Hitachi Ltd v O'Donnell Griffin Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Hitachi Ltd v O’Donnell Griffin P/L & Ors; O’Donnell Griffin P/L v Hitachi Ltd & Ors [2008] QSC 135

PARTIES:

HITACHI LIMITED T/AS HITACHI AUSTRALIA PROJECT OFFICE ABN 35 002 539 693
(applicant)
v
O’DONNELL GRIFFIN PTY LTD ABN 003 905 093
(first respondent)
PHILIP DAVENPORT
(second respondent)
ADJUDICATE TODAY PTY LTD ABN 39 109 605 021
(third respondent)


O’DONNELL GRIFFIN PTY LTD ACN 003 905 093
(applicant)
v
HITACHI LIMITED T/AS HITACHI AUSTRALIA PROJECT OFFICE ABN 35 002 539 693
(first respondent)
SEAN O’SULLIVAN
(second respondent)
ADJUDICATE TODAY PTY LTD ABN 39 109 605 021
(third respondent)

FILE NOS:

BS11431 of 2007
BS3138 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

17 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29, 30 May 2008

JUDGE:

Skoien AJ

ORDER:

1.  In application BS11431 of 2007; application dismissed
2.  In application BS3138 of 2008; application allowed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – adjudication of progress payments under the Building and Construction Industry Payments Act 2004 (Payments Act) – where adjudication considered selected larger variation claims but not numerous small claims – where applicant/respondent sought an order that adjudication decision was void – whether having regard to legislative intent, s 26 Payments Act requires an adjudicator to examine each and every variation in a large claim – whether the adjudicator acted bona fides – whether the adjudicator observed procedural fairness

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – adjudication of progress payments under the Payments Act – where payment claim included some variation claims submitted in previous adjudication – where previous adjudicator had considered those claims without assessing a specific value – whether the value of those claims had been “previously decided” for the purposes of s 27 Payments Act – whether subsequent adjudicator’s treatment of those claims constituted jurisdictional error

PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – approbation and reprobation – where party adopted inconsistent approaches in two adjudications – whether conduct amounted to an abuse of process – whether conduct amounted to a denial of natural justice – whether the second adjudication should be set aside as void

Building and Construction Industry Payments Act 2004, s 17, s 18, s 21, s 23, s 24, s 26, s 27
Constitution of Queensland 2001, s 58

Abel Point Marina (Whitsundays) P/L v Uher & Anor [2006] QSC 295, applied
Amflo Construction P/L v Anthony Jefferies [2003] NSWSC 856, cited
Bitannia P/L v Parkline Constructions P/L (2006) 67 NSWLR 9, cited
Brodyn P/L v Davenport [2003] NSWSC 1019, considered
Brookhollow P/L v R & R Consultants P/L & Anor [2006] NSWSC 1, considered
Coordinated Construction Co P/L v Climatech (Canberra) P/L & Ors [2005] NSWCA 229, considered
Fifty Property Investments Pty Limited v Barry J O’Mara & Anor [2006] NSWSC 428, applied
Firedam Civil Engineering v KJP Construction P/L

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Details
Case
[2008] QSC 135
Decision Date

CaseChat Overview and Summary

Hitachi Ltd, a subcontractor, sought judicial review of two adjudication decisions concerning progress payments under the Building and Construction Industry Payments Act 2004 (Payments Act). The first adjudication considered selected larger variation claims, while the second adjudication did not address numerous smaller claims. Hitachi argued that the adjudicator failed to examine every variation in the large claims as required by the legislative intent and procedural fairness. The dispute centred on whether the adjudicator acted in good faith and whether the adjudication process was fair.

The court examined whether section 26 of the Payments Act required the adjudicator to consider every single variation in a large claim. The court also assessed if the adjudicator's decision was made without bias and whether procedural fairness was observed. Furthermore, the court evaluated if the value of certain variation claims had been "previously decided" for the purposes of section 27 of the Payments Act. The court also considered whether the subsequent adjudicator’s treatment of these claims constituted a jurisdictional error.

The court held that the adjudicator did not need to examine every single variation in a large claim to act in accordance with the legislative intent and procedural fairness. The court found that the adjudicator acted in good faith and observed procedural fairness. The court also concluded that the value of certain claims had not been "previously decided" for the purposes of section 27, and therefore, the subsequent adjudicator's treatment of those claims did not constitute a jurisdictional error. The court further found that the party's inconsistent approaches in the two adjudications did not amount to an abuse of process or a denial of natural justice.

The court dismissed the application related to the first adjudication and allowed the application concerning the second adjudication. The second adjudication was set aside as void.

Orders

Orders of the court

1. In application BS11431 of 2007; application dismissed

2. In application BS3138 of 2008; application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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