INPEX Operations Australia Pty Ltd v JKC Australia LNG Pty Ltd (No 2) - [2017] NTSC 61

CITATION: INPEX Operations Australia Pty Ltd & Anor v JKC Australia LNG Pty Ltd & Anor (No 2) [2017] NTSC 61
PARTIES:INPEX OPERATIONS AUSTRALIA PTY LTD (ABN 48 150 217 262)

and
ICHTHYS LNG PTY LTD
(ACN 150 217 299)
v
JKC AUSTRALIA LNG PTY LTD
(ABN 14 154 383 409)
and
DAVIS, Hugh

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:6 of 2017 (21706782)
DELIVERED ON:  2 August 2017
DELIVERED AT:  Darwin
JUDGMENT OF:  KELLY J

CATCHWORDS:

ADMINISTRATIVE LAW – Judicial review – Whether order in the nature of mandamus should be made at the request of unsuccessful defendant consequential upon order in the nature of certiorari granted to plaintiff – Order refused
BUILDING AND CONSTRUCTION – Security of payments – Adjudication – Whether adjudicator can extend time for making a determination after that time has expired – No power to extend time after time expired – Construction Contracts (Security of Payments) Act 2004 (NT) ss 33, 34(3)(a)
Building and Construction Industry Security of Payment Act 1999 (NSW) s 21(3), s 26
Building and Construction Industry Security of Payment Act 2002 (Vic) s 18(3)(c), s 18(3)(d), s 18(3)(e), s 22(4), s 22(4A), s 28(3)
Construction Contracts Act 2004 (WA) s 31
Construction Contracts (Security of Payments) Act 2004 (NT) s 3, s 31, s 31(1), s 31(4), s 33, s 33(1), s 33(1)(b), s 33(2), s 33(3), s 34(3)(a), s 39(1), s 43(2), Division 5
Interpretation Act 1978 (NT) s 41, s 59
Supreme Court Rules (NT) o 56
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, referred to
Alliance Contracting Pty Ltd v James [2014] WASC 212; Cardinal Project Services Pty Ltd v Hanave Pty Ltd(2011) 81 NSWLR 716; Field Deployment Solutions Pty Ltd v Jones [2015] WASC 136 – followed
Maxstra Constructions Pty Ltd v Gilbert & Ors [2013] VSC 243 – not followed
REPRESENTATION:
Counsel:
Plaintiffs:C Colvin SC with A Wyvill SC and W Roper
First Defendant:  M Solomon SC with B Millar
Solicitors:
Plaintiffs:Paul Maher Solicitors
First Defendant:  De Silva Hebron
Judgment category classification:    B
Judgment ID Number:  Kel1714
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
INPEX Operations Australia Pty Ltd & Anor v

JKC Australia LNG Pty Ltd & Anor (No 2) [2017] NTSC 61

No. 6 of 2017 (21706782)
BETWEEN:

INPEX OPERATIONS AUSTRALIA PTY LTD
(ABN 48 150 217 262)

First Plaintiff

AND:

ICHTHYS LNG PTY LTD
(ACN 150 217 299)
Second Plaintiff

AND:

JKC AUSTRALIA LNG PTY LTD (ABN 14 154 383 409)

First Defendant

AND:

DAVIS, Hugh

Second Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
EX TEMPORE
(Delivered 2 August 2017)

I invited, and have received, written submissions from the parties as to the appropriate ancillary orders (if any) which should be made consequential upon the order in the nature of certiorari quashing the decision of the Adjudicator, which I made on 15 June 2017. The same terms are used in this decision as in the primary decision handed down on 15 June 2017: the plaintiffs are referred to as INPEX, the first defendant as JKC, the second defendant as the Adjudicator and the Construction Contracts (Security of Payments) Act 2004 (NT) as the Act.
JKC has submitted that I should remit the application to the Adjudicator for him to perform his function under s 33(1)(b) of the Act. To accomplish this, JKC submitted it would be appropriate for me to make orders in the nature of mandamus (and orders ancillary thereto) in the following terms:
(a)The plaintiffs and the first defendant provide these orders to the second defendant as soon as practicable.
(b)The second defendant provide the Construction Contracts Registrar (“Registrar”) with these orders and seek the Registrar’s consent under s 34(3)(a) of the Act to extend the time for him to perform his function under s 33(1) of the Act.
(c)The second defendant perform his function under s 33(1) of the Act within the time period as extended under s 34(3)(a) of the Act.
(d)The second defendant notify the first plaintiff and the first defendant of the basis upon which he was proposing to make his determination, being that, if the terms in Division 5 of the Schedule to the Act are to be imported into the Contract, the first plaintiff will be liable to pay the whole amount claimed by the first defendant in its adjudication application dated 3 January 2017, because it did not provide a notice of dispute within 14 days of receiving the first defendant’s payment claim as required by cl 6(2) of Division 5.
(e)The second defendant allow the first plaintiff and the first defendant a reasonable opportunity to make further submissions and provide further material on the issue of whether, if the terms in Division 5 of the Schedule are to be imported into the Contract, the first plaintiff will be liable to pay the whole amount claimed by the first defendant in the Application, because it has not provided a notice of dispute within 14 days of receiving the first defendant’s payment claim as required by cl 6(2) of Division 5.
I have read the submissions of both parties and I do not think it would be appropriate to attempt to have the matter referred back to the Adjudicator to make a determination on the merits by the expedient of the orders sought by JKC.
First, I do not think it is open to JKC to seek an order in the nature of mandamus in the present proceeding. There is no proceeding before me seeking such an order. The only order sought in the present proceeding is an order in the nature of certiorari sought by INPEX and INPEX was successful. An order in the nature of mandamus at the instance of an unsuccessful defendant can hardly be said to be consequential upon an order in the nature of certiorari granted at the instance of a plaintiff.[1]
Second, the order now being sought by JKC is contrary to the way JKC ran its case at trial. It would presumably have been possible for JKC to have counterclaimed seeking an order in the nature of mandamus as an alternative to its defence of the Adjudicator’s determination. Instead, JKC argued that it and its sub-contractors down the chain would have no other way of obtaining payment of the $85 million the subject of the determination on an interim basis if certiorari were to be granted.
Third, there are in any event conceptual difficulties with the orders sought. The purpose of the orders sought by JKC is to remit the matter to the Adjudicator to make a determination on the merits under s 33(1)(b). The proposed orders would not have that effect.
Given the strict time frames in the Act, the availability of the remedy sought would depend upon the ability and willingness of the Adjudicator to extend time to make his decision under s 34(3)(a) and the willingness of the Registrar to consent to such an extension. (JKC’s submissions as to the appropriate orders assume that such an extension of time would be given as a matter of course.)
For reasons that are discussed more fully below, I do not think the Act permits the Adjudicator to extend time under s 34(3) after the time fixed for making a determination has expired. The facts of this case obscure the issues somewhat because the Adjudicator in fact made a purported determination and it is only retrospectively, on the quashing of that purported determination, that it became known that the Adjudicator had not made a determination and that the deeming provisions of s 33(2) had come into effect at some time in the past. In the ordinary course, an adjudicator would make a decision dismissing an application, or make a determination, or fail to make a decision at all. The Act envisages that the adjudicator would do so within 10 days or apply for an extension of time beforehand and it would be known at the end of 10 days (or at the end of the extended time) whether or not he had failed to make a decision. If he had failed to make a decision at the end of the 10 days (or extended time period) the deeming provision would come into effect: he would be taken to have dismissed the application. It does not seem logical to suppose that the legislature intended an adjudicator to have the ability to extend time for making a decision at a time when the Act provides that he is deemed to have already made a decision.
Even if it is theoretically possible to extend time under s 34(3)(a) after an application has been deemed to be dismissed under s 33(2), the willingness of the Adjudicator to extend time and of the Registrar to consent to an extension of time cannot be taken for granted. This is particularly so given the time elapsed, the objectives of the Act to provide for the rapid resolution of payment disputes arising under construction contracts, and the tight, fairly inflexible time frames specified in the Act to put this objective into effect.
I have no jurisdiction in the present proceeding to order the Registrar to do anything. Further, the Registrar has a duty to consider any application for an extension of time on the merits taking into account all relevant considerations and having regard to the objectives of the legislation.
There is also the consideration that my power under Order 56 of the Supreme Court Rules (NT) extends only to ordering the Adjudicator to exercise his discretion according to law – not to directing him how to exercise it. Like the Registrar, the Adjudicator would have an independent duty to consider whether or not to apply to the Registrar for consent to extend time for making a determination, taking into account relevant considerations and having regard to the objects of the legislation.
The consequence is that that the proposed orders would not in fact have the effect of referring the matter back to the Adjudicator to determine the Application[2] on the merits under s 33(1)(b).
There is also a difficulty in identifying a nexus between proposed order (b) and the nature of the error made by the Adjudicator. The Adjudicator’s error was not an unreasonable failure to extend time: it was a failure to accord natural justice. Proposed order (b) is unrelated to that error. It is simply a way of trying to get around the time limits imposed by the Act.
There is no such difficulty in identifying a nexus between the error made by the Adjudicator and proposed orders (d) and (e). However, there is a further conceptual difficulty with those proposed orders. Usually, if a decision is to be quashed and remitted to the decision maker to decide according to law, it is appropriate to identify the error and then remit the matter to be dealt with in a way that corrects that specific error.[3] That is what JKC has attempted to do in proposed orders (d) and (e). The identified error was failure to accord natural justice in relation to a specific issue and the proposed orders attempt to require the Adjudicator to accord natural justice on the issue in question. However, the Adjudicator made a further error (albeit one which, on its own would probably not have been amenable to judicial review). In my judgment of 15 June 2017, I said:
As both parties were (and are) agreed, the Adjudicator’s decision in the Determination that the implied terms in Division 5 of the Schedule were imported into the EPC Contract is plainly wrong, inter alia for the reasons set out in JKC’s submissions set out at [18] above and echoed in the submissions of INPEX’s solicitors summarised in the following paragraphs.[4]
Therefore, to order the Adjudicator to invite and consider further submissions from the parties on that issue would be, at best, an artificial exercise (and a waste of time and costs) and, potentially, an invitation to the Adjudicator to make an unreasonable decision. If it was not unreasonable in the first instance for an Adjudicator with no legal qualifications to decide that issue contrary to the reasoned submissions of two highly qualified lawyers – one on either side – there would be a strong argument that it would be unreasonable (in the Wednesbury[5] sense) for him to decide it that way again in the face of an additional, fairly strong obiter comment from the judge in a case to which he was a party – albeit that he took no part in the proceeding.

JKC’s contentions

JKC relied on Maxstra Constructions Pty Ltd v Gilbert & Ors[6] (“Maxstra”) and other decisions of Vickery J in the Supreme Court of Victoria as authority for the proposition that it would be appropriate to remit the matter to the Adjudicator to make a determination under s 33(1)(b) first directing him to seek the Registrar’s consent to an extension of time.
In written submissions, counsel for JKC said:
The Court was initially called upon by the plaintiffs to determine whether the Adjudicator’s purported determination was made within the ambit of the jurisdiction conferred by the Act (and to quash it if it was not). The Court is now also called upon by JKC to compel the proper performance by the Adjudicator of his function. Once an adjudicator accepts an appointment, he or she has a duty to perform his or her functions under the Act. In particular, section 33(1) requires a decision to dismiss or a determination as to liability to be made.
That submission does not contain a complete description of the function conferred on an adjudicator under the Act. Section 33 requires “a decision to dismiss or a determination as to liability to be made” within certain specified time limits and s 33(2) sets out the consequences if a decision is not made within time: the application is taken to have been dismissed. This is an important difference between the Northern Territory legislation and the Victorian legislation under consideration in the cases relied on by JKC.
In Maxstra (and the other Victorian cases) there was no need for the Court to make an additional order requiring the adjudicator to extend time, the Court could simply remit the matter to the adjudicator to make a determination.
The legislation under consideration in Maxstra was the Victorian Building and Construction Industry Security of Payment Act2002. There is no equivalent of s 33(2) in the Victorian legislation. That Act provides that the adjudicator must make a determination within certain time limits[7] but does not provide that, if the time limits are not complied with, the application is deemed to have been dismissed. Instead, it provides that in those circumstances, the applicant may withdraw the application for adjudication and make a fresh application notwithstanding that the time limits for the making of applications set out elsewhere in the Act may have expired.[8]
As a result, the contention before the Court in Maxstra was that “some elements of timing found in the provisions of the Act would tend to suggest that the remedy of remitting a matter back to the original tribunal for determination would not be open as a matter of implication”.[9] The court held that no such implication arose. Under the Northern Territory legislation, it is not a matter of implication. If an adjudicator has not made a decision within the time specified in the Act, he is deemed to have made a decision dismissing the application.[10]
It would be obviously inappropriate for the Court to order the Adjudicator to make a determination under s 33(1)(b) if the Act precludes him from doing so. In my view, the Act does preclude an adjudicator from making a determination after the time limit has expired because s 33(2) deems him to have already made a decision dismissing the application on the expiration of that fixed time.

Does s 34(3) permit the time for making a determination to be extended after that time has expired?

In my view, it would not be open to the Adjudicator to extend time for making a determination under s 34(3).
Counsel for JKC submitted that “the function and power to extend the time under s 34(3)(a) does not have to be exercised prior to the expiry of the prescribed time as defined by s 33(3)”, but the reasons for so submitting are not compelling given the logical difficulty involved in holding that the legislature intended that an adjudicator would be able to extend the time for making a decision at a time after the Act deems him to have already made one.
JKC points out that the Act does not say the power can only be exercised prior to the expiry of the time limit and that where the Act requires a right or power to be exercised before the occurrence of a particular event, it says so. The example given is s 31(4) which provides that an application to the Registrar for a declaration that an adjudicator is disqualified under s 31 must be made before the person making the application is notified of a decision or determination made under s 33(1). However, the purpose of specifying this in s 31(1) is obvious – to preclude a person from waiting to see whether they receive a favourable decision before applying for a declaration that the adjudicator is disqualified – a course that might otherwise have been open if no such limitation had been imposed.
JKC also points out that an adjudicator retains some residual functions after the prescribed time has expired, for example the power to correct errors[11] and to give written notice of the decision and the reasons for it to the parties and to the Registrar.[12] That is neither here nor there.
JKC also submits that “any deemed dismissal operates only subject to any time extension”. Section 33(2) provides that the application is taken to be dismissed if it is not dismissed or determined under subsection (1) within the prescribed time, or any extension of it under s 34(3)(a). However, that says nothing about when the power to extend time must be exercised. If anything, it contains an assumption that any such extension of time will be in place before the time expires; otherwise the application would be taken to be dismissed, then a retrospective extension granted and the application would no longer be taken to be dismissed. In the meantime a fresh application may have been made in reliance on s 39. This would be a strange result.
JKC relies on s 41 of the Interpretation Act 1978 (NT) which provides: “Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.” Again, that says nothing about when the power becomes exercisable under the statutory regime in question.
JKC submits that if s 33(2) were interpreted to deem the application to be dismissed and to prevent time being extended under s 34(3)(a) after the expiry of the prescribed time under s 33(3) that would constrain the ability of the Supreme Court of the Northern Territory to exercise its discretion to make an order in the nature of mandamus as sought by JKC. This, it is submitted, would be unlawful;[13] it must be presumed that the legislature would not have intended such a result; and the section should be construed so as not to exceed legislative power.[14]
I reject that argument. Section 33(2) is not a provision whose purpose or effect is to limit the power of this Court to exercise a supervisory jurisdiction over any tribunal or inferior court including an adjudicator appointed under the Act. At most it has the incidental effect that a party in the position of JKC loses the right to have a dispute adjudicated as a result of an inability in the circumstances to comply with the time limits in the Act after the Court has exercised its supervisory jurisdiction to quash a purported determination.
JKC made a number of related submissions to the effect that s 34(3) should not be construed so as to preclude extending time for making a determination after the time for making a determination has expired as that would lead to situations such as the present, in which a party is prevented from having a payment dispute adjudicated through no fault of its own. That, it is submitted would defeat the primary object of the legislation.

I do not agree. It should be noted that the only circumstances in which the inflexible time limits in the Act could operate to shut a party to a construction contract out from having a payment dispute adjudicated through no fault of its own or the other party is one like the present in which a court has quashed an adjudicator’s determination. Where the adjudicator has not made a determination within time, the Act provides that a fresh application may be made.[15]
Similar arguments have been considered and rejected by the New South Wales Court of Appeal and the Western Australian Supreme Court in cases in which parties have attempted, by various expedients, to avoid the application of strict time limits after purported determinations have been quashed. Each of those courts placed emphasis on the objective in the legislation (which is expressed in similar terms in each jurisdiction) to provide a rapid process for the determination of payment disputes under construction contracts and, to that end, to impose strict time limits on the making and determination of applications.[16]
In Cardinal Project Services Pty Ltd v Hanave Pty Ltd[17] the New South Wales Supreme Court, by consent, declared that an adjudicator’s determination was void approximately seven months after the purported determination was made. The appellant then lodged a second adjudication application. Section 21(3) of the New South Wales Act[18] requires an adjudicator to determine an adjudication application within ten business days of his or her acceptance of the application (unless the parties agree to a longer period). Section 26 provides that if an adjudicator fails to determine the application within the time allowed by s 21(3), a claimant may make a new adjudication application within five business days.
The primary judge held that because the determination had been void at all times, the adjudicator had failed to make a valid determination. Therefore the five day period for lodging another application ran from the time by which the adjudicator had to make a valid determination under s 21(3) (ie ten days after acceptance of the application). That time had long since expired by the time the second application was made and the second application was therefore out of time and ineffective. This decision was upheld on appeal.
The unsuccessful appellant made essentially the same submission as that made in this case by JKC: that a claimant could be outside the time within which it was permitted to lodge a new adjudication application before the adjudicator’s determination was declared void, or quashed by the Court, and therefore before the claimant knew of its right to make a new application and that the Act should not be construed so as to produce such an inconvenient and unfair result.[19]
In rejecting this contention Macfarlan JA (with whom Tobias AJA agreed) said:
Before answering this question it is appropriate to refer to the objects of the Act, as identified in s 3. In essence they are to ensure that persons undertaking building and construction work are able to obtain progress payments (whether or not their contracts provide for them) and to establish a mechanism by which this may be achieved. It is plain from consideration of the Act as a whole that the legislature intended that the mechanism would facilitate prompt payment and would ensure that disputes as to contractors’ entitlements were resolved in an expeditious fashion. To this end the legislature imposed tight timetables for relevant steps to be taken.[20]
Tobias J added:
The problem in the present case is that it is apparent that the legislature simply never envisaged a situation such as the present where a determination is made by an adjudicator within the time limit mandated by s 21(3) but is later set aside or declared invalid. If that situation is to be remedied in a manner that departs from the text of the Act, then it is for the legislature and not the courts to achieve that end. I fully appreciate … that the factual situation with which the Court is faced in the present case was not of the appellant's making. Nor was it that of the respondent. There is a lacuna which, in my view, only the legislature can fill. It cannot be filled by a construction of the relevant sections of the Act which in my respectful opinion they cannot reasonably bear.[21]
Similar considerations apply to the Northern Territory legislation and in my view a similar approach should be adopted. Section 3 of the Act provides that the object of the Act is to promote security of payments under construction contracts (inter alia) by providing for the rapid resolution of payment disputes arising under construction contracts, and it is obvious from the scheme of the Act that the legislature did not envisage a situation in which a determination is made by an adjudicator within the time fixed by the Act but is later set aside or declared invalid.
In Alliance Contracting Pty Ltd v James[22] Tenix had applied for adjudication of a payment dispute with Alliance, claiming that Alliance owed money to Tenix. The adjudicator found that an amount of over $6 million was in fact owing by Tenix to Alliance but held that he had no power under the legislation to order the applicant (Tenix) to pay that sum to the respondent (Alliance). Alliance applied for a writ of mandamus and an order that Tenix pay Alliance the amount the adjudicator had found to be owing on the ground that the adjudicator had failed to exercise his jurisdiction. Beech J did not agree that the adjudicator had made the claimed jurisdictional error. He also held that even if jurisdictional error had been found, relief would be refused on discretionary grounds. It is that latter part of the judgment (which is strictly obiter) that is relevant for present purposes.

[40]Section 31 of the WA Act[23] sets out what the adjudicator must do. It prescribes a short timeframe, namely within 14 days of receipt of the respondent’s response, within which an adjudicator is required to make a determination. That timeframe can only be varied with the consent of the parties. (Section 31 is very similar in its structure to s 33 of the NT Act, including providing that if an application is not dismissed or determined within the prescribed time, or any extension of it, the application is to be taken to have been dismissed when the time has elapsed.)

After finding that the adjudicator was not in error, Beech J made the following remarks:
83If Alliance had established the error it alleges, the question then arises as to what relief should be given.
84The starting point is the general proposition that an administrative decision made under a jurisdictional error is liable to be quashed, via a writ of certiorari, on the ground of the jurisdictional error.
85Alliance seeks to avoid that approach in this case.[24] That is because of the operation of s 31(3) of the Act. That section provides that if an adjudicator does not make a determination within the prescribed time, ‘the application is taken to have been dismissed when the time has elapsed’. So if the determination is quashed, the adjudication application will be taken to have been dismissed on 20 December 2013, when the time limit in s 31(3) expired, thus denying a remedy to Alliance.
86It is to be noted that the Act does not qualify the operation of s 31(3) by reference to a situation where the adjudicator makes a jurisdictional error and the determination is quashed. Similar provisions in the payment security legislation in other States have been construed as operating in accordance with their terms notwithstanding the consequences where the adjudication is later quashed for jurisdictional error. I would adopt a like construction of s 31(3).[25]
The reference in [86] of Beech J’s judgment was to the decision of the NSW Court of Appeal in Cardinal Project Services Pty Ltd v Hanave Pty Ltd.
The decision in Alliance was followed in Field Deployment Solutions Pty Ltd v Jones.[26] In that case the adjudicator had dismissed an application for adjudication and the issue was whether the Court should make an order in the nature of certiorari quashing that decision. The Court declined to do so on the ground that it would be futile. Mitchell J cited the passages from Alliance set out above (which include the reference to Cardinal Project Services) and said:
9The first reason is that, if I were to make an order quashing the adjudicator’s decision, s 31(3) of the Act would then operate. That subsection provides:
If an application is not dismissed or determined under subsection (2) within the prescribed time, or any extension of it made under section 32(3)(a), the application is to be taken to have been dismissed when the time has elapsed.
...
12It seems to me that, if I were to make an order quashing the adjudicators’ decisions to dismiss the adjudication applications, s 31(3) of the Act would operate to substitute decisions to the same effect. That is, s 31(3) would then operate to deem the applications to have been dismissed.
13In those circumstances it would be futile to grant relief by way of certiorari, futility clearly being a discretionary ground for refusing relief of that kind.[27]
Each of these cases is slightly different. None of them is on all fours with the present case. However, it seems to me that common considerations arose in each of them. In each of these cases, the courts construed analogous provisions from legislation in other jurisdictions according to their plain meaning and applied the relevant time limits notwithstanding that there had been purported determinations which had been quashed by a Court after the expiration of the time limits under consideration. In doing so each court placed reliance on the object of the legislation to provide a rapid process for the determination of disputes under construction contracts and, to that end, to impose strict time limits on the making and determination of applications for adjudication. (Further, the Western Australian decisions assumed, not unnaturally, that once the time limited for making a decision had expired, the state of affairs deemed to have come into effect under the Western Australian equivalent of s 33(2) had permanent ongoing effect.)
In the present case, the argument for not giving effect to these strict time limits where a purported determination has been quashed by the Court is based on a contention that s 34(3) should be construed so as to permit an adjudicator to extend time for making a decision after the time fixed for the adjudicator to make a decision has expired despite the fact that s 33(2) provides that the application is taken to be dismissed when that time has expired. For the reasons set out above, I do not agree that s 34(3) should be construed so as to permit this and I do not think it appropriate to make any consequential orders other than the order for costs which has already been made.

------

[1] I express no view on whether leave ought to be given to the defendant to re-open its case at this late stage to file a cross-claim seeking mandamus in the alternative to its defence of the adjudicator’s determination should certiorari be granted (as it has been) since no such application has been made by JKC. Nor do I express a view on whether or not it would be open to the defendant (having regard to the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) to commence fresh proceedings seeking an order in the nature of mandamus compelling the Adjudicator to consider applying to the Registrar for consent to an extension of time to make a determination. (I presume a pre-condition to any such proceeding would in any event be a refusal by the Adjudicator to consider making such an application, or a refusal to make such an application on grounds that were unreasonable or involved a breach of natural justice.)

[2]This term is used in the same way as in the primary decision to refer to the application for adjudication made by JKC on 3 January 2017.

[3]Of course this may be done by simply directing the decision maker to decide “according to law” meaning the law as expounded in the decision granting certiorari.

[4] INPEX Operations Australia Pty Ltd & Anor v JKC Australia LNG Pty Ltd & Anor [2017] NTSC 45 [25]

[5] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223

[6] [2013] VSC 243

[7] An adjudicator is to determine an adjudication application as expeditiously as possible and, in any case within ten business days after the date on which the acceptance of the application by the adjudicator or such further time, not exceeding 15 business days after that date, to which the claimant agrees (which agreement must not be unreasonably withheld). [s 22(4) and (4A)]

[8] Section 28(3) provides that a fresh application may be made despite ss 18(3)(c)(d) and (e) which set out the times within which an application must be made. The new application must be made within five business days after the original application is withdrawn.

[9] Maxstra Constructions Pty Ltd v Gilbert & Ors [2013] VSC 243 [73]

[10] Construction Contracts (Security of Payments) Act 2004 (NT) s 33(2)

[11] Ibid s 43(2)

[12] Ibid s 39(1)

[13] Kirk v Industrial Court (NSW) (2010) 239 CLR 531; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569

[14]Interpretation Act 1978 (NT) s 59

[15] Construction Contracts (Security of Payments) Act 2004 (NT) s 39

[16] Cardinal Project Services Pty Ltd v Hanave Pty Ltd (2011) 81 NSWLR 716 [85]; Alliance Contracting Pty Ltd v James [2014] WASC 212 [49] and [69]

[17] (2011) 81 NSWLR 716 [10], [85] [103], [117]

[18]Building and Construction Industry Security of Payment Act 1999 (NSW)

[19] The alternative construction of s 26 contended for by the appellant in Cardinal Project Services (and which was rejected) was that, where a determination has been declared to be a nullity by the court, time should run from the date of the declaration.

[20] Cardinal Project Services Pty Ltd v Hanave Pty Ltd (2011) 81 NSWLR 716 [85]

[21] Ibid [117]

[22][2014] WASC 212

[23] Construction Contracts Act 2004 (WA)

[24] Alliance did not apply for certiorari. Rather it sought to quash part only of the determination (the part in which the adjudicator held that he did not have jurisdiction to order payment to Alliance of the amount he found to be owing to Alliance) and asked for mandamus to compel the adjudicator to make a determination under the equivalent of s 33(1)(b) of the amount payable to Alliance and the date on which it was to be paid.

[25] Alliance Contracting Pty Ltd v James [2014] WASC 212

[26][2015] WASC 136

[27] Ibid