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193 at [63].
[105] Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193 at [64].
[106] [2014] QSC 223.
[107] Civil & Allied Technical Construction Pty Ltd v Resolution Institute [2019] SASC 193 at [65].
The most recent intermediate appellate authority on the issue is Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd.[108] In that case, the contractor Harlech made a payment claim against Beno for approximately $60,000. Beno provided a payment schedule, identifying that the amount it would pay was nil. The reasons it provided included that there was no construction contract in place and that the Act had no application to the agreement that was in place. An adjudicator determined that the full amount claimed was payable.
[108] (2022) 18 ACTLR 245; [2022] ACTCA 42.
Harlech then served two further payment claims. Beno’s response included the same grounds in support of its position that the amount payable was nil for these claims also and supplemented these with further contentions. The adjudicator held that issue estoppel prevented Beno from raising the issues on which it had been unsuccessful in its response to the first payment claim and determined that almost all of the claim was payable. Harlech filed an adjudication certificate which became a judgment of the Court. Beno brought an application for prerogative relief. The provisions of the ACT security of payments legislation were materially the same as those in the SoP Act, although with some different section numbers.
Justice Lee reviewed the authorities and engaged in a close conceptual analysis. His Honour started with the principle of finality, which he considered to be fundamental:[109]
First, it protects parties’ private interests by ensuring that litigants are not vexed in the same matter twice. Secondly, it safeguards integrity in the administration of justice by conserving the court’s finite resources and minimising the potential of inconsistent judgments: see Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (at 31 per Lord Bingham of Cornhill).
[109] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [62].
Justice Lee noted that issue estoppel was one of a number of legal rules directed to that end of facilitating the overriding goal of finality.[110] He returned to the modern articulation of the relationship between the various principles in Tomlinson v Ramsey Food Processing Pty Ltd,[111] emphasising the statement by the High Court in that case that considerations similar to those which underlie Anshun estoppel ‘may support a preclusive abuse of process argument’.[112] However, importantly for present purposes, he expressed the view:[113]
When the foundation of issue estoppel and its relationship to related principles are understood, it becomes apparent that it can arise only with respect to issues that a court or tribunal has actually addressed and determined, and only if the issues were essential to the disposition of the cause in question: Blair v Curran (1939) 62 CLR 464 (at 531–2 per Dixon J).
[110] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [63].
[111] (2015) 256 CLR 507.
[112] Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 at [22].
[113] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [66].
Justice Lee then turned to issue estoppel in the context of the line of authorities stemming from Dualcorp. With respect to the apparent incorporation of extended or Anshun estoppel by McDougall J in Watpac Constructions v Austin Corp,[114] he considered:[115]
While the scope of issue estoppel under the Act may have been “extended”, the issues to which preclusion could attach did not change. Justice McDougall reasoned that “in any determination, the issue determined by the adjudicator is the entitlement to the progress payment that is the subject of the payment claim and the adjudication application” (at [116]; emphasis added).
[114] [2010] NSWSC 168.
[115] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [82].
Justice Lee reviewed the cases discussed earlier in these reasons and concluded:[116]
A considered survey of the Dualcorp line of authorities reveals that “issue estoppel” in the context of security of payment legislation deviates from the principles of issue estoppel as commonly understood. Even where the doctrine has been found to operate, it is characterised as inchoate, narrow in scope, and based upon broader principles of preclusion.
[116] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [88].
Justice Lee then turned to the statutory scheme. He considered that there was a danger in decontextualising the principles of issue estoppel beyond their principled application, where they had developed in relation to a final and conclusive judgment on the merits.[117] He considered that issue estoppel was an inapt label to apply to the preclusion identified in Dualcorp.[118] He noted that the majority in Dualcorp recognised that the concept of ‘abuse of process’ was sufficiently broad to capture the mischief prohibited by the Act. In this regard he agreed with the characterisation by Kourakis CJ in Civil & Allied Technical Construction Pty Ltd v Resolution Institute that an attempt to enter judgment on a second or subsequent adjudication was an abuse of the process of the court.[119]
[117] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [90].
[118] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [90].
[119] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [91].
Secondly, referring to the judgment of McDougall J in Urban Traders, his Honour accepted that to purport to re-agitate a claim that had already been decided would be an abuse of the processes of the Act.[120] In this regard, he drew also on the decision of Hammerschlag J in University of Sydney v Cadence Australia Pty Ltd,[121] who, as discussed earlier, had accepted that the repetitious use of the Act was an abuse of process.
[120] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [92].
[121] [2009] NSWSC 635.
Justice Lee concluded that Beno was not precluded from restating the contentions in the second adjudication application:[122]
Simply put, the two adjudications in question concerned different work completed years apart. There was no precluded re-agitation or attempt to value the same work anew.
[122] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [100].
Justice Lee also addressed some further contentions of Harlech on the issue of finality. He held that Harlech’s contention that adjudication decisions were ‘final’ because they were immediately enforceable was unsustainable, as it overlooked the force of s 38 (the equivalent of s 32 of the SoP Act).[123]
[123] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [104].
Justice Lee also gave consideration to s 24(4) of the ACT Act, the equivalent of s 22(4) of the SoP Act, set out earlier, as central to the argument that issue estoppel was available under the Act. He observed:[124]
Section 24(4) provides that an adjudication decision is only protected from impeachment within the metes and bounds of the statutory scheme of administrative decision-making. Even then, this protection is narrow, applying only to the valuation of construction work or related goods or services for a particular reference date: s 24(4) SOP Act. Once an adjudicator fixes upon a particular amount for a particular payment claim with respect to a particular reference date, that adjudicator has exhausted the claimant’s statutory right to a payment claim for a reference date.
(Emphasis added)
[124] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [106].
As to the impact of this sub-section on the ability of parties to re-agitate facts that underpinned an earlier adjudication, his Honour emphasised the narrowness of the scope of protection provided by this sub-section:[125]
I am cognisant of the view taken by all three judges in Dualcorp that s 24(4) should not be regarded as an exhaustive statement of the matters determined by an earlier adjudication which are binding on a subsequent adjudicator. I agree that there will be matters antecedent and incidental to a valuation determination which Parliament cannot have intended be open to abuse by dissatisfied or creative claimants. But it is important also to bear in mind that the SOP Act’s purpose is to facilitate security of payment: to create a claimant’s right to interim payments, and to protect those payment claims, once adjudicated upon, from interference (except pursuant to s 24(4)(b) or s 38). It is not to protect the broader findings of adjudicators. The provisions in the SOP Act favour this conclusion.
[125] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [109].
Justice Elkaim agreed with Lee J.
Justice Kennett reached the same conclusion as Lee J but deployed slightly different reasoning. First, he distinguished between the merging of an action into a judgment on the one hand, and estoppel on the other, referring to the statement of the majority in Tomlinson:[126]
Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
(Citations omitted)
[126] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [21]; cited in Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [10].
For Kennett J, the question was whether the Act imported the necessary conclusiveness into an adjudication determination such that the common law created an issue estoppel.[127] In this regard, there was nothing in the Act that suggested a decision on an adjudication was conclusive of rights under a contract. In fact, s 38 (equivalent to s 32 of the SoP Act) provided to the contrary.[128] The SOP Act regime was merely a scheme for providing interim payments.[129] An adjudication under the Act was final insofar as it resolved a dispute about the obligation to make a progress payment. The common law would erect an estoppel between the parties preventing a re-agitation of that dispute, unless the Act provided otherwise.[130] However, relevantly, s 38(1)(a) (the equivalent of s 32(1)(b) of the SoP Act) provided that nothing in that Part affected any rights a person may have under Part 3 (the equivalent of Part 2 in the SoP Act) which included a right to a progress payment:[131]
In other words, a right to a progress payment said to arise out of a contract (which is necessarily the subject matter of any adjudication under the SOP Act) is not affected by a previous adjudication. Read in this way, s 38(1)(b) leaves no room for any issue estoppel to arise at common law, in an adjudication, in respect of issues decided in a prior adjudication.
[127] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [13].
[128] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [26].
[129] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [27].
[130] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [31], citing Blair v Curran (1939) 62 CLR 464 at 531-532 (Dixon J).
[131] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [35].
Justice Kennett therefore considered that Dualcorp was correct for the reasons given by Allsop P, which were founded on the application of s 13(5), and which had no application in Harlech. He found that while issue estoppel was conceptually applicable to the security of payments regime, that was subject to the provisions of the Act. These provisions, and in particular s 38(1)(a) (the equivalent of s 32(1)(b) of the SoP Act), left no room for its application on a second payment claim.
Contrastingly, Lee J, with whom Elkaim J agreed, held that it was conceptually problematic to apply the doctrine of issue estoppel to administrative decisions under the Act, having regard to s 38 (equivalent to s 32 of the SoP Act). However, his Honour held that the Act accommodated a doctrine of preclusion. This was characterised first by the observation, drawn from Kourakis CJ in Civil & Allied Technical Construction Pty Ltd v Resolution Institute,[132] that an attempt to enter judgment on a second or subsequent adjudication determination on matters already determined would be an abuse of the process of the Court. Secondly, a party would ‘abuse the processes of the Act’ if it purported to reagitate a claim which had already been decided.
[132] [2019] SASC 193 at [65].
No judge in Harlech considered that there was room for the common law doctrine of issue estoppel to operate in respect of a repeated agitation of the same issue on a second payment claim.
It is necessary to draw some threads together. First, insofar as some of the authorities have accepted, in obiter dicta, the extension of the operation of issue estoppel in the context of SoP legislation to incorporating Anshun estoppel, that extension has followed as a matter of logic, on the assumption that what has been applied is the common law doctrine. The only authority that has actually applied the doctrine in this context, Wiggins Island Coal Export Terminal v Monadelphous,[133] did so on the premise of its acceptance by both parties, presumably on an acceptance of that logic. However, that logic depends on acceptance of the application of issue estoppel in the first place.
[133] [2016] QSC 96.
Next, the articulation of the concept by Macfarlan JA in Dualcorp was the articulation of a narrow form of the concept, decontextualised to apply to an administrative process concerned with progress payments rather than to a judicial process. In this regard, we consider the reasoning of Philip McMurdo J in Caltex Refineries (Qld) Pty Ltd v Allstate Access (Australia) Pty Ltd,[134] Kourakis CJ in Civil & Allied Technical Construction Pty Ltd v Resolution Institute[135] and Lee J in Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd[136] to be persuasive. That is to say, we consider that the appropriate framework within which to consider complaints of the kind agitated here to be that of abuse of process of the Act.
[134] [2014] QSC 223.
[135] [2019] SASC 193 at [65].
[136] (2022) 18 ACTLR 245; [2022] ACTCA 42 at [90]-[91].
We do not consider the common law concept of issue estoppel to be applicable, having regard to the provisions of s 32, in particular. It follows from this that the extended doctrine of Anshun estoppel is similarly inapplicable. Any argument about preclusion that relies on a contention of unreasonableness, analogous to the doctrine of Anshun estoppel as applied in a curial context, must demonstrate unreasonableness that amounts to an abuse of the processes of the Act.
We would not depart from the broader analysis of Lee J in Harlech, with whom Elkaim J agreed. We are not convinced that his Honour’s interpretation of the Building and Construction Industry (Security of Payment) Act 2009 (ACT), which is enacted in relevantly identical terms to the SoP Act, is plainly wrong.[137] To the contrary, we consider it persuasive.
[137] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135].
It follows, however, that there remains scope for the operation of a doctrine of preclusion under the SoP Act. A subsequent claim for the same entitlements as previously claimed unsuccessfully, made ostensibly with respect to a new reference date so to avoid the operation of s 13(5), would likely be characterised as an abuse of the processes of the Act that are designed to achieve finality in the determination of progress payment claims. The attempt to register any second adjudication to that effect would likely amount to an abuse of the processes of the Court.
The authorities have been less supportive of the type of abuse of process for which Goyder now contends. Thus, for example, in The University of Sydney v Cadence Australia Pty Ltd,[138] Hammerschlag J found that a second claim could not be legitimately made under the Act, because:[139]
aeven though it is not exactly the same as the earlier claim, a substantial and unseverable part of it has already been adjudicated, and the first defendant has exhausted its statutory entitlement to adjudication in respect of that part; and
bthe repetitious use of the Act is in this case an abuse of process.
[138] [2009] NSWSC 635.
[139] The University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [5].
In that case, the first adjudication established that the contractor had not adduced evidence in support of a claim for delay costs under the contract.[140] The second claim for delay costs reagitated the matters the subject of the first claim, but also claimed further delay costs not previously agitated. Hammerschlag J held that this extension of the claim did not detract from the fact that the contractor was seeking to re-ignite the adjudication process, in order to have ‘another go’, on account of its dissatisfaction with the result of the first adjudication.[141] The extended component of the second claim was not severable from that which was repeated. However, his Honour clearly considered that the abuse of process lay in the aspect of repetition, not in the new delay costs claimed:[142]
In addition, given that the Act gives no right to re-make a payment claim which has earlier been made and adjudicated upon, the second claim, to the extent that it seeks to do so is not a payment claim within the meaning of the Act. It may be that where there is duplication of a part but not the whole of an earlier claim, whether there is sufficient duplication to fairly take a second claim outside the definition of payment claim is a matter of fact and degree. If it is, that requirement is clearly satisfied here by reason of the significant degree of overlap. No one suggested that it was possible or feasible for the adjudicator to deal with only part of the present application. Dealing with the present application would require the adjudicator to re-perform a statutory function which he has already discharged. It follows that the first defendant has no right to apply for the adjudication of the second claim and, contrary to what the first defendant put, the second defendant has no jurisdiction to adjudicate it.
(Emphasis added)
[140] The University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [48].
[141] The University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [53], citing Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 at [2] (Allsop P).
[142] The University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [56].

There is nothing to indicate that the University in that case had argued that the non-repeated component of the second payment claim was itself an abuse of process. It follows that the reliance that can be put on this passage in the present context is limited. Nonetheless, his Honour clearly located the likely abuse in the fact of repetition.
In Harlech, Lee J referred to these observations of Hammerschlag J with approval,[143] in support of his view that the relevant concept is not abuse of process at large, but abuse of the processes of the Act, which he indicated would occur where a party purported to re-agitate a claim that had already been decided.[144]
[143] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [94].
[144] Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [92], citing Urban Traders v Michael [2009] NSWSC 1072 at [41].
Conceptions of abuse of process of the Act have tended to coalesce around repetition. That is easily enough understood, as the mere repetition of a claim previously determined (without more) constitutes an obvious affront to the principle of finality established by the statutory regime for making progress payment claims. However, none of the cases discussed purport to establish the outer limits of what is capable of constituting an abuse of process in this regard. Thus, as McDougall J observed in Urban Traders v Michael:[145]
Further, whether or not the repetition of a claim amounts to an abuse of process requires consideration of all relevant contextual facts. In addition, it requires consideration of the reasons why the courts intervene to prevent abuse of process. Those reasons include intervention to prevent a person from being vexed by having to reargue an issue already authoritatively decided. Thus, in deciding whether a repetition of a claim amounts to abuse of process, it may be relevant to take into consideration whether, because of fresh claims that are advanced, the respondent will be required to defend itself in any event.
I do not think that it is possible to state in some exhaustive fashion what combination of factors, including repetition, will lead to the conclusion that there is an abuse of process. (See, as to this, French CJ, Gummow, Hayne and Crennan JJ in Jeffery & Katauskas Pty Limited v SST Consulting Pty Limited [2009] HCA 43 at [27].) My concern is simply to make it clear that, in my opinion, it would be inconsistent with the provisions of the Act to which I have referred above to hold that repetition, by itself and without more, always amounts to abuse of process.
[145] [2009] NSWSC 1072 at [42]-[43].
The Second Payment Claim in the present case contained no repetition. It was made in respect of a different reference date from that of the First Payment Claim. In circumstances where we have rejected the applicability of the doctrine of Anshun estoppel, it is necessary to consider Goyder’s contention that the Second Payment Claim nonetheless constituted an abuse of the processes of the Act.
Whether the Second Payment Claim was an abuse of the Act’s processes
Goyder contended that it was not reasonable for GE-Elecnor not to have included the procurement premiums for foundations and earthworks in the First Payment Claim, given the earlier articulation of a comparable claim in the Notice of Arbitration. This was a non-overlapping claim made in respect of a later reference date but which, given the claim in the Notice of Arbitration, could have been made as part of the First Payment Claim. This made it unreasonable in the sense that it amounted to an abuse of the processes of the Act.
It is helpful to set out the particularised circumstances of why Goyder asserted the Second Payment Claim was unreasonable:
2.1As at the date of the First Payment Claim, 29 February 2024, the First and Second Respondents had incurred virtually all of the delay costs later claimed in the Second Payment Claim.
2.2The First and Second Respondents had, by the time of their Notice of Arbitration given on 27 December 2023, and thus before the First Payment Claim was made, formulated and quantified their claim for the delay costs later claimed in the Second Payment Claim.
2.3The First and Second Respondents made a tactical decision not to advance a claim for all delay costs in the First Payment Claim.
2.4The basis for the delay claims in the First and Second Payment claims was the same, in that they were each founded upon extension of time claims EOT 001 and EOT 002 made by the First and Second Respondents.
2.5The effect of the serial agitation by the First and Second Respondents of their claim for delay and delay costs has been that the Applicant has been vexed by extended and expensive adjudication proceedings stretching over several months, and long after the periods to which extension of time claims EOT 001 and EOT 002 relate, and requiring voluminous and repetitious materials.
The primary judge, having rejected the applicability of common law Anshun estoppel, approached the question of abuse of process by reference to the provisions of the Act.[146] She observed that there was no statutory provision that specific work performed in a period of time encompassed by a reference date could only be claimed in a payment claim for that specific reference date.[147] Indeed, ss 13(6) and 22(4) envisage some level of overlap. Sub-section 22(4) prescribes the limits of what may not be submitted for adjudication again in such a case (that is, the value of ‘that work or those goods and services’, the value of which has already been determined). Even then, the subsection contemplates a party being able to satisfy an adjudicator that the value of the goods and services has changed since the first determination.
[146] [2024] SASC 108 at [234].
[147] [2024] SASC 108 at [239].
The primary judge considered that these provisions of the Act were sufficient to conclude that the SoP Act does not require all non-overlapping components of a delay claim to be included in a single progress payment claim.[148] Goyder submitted, however, that this did not ask the correct question. That is, it is not simply a matter of what the Act technically does not prohibit. Goyder submitted that having regard to the Object of the Act, the principle of finality given effect in the Act, and the terms of the contract, the breaking up of the claim was so unreasonable as to amount to an abuse of the processes of the Act.
[148] [2024] SASC 108 at [242].
In the present context, any putative abuse of process of the SoP Act must take its character from an identifiable assault on the principle of finality embedded in the statutory procedure for claiming progress payments and having them adjudicated. The first and obvious difficulty for Goyder is that where a second payment claim is made that has no overlap with the first, it does not engage in that assault by repetition. The cases that have addressed this question do so from the premise that an abuse will involve some degree of repetition.[149]
[149] The University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635 at [56]; Urban Traders v Michael [2009] NSWSC 1072 at [42]-[43]; Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd (2022) 18 ACTLR 245; [2022] ACTCA 42 at [94].
It is difficult to conceive of a situation where a non-overlapping claim for delay costs that:
(a)is incurred by reason of a delay event that is already the subject of a claim for delay costs; and
(b)otherwise conforms with the requirements of Part 3 of the SoP Act;
would amount to an abuse of the processes of that Act analogously to the application of Anshun estoppel in the curial context. The processes of the Act, and their concern with finality, are not concerned with what could be viewed as unreasonable commercial behaviour in the abstract. It is necessary for Goyder to show how the finality provided for under the SoP Act has been undermined, notwithstanding the absence of repetition.
In this regard, it is relevant to note s 3 of the SoP Act, which sets out the Object of the Act. To reiterate, s 3(1) provides:
(1)The object of this Act is to ensure that a person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.
This object is expressed in terms that serve the contractor’s imperative for timely progress payments. It is difficult to see that a contractor’s staggering of non‑overlapping payment claims, that could have been made together, and earlier, necessarily cuts across that object or the principle of determining, expeditiously and finally, progress payment claims. A contractor may have sound commercial reasons for staggering claims that justify the potential extra cost and time, while still making them within the six-month period mandated by s 13(4)(b).
In any event, to speculate as to what might conceivably constitute an abuse of the Act’s processes where separate, non-overlapping claims are made with respect to different reference dates, raises the problem of evidence. For the sake of completeness, we address the evidence relied on by Goyder, notwithstanding our difficulty of principle with the application of the concept to a non-overlapping claim.
On the Originating Application for Review, the burden of proof in showing the unreasonableness of the actions of GE-Elecnor, such that they constituted an abuse of the processes of the Act, lay with Goyder.
The primary piece of evidence that Goyder relied on in support of its claim of unreasonableness was the Notice of Arbitration. This showed that GE-Elecnor had already formulated a claim for an amount that was broadly comparable with the amount claimed in the Second Payment Claim. In circumstances where that mere fact does not cut across the principles of finality embedded in the procedures of the SoP Act, this fact cannot be accorded much weight. There is no evidence as to why GE-Elecnor effectively held back that claim. Further, the amount, while comparable, is less, if only by about $150,000.
Next, the fact that the delay costs the subject of the Second Payment Claim could have been claimed in the First Payment Claim raises the prospect of creating inefficiency in the processes and with that, unnecessary cost. That of itself does not impinge upon the finality of the processes that have been undertaken. Nevertheless, Goyder relied on evidence filed in support of the Originating Application as to the burden placed on it by the event of successive claims. By way of example, an affidavit of Joshuah Vaughan Williams dated 23 July 2024, filed on behalf of Goyder, included the following passage:
The time and cost of dealing with the Contractor’s adjudication applications has been significant. In each case, material effort is required both internally and externally, including by appropriate experts, to consider and respond to the applications. In each case, the adjudication materials have been extensive. Although successive adjudications have the same basis, it is necessary to review the materials for differences. The exercise is a burden that distracts relevant Goyder personnel from their duties in time frames that are short and intensive, including $63,855 in adjudicator fees alone. The first adjudication application itself comprised multiple boxes of lever arch binders, including accompanying lay and expert materials and annexures. The second adjudication application also comprised multiple boxes of lever arch volumes.
While we accept that there would be some inefficiency associated with separate claims and adjudications, this description of the associated cost and burden is relatively high-level. That is to say, it does not (and likely could not) offer an analysis of the extra cost and effort required by having two adjudications of the separate claims as opposed to one earlier claim that incorporated both sets of claims. A single adjudication would be a longer and more complicated affair than either of the two separate ones.
The other relevant consideration is the terms of the contract. In this regard, Goyder relied on cl 20.1 of the contract, set out above. Specifically, it submitted that the terms of cl 20.1(a)(2)(B), when read together with cl 20.1(a)(1), contemplated that the contractor’s calculation was required to include all amounts that it considered were payable.
Goyder did not go so far as to submit that the contract required the contractor to do this as a matter of contractual obligation. As we understood the submission, this was rather presented as something that informed the determination of what was reasonable, a failure to adhere to which evidenced the contractor’s abuse of the progress payment processes of the Act.
We do not accept this submission. Clause 20.1 is nothing more than a provision for the processes that the Contractor is entitled to use in the event that it considers it is entitled to make a claim. It is permissive. It contributes no standard of reasonableness to the actions of the parties.
Disposition of the appeal
It is true to say, as Goyder submitted, that the primary judge, having decided that the terms of the SoP Act did not require a claim for all non-overlapping components of delay costs to be claimed in one progress payment claim only, did not go on to determine whether not to do so was nonetheless so unreasonable as to amount to an abuse of the processes of the Act. However, that was in circumstances where Goyder had (relevantly) pitched its case as one of Anshun estoppel. The judge rejected the applicability of that doctrine. We have rejected it also. There was nothing further for the primary judge to decide.
Goyder’s contention that the Second Payment Claim nonetheless constituted an abuse of the processes of the SoP Act fails in any event. The integers of unreasonableness on which Goyder relies are, at best, contestable matters of commercial practice. Goyder has not identified any fact by reference to which it could be said that the Second Payment Claim undermines the principle of finality of adjudications that is given service by the provisions of Part 3 of the SoP Act.
We dismiss the appeal.