M+W Singapore Pte Ltd v Anstee-Brook

[2016] WASC 310

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   M+W SINGAPORE PTE LTD -v- ANSTEE-BROOK [2016] WASC 310

CORAM:   PRITCHARD J

HEARD:   ON THE PAPERS

DELIVERED          :   27 SEPTEMBER 2016

FILE NO/S:   CIV 2881 of 2015

BETWEEN:   M+W SINGAPORE PTE LTD

Applicant

AND

GRAHAM  ANSTEE-BROOK
Respondent

BROOKFIELD MULTIPLEX CONSTRUCTIONS PTY LTD
Other Party

Catchwords:

Practice and procedure - Consent orders - O 43 r 16 Rules of the Supreme Court 1971 (WA) - Consent orders in judicial review proceedings - Consent order for grant of prerogative relief - Requirement that Court be satisfied of grounds for and appropriateness of orders - Requirement that orders be within power - Where parties agree that decision-maker did not have jurisdiction to make the decision

Practice and procedure - Order for the issue of a writ of certiorari - Form of order - O 56 r 2(2) Rules of the Supreme Court 1971 (WA) - Court's power to make an order having the same effect as a prerogative writ - Whether necessary for order requiring decision-maker to deliver up decision to Court for purpose of being quashed - Whether sufficient to order that decision be quashed

Legislation:

Construction Contracts Act 2004 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Consent orders made

Category:    B

Representation:

Counsel:

Applicant:     No appearance

Respondent:     No appearance

Other Party  :     No appearance

Solicitors:

Applicant:     Tottle Partners

Respondent:     No appearance

Other Party  :     King & Wood Mallesons

Cases referred to in judgment:

Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274

Deans v Anangu Pitjantjatjara Yankunytjatjara (No 2) [2015] SASC 57

Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82

Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323

Laing O’Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237

Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2016] WASCA 130

1. PRITCHARD J:  In this application for judicial review, the Applicant seeks a writ of certiorari to quash a determination made by Mr Anstee‑Brook (the Respondent), an adjudicator under the Construction Contracts Act 2004 (WA) (the CC Act), on 20 October 2015 (the Determination). The Determination required that M+W Singapore Pte Ltd pay Brookfield Multiplex Constructions Pty Ltd $800,397.00 plus GST, interest and costs.[1]

   [1] Affidavit of Mary Jane Walker sworn 16 November 2015, Annexure MJW1.

2. The application for judicial review was heard on 24 May 2016, but counsel agreed that further submissions might be required once the Court of Appeal delivered its decision in Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation.[2] Following the delivery of that decision, the parties reached an agreement to resolve the application for judicial review by consent. They submitted a minute of proposed consent orders pursuant to O 43 r 16 of the Rules of the Supreme Court 1971 (WA) (the Minute). The orders sought by the parties in the Minute are:

   1.A writ of certiorari is issued quashing the adjudication determination of the Respondent dated 20 October 2015 on the ground that the Respondent wrongly determined that the Other Party's application for adjudication dated 16 September 2015 was made in accordance with s 26(1) of the Construction Contracts Act 2004 (WA) and the Respondent thereby fell into jurisdictional error.

   2.Within 7 days of the date of this order, the Other Party pay the Applicant's costs of the action … .

   3.There be no order as to the costs of the action as between the Applicant and the Respondent or between the Other Party and the Respondent.

3. For the reasons explained below at [15] ‑ [17], it is appropriate to indicate why I am persuaded that the Determination should be quashed, and the basis for granting that relief.

1. The factual background

   [2] Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2016] WASCA 130.

1. The following facts were disclosed in the affidavits filed by the parties. 

2. In 2012, Brookfield  entered into a 'Letter of Intent Agreement' with M+W for mechanical services at the Midland Health Campus in Perth.  In January 2013, Brookfield and M+W entered into a subcontract by which M+W would design, supply, install, test and commission mechanical services (the subcontract).

3. On 22 May 2015, 22 June 2015 and 22 July 2015, M+W submitted payment claims to Brookfield (numbered Payment Schedules 27, 28 and 29, respectively).  The total amount said to be owing in respect of those payment claims was just under $4.3 million.

4. In response, Brookfield issued Payment Schedules numbered 27, 28 and 29 to M+W on 4 June 2015, 3 July 2015 and 4 August 2015, respectively.  In each of those Payment Schedules, Brookfield disputed parts of each payment claim made by M+W, and determined that in fact an amount was due and payable by M+W to Brookfield, in the form of liquidated damages, or other amounts arising from delay and disruption, or by way of back charges.

5. On 7 June 2015, M+W sent Brookfield a letter (dated 5 June 2015) in which it disputed that it was liable to pay the amounts claimed in Payment Schedule 27.

6. On 17 July 2015, M+W sent Brookfield a letter in which it disputed the amounts claimed in Payment Schedule 28.

7. Prior to 19 August 2015, M+W wrote to Brookfield disputing many of the claims made by Brookfield. On 16 September 2015, Brookfield made an application for the adjudication of a payment dispute which it claimed had arisen by virtue of M+W's failure to pay the amount due under Payment Schedules 27, 28 and 29 (which it was accepted constituted payment claims under the CC Act) by the time it said those amounts became due and payable, namely 26 August 2015 (the Adjudication Application).

1. The Determination

1. The parties raised numerous arguments in the course of the adjudication. For present purposes, it is necessary only to focus on one of those arguments, namely whether the Respondent was required to dismiss the Adjudication Application under s 31(2) of the CC Act, on the basis that there had not been compliance with the requirements of s 26 of the CC Act.

2. The way in which the Respondent dealt with this argument in his Determination was as follows:[3]

   [3] Affidavit of Mary Jane Walker sworn 16 November 2015, Annexure MJW1, 13.

   12.3In response to each of the progress claims submitted by M+W, [Brookfield] determined that an amount was due and payable by M+W to [Brookfield].

   Section 26 of the CC Act

   12.4If an application for adjudication is not made within 28 days of a payment dispute the adjudication application must pursuant to s 31(2)(a)(ii) of the [CC Act] be summarily dismissed.

   12.5There is no issue between the parties that [Brookfield] can make a payment claim given the definition in s 3 of the [CC Act].

   …

   In respect of each of M+W's progress claims the payment schedules issued by [Brookfield] determined that there were amounts payable by M+W to [Brookfield] and that these payment schedules comprised payment claims pursuant to the [CC Act].

   12.6M+W contend that pursuant to clause 42.1 of the Subcontract as a payment schedule was issued M+W were required to make payment within 5 days of the issue of a certificate.  The certificates were respectively issued on 4 June 2015 (Payment Schedule 27), 3 July 2015 (Payment Schedule 28) and 4 August 2015 (Payment Schedule 29) and as the Application was made on 16 September 2015, the Application was not made within the 28 days of any of the payment disputes arising.

   12.7On the contentions of M+W the last Payment Schedule having been issued on 4 August 2015, the Application should have been lodged no later than 8 September 2015.

   12.8Each of the three Payment Schedules issued by [Brookfield] require consideration to ascertain whether the Application has been made within 28 days after a payment dispute has arisen.

   Section 6 of the [CC Act] relevantly provides:

   ...

   12.9[Brookfield] contend that clause 42.1 of the Subcontract provides that payment in relation to a payment schedule issued by [Brookfield] which reflects a payment by M+W to [Brookfield] ... must be made within 5 days of the issue of the certificate.  That would mean that in respect of payment schedules 27, 28 and 29 payment was due respectively on 9 June 2015, 8 July 2015 and 9 August 2015. 

   Extension of time for payment

   12.10It is apparent that unless there was some agreement or other mechanism pursuant to which the due dates for payment of Payment Schedules 27, 28 and 29 were extended then the Application was not brought within 28 days of a payment dispute arising.

3. The Respondent then considered arguments raised as to whether there had been an agreement to suspend the time for payment, or an extension of time for payment, and concluded:

   12.17I am persuaded that the parties had properly agreed to extend the time for payment of Payment Schedules 27, 28 and 29 to 31 August 2015 alternatively [Brookfield] waived its entitlement in writing pursuant to clause 48(a) of the Subcontract to payment within 5 days to payment by 31 August 2015 and accordingly any application for adjudication by [Brookfield] was to have been filed no later than 28 September 2015 which it was.

   12.18I am satisfied that the Application has been made within the time limits prescribed by s 26 of the [CC Act].

1. Consent orders for prerogative relief

The initial basis for the orders sought in the Minute

1. When the parties first submitted the Minute they simply sought a writ of certiorari to quash the Determination, but without any indication of the agreed basis for the jurisdictional error which was said to ground the order for prerogative relief.  Although the application for judicial review had been the subject of an earlier hearing, several arguments had been advanced by M+W as to why the Determination was invalid, so the basis on which the parties had come to agree that the Determination was invalid was not immediately apparent.

Principles applicable to the making of consent orders in judicial review proceedings

1. I formed the view that to make orders in the terms sought in the Minute, in those circumstances, would not constitute a proper exercise of judicial power.  In that regard, the observations made by French J (as his Honour was then) in Kovalev v Minister for Immigration and Multicultural Affairs are pertinent:[4]

   An order disposing of proceedings by consent must be self‑explanatory as must any order.  It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record.

   There is a fundamental difficulty where a court makes an order remitting a matter to a decision‑maker or tribunal to be decided "according to law" and the court itself is not informed of the nature of the error conceded.  The court is then making an order without being apprised of its basis and proposed operation.  To do so in my opinion is a purported but not an actual exercise of judicial power ... In the present case the precise concession which led to the proposed consent order had not been communicated by the respondent to the applicant ... And even if there had been such an agreement the terms of the order proposed would not have disclosed to the public what the parties had agreed should be its content.  In the particular case where a tribunal decision is set aside, the Tribunal itself is not usually a party and has played no role in the negotiation of the agreement that it erred in law.  A fortiori in that case the order must be clear and complete and the Court must be satisfied that it is appropriate.

   …

   It is well‑established that in making a consent order or indeed in accepting undertakings the Court must have regard to the limits of its power.  The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make …  The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court.  In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function …  It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision‑maker or a tribunal.  (citation omitted)

   [4] Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 [8] ‑ [9], [11] (French J).

2. Furthermore, the grant of a prerogative writ is a discretionary remedy.  The Court needs to understand the basis on which the parties have agreed that a decision under review was invalid for jurisdictional error, or error of law on the face of the record, so that it can assess whether the grant of prerogative relief would constitute a proper exercise of its discretion.  In Australian Competition and Consumer Commission v Energy Australia Pty Ltd[5] Gordon J (as her Honour was then) discussed the considerations relevant to when a Court should make declarations (in that case, that parties had engaged in conduct that was misleading and deceptive in contravention of s 18 of the Australian Consumer Law and had made false and misleading representations in contravention of s 29(1)(m) of the Competition and Consumer Act 2010 (Cth)), when those orders were sought with the consent of the parties. Although her Honour's observations pertain to declaratory relief, the same principles apply to the grant of prerogative relief. Her Honour observed:[6]

   The Court does not lack jurisdiction or power to grant declaratory relief merely because the relief is sought by the consent of the parties.  When a declaration is sought with the consent of the parties, the Court's discretion is not supplanted, but nor will the Court refuse to give effect to the terms of settlement where the orders sought are within the Court's jurisdiction and are otherwise unobjectionable.

   …

   Declarations are not made as a matter of course.  Where it is appropriate for a declaration to be made, attention must be given to the form of the declaration, so that it is at least informative as to the basis on which the Court declares that a contravention has occurred.  The declarations should contain appropriate and adequate particulars of how and why the impugned conduct is a contravention of the Act.  (citations omitted)

   [5] Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274.

   [6] Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274 [80], [83] (Gordon J).

3. In Deans v Anangu Pitjantjatjara Yankunytjatjara (No. 2) Nicholson J applied the principles discussed by her Honour in relation to an application for declaratory relief and relief in the nature of certiorari.  His Honour observed:[7]

   I am satisfied that, in the circumstances of this case, the Court has jurisdiction and power to grant the declaratory relief sought and to make the orders as sought.  However, it is still necessary for the Court to be satisfied that there is a proper legal basis for the making of the declarations and orders or, as Gordon J put it [in the quote above at [17]], that the orders "are otherwise unobjectionable".  Where the declarations and orders sought are directed to the validity of certain decisions made by the defendant … it will be necessary to identify the error of law made by the decision maker which founds the orders the Court is asked to make.

Clarification of the basis for the orders sought in the Minute

[7] Deans v Anangu Pitjantjatjara Yankunytjatjara (No 2) [2015] SASC 57 [11] (Nicholson J).

1. Upon the receipt of the Minute, I had my associate make enquiries of the solicitors for the parties as to the basis on which the orders in the Minute were sought.  The solicitors for M+W responded by letter dated 7 September 2016 and advised the Court, on behalf of the parties, that:

   [I]n light of the recent decision of the Court of Appeal in [Laing O'Rourke] [Brookfield] now concedes, and [Brookfield] and M+W therefore now agree, that:

   1.The adjudicator wrongly determined that the Adjudication Application was made in accordance with s 26(1) of the [CC Act], that is within 28 days of a payment dispute arising in respect of each of the relevant payment claims ([Brookfield's] payment schedules nos. 27, 28 and 29); and

   2.The adjudicator thereby fell into jurisdictional error, rendering the adjudicator's determination invalid.

2. The solicitors advised that the reasons for that view were set out in various paragraphs of the submissions filed earlier in these proceedings on M+W's behalf (the judicial review submissions).  Those particular judicial review submissions were to the following effect.

3. M+W submitted that the Respondent had failed to consider whether any of Brookfield's Payment Schedules had been rejected or wholly or partly disputed at an earlier time, thereby triggering a payment dispute for the purposes of the CC Act.

4. M+W submitted that it had disputed part of Payment Schedule 27 by a letter dated 5 June 2015 (which was before the Respondent in the adjudication), and that in Brookfield's submissions in the course of the adjudication it had characterised that letter as disputing Payment Schedule 27.

5. M+W also submitted that it was apparent from the terms of its letter of 17 July 2015 and an attachment to that letter (which were also before the Respondent in the adjudication) that M+W disputed, either wholly or in part, the vast majority of Brookfield's claims in Payment Schedule 28.

6. M+W submitted that irrespective of whether M+W's letters of 5 June 2015 and 17 July 2015 could be characterised as a notice of dispute which complied with the requirements of the implied term in cl 7 of div 5 of sch 1 to the CC Act, those letters were able to trigger a payment dispute in respect of Payment Schedules 27 and 28.

7. Consequently, M+W submitted that a payment dispute in respect of Payment Schedule 27 arose on 7 June 2015, when the letter of 5 June 2015 was sent, and in respect of Payment Schedule 28, that a payment dispute arose on 17 July 2015, when M+W's letter of the same date was sent. M+W submitted that as the Adjudication Application was not made within 28 days of the date upon which the payment dispute arose in each case, the requirements of s 26 of the CC Act had not been complied with and the adjudicator did not have jurisdiction in respect of Payment Schedules 27 and 28.

8. In respect of Payment Schedule 29, the parties' position appeared to be that the Adjudication Application was not commenced within 28 days of the date upon which the payment dispute arose in respect of Payment Schedule 29.  In the judicial review submissions, M+W submitted that it should have been evident to the Respondent from the contents of documents and correspondence between the parties, which were before him in the adjudication[8] and which were created after 4 August 2015, that a payment dispute had arisen in relation to the claims made by Brookfield in Payment Schedule 29 by no later than 18 August 2015. That being the case, M+W submitted that the 28 day period for lodging the Adjudication Application expired on 15 September 2015 and, as the Application was not lodged by Brookfield until 16 September 2015, the requirements of s 26 of the CC Act had not been complied with and the Respondent had no jurisdiction in respect of the payment dispute pertaining to Payment Schedule 29.

   [8] M+W's Substituted Outline of Submissions dated 16 March 2016 [48].

9. By letter dated 22 September 2016, the solicitors for M+W clarified that both Brookfield and M+W agreed that:

   [E]ven if the payment dispute arose in respect of Payment Schedule 29 within 28 days prior to 16 September 2015 when the adjudication application was filed, because there was a jurisdictional error in respect of the determination in respect of Payment Schedules 27 and 28, that was not severable and the whole determination falls as a result.

1. Why it is appropriate that the Court grant relief to quash the Determination

The grounds of review

1. M+W relied on a number of grounds of review in its application for judicial review, including:

   1.The Respondent erred in finding that the Application for Adjudication had been prepared and served in accordance with s 26 of the [CC Act] and thereby assumed a jurisdiction he did not have.

   2.The Respondent was required under s 31(2)(ii) of the [CC Act], but failed, to dismiss the Adjudication without making a determination on the merits, and thereby assumed a jurisdiction he did not have.

2. The jurisdictional error which the parties now agree was made by the Respondent therefore falls within the existing grounds of review.

The respondent's functions under s 31(2)(a)(ii) of the CC Act

1. The functions of an adjudicator are set out in s 31(2) of the CC Act. One of those functions is that an adjudicator must dismiss an application for the adjudication of a payment dispute under the CC Act in certain circumstances.

2. One of the circumstances in which an adjudicator must dismiss an application for adjudication is if the application has not been prepared and served in accordance with s 26 of the CC Act.[9]  Subsection 26(1) relevantly provides that 'to apply to have a payment dispute adjudicated, a party to the contract, within 28 days after the dispute arises' must prepare a written application for adjudication, serve it on each other party to the contract, serve it on the adjudicator, or a prescribed appointor, and provide any deposit or security for the costs of the adjudication. 

   [9] Construction Contracts Act 2004 (WA) s 31(2)(a)(ii).

3. The terms of s 26 make clear that an application for adjudication is an application for the adjudication of a 'payment dispute'. The term 'payment dispute' is defined in s 6. Relevantly for present purposes, a payment dispute arises if:

   [B]y the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed …

The proper construction of s 6 of the CC Act

1. The proper construction of s 6 of the CC Act (and thus one aspect of the operation of s 26 of the CC Act) was confirmed by the Court of Appeal in Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation.[10]  Laing O'Rourke involved the judicial review of an adjudication determination made under the CC Act and an application to enforce a determination by an adjudicator as a judgment of the Court. One of the issues raised in those proceedings was whether the adjudicator had acted without jurisdiction on the basis that he should have dismissed the application for adjudication under s 31(2) of the CC Act because there was no payment dispute as defined in s 6. The argument that there was no payment dispute turned on the construction of s 6 and, specifically, the question whether s 6(a) of the CC Act had the effect that no payment dispute could arise prior to the time at which the amount claimed in a payment claim was due to be paid under to the contract in question.

   [10] Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2016] WASCA 130.

2. At first instance, Mitchell J concluded that s 6(a) should not be construed in that way and that a payment dispute could arise simply if a payment claim had been rejected or disputed wholly or in part. Accordingly, he rejected this basis for the contention that the adjudicator's determination was outside his jurisdiction.[11]

   [11] Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237 [131], [133] (Mitchell J).

3. On appeal, the respondent filed a notice of contention in which it asserted that that aspect of the decision at first instance should be upheld on the ground that there was no payment dispute within the meaning of s 6 of the CC Act at the time the application for adjudication was made. The Court of Appeal upheld this aspect of Mitchell J's reasoning (although it allowed the appeal against his Honour's decision on other grounds). Martin CJ (with whose reasoning Newnes JA agreed) summarised the issue of construction raised by the notice of contention as being:[12]

   [E]ssentially whether the reference to the time when the amount claimed in a payment claim is due to be paid qualifies only the circumstances that the amount has not been paid in full, or whether it also qualifies the circumstances in which the claim has been rejected or wholly or partly disputed.

   [12] Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2016] WASCA 130 [76] (Martin CJ).

4. Martin CJ held that Mitchell J was correct to conclude that the reference to the time when the amount claimed was due to be paid under the contract applied only to the criterion that the amount had not been paid in full, and did not qualify the criterion that the claim had been rejected, or wholly or partly disputed.[13]

   [13] Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2016] WASCA 130 [78], [89] (Martin CJ).

5. For completeness, I note that in reaching this conclusion, Martin CJ observed that neither party to the appeal contested the conclusion reached by Mitchell J that the existence of a payment dispute at the time an application for adjudication was made was a jurisdictional fact (that is, a fact upon which the jurisdiction of an adjudicator depends) and the notice of contention was therefore to be approached on the assumption that Mitchell J was correct to arrive at that conclusion.[14]

   [14] Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2016] WASCA 130 [73] (Martin CJ).

6. McLure P reached the same conclusion as the Chief Justice in relation to the construction of s 6, albeit by a slightly different route. Her Honour concluded:[15]

   As a matter of fact, the date on which the payment dispute arises will vary according to the nature of the response that enlivens the existence of the dispute.  A failure to pay the amount in full is an omission.  A pure omission will signal a dispute if the time for payment has passed (that is, the amount is presently due).  Otherwise, the payment dispute arises on the date of the relevant responsive "act", being the date on which the payment claim was rejected or was wholly or partly disputed.

   [15] Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2016] WASCA 130 [205] (McLure P).

7. In view of Laing O'Rourke, it is now clear that on the proper construction of s 6 of the Act, a payment dispute will arise:

   •if, by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full; or

   •on the date on which the party liable to pay has taken some action to reject the payment claim, or to dispute the whole or part of it.

Why the Respondent had no jurisdiction to deal with Brookfield's application for the adjudication of a payment dispute

1. I am satisfied that the Respondent made a jurisdictional error in concluding that he was not required to dismiss the Adjudication Application on the ground that it had not been brought in compliance with s 26 of the CC Act. In M+W's letters of 5 June 2015 and 17 July 2015 (and the table attached to M+W's letter of 17 July 2015) (which were relied upon in the judicial review submissions) it was apparent that M+W disputed the claims made in Brookfield's Payment Schedules 27 and 28. As a payment dispute thus arose on 7 June 2015 (when the letter of 5 June 2015 was sent) and on 17 July 2015, the Adjudication Application was clearly not made within 28 days of the payment dispute arising in each case.

2. The existence of a payment dispute in respect of Payment Schedule 29 by 18 August 2015 is rather less clear on the face of the documents to which M+W referred in the judicial review submissions.  The judicial review submissions made reference to M+W's submissions to the Respondent in the adjudication.  In those submissions, M+W submitted that a dispute arose in respect of Payment Schedule 29 'on or about 11 August 2015, being the first meeting held after the payment schedule was issued'.[16]  However, later in those submissions, M+W submitted that a meeting was held on 4 August 2015, at which time it was alleged that Brookfield did not provide any documentation to supports its claims, and that as that situation persisted, M+W cancelled the next scheduled meeting of the parties on 11 August 2015.

   [16] M+W's Submissions to Adjudicator dated 30 September 2015, Annexure MW3 to the Affidavit of Matthew Barrey William, sworn 24 November 2015.

3. Another of the documents referred to in the judicial review submissions was a statutory declaration made on 30 September 2015 by Mr Williams, the Managing Director of M+W,[17] for the purposes of the adjudication before the Respondent.  Mr Williams declared that at the meeting on 4 August 2015, representatives of Brookfield were annoyed that the meeting did not address some of Brookfield's claims.  Mr Williams stated that it was M+W's view that Brookfield 'were trying to unduly force M+W to agree and accept [Brookfield's] claims.'[18] However, that hardly conclusively indicates that M+W had disputed Payment Schedule 29 at that stage.  It may simply be that it had not yet indicated a position one way or the other.

   [17] Affidavit of Lee Simon Panotidis sworn 16 March 2016, Annexure LP2.

   [18] Statutory Declaration of Matthew Barrey Williams made on 30 September 2015 in Affidavit of Lee Simon Panotidis sworn 16 March 2016, Annexure LP2 [4(l)], .

4. Finally, in the judicial review submissions, M+W referred to a letter dated 7 August 2015 from Mr Palandri, the Regional Managing Director of Brookfield, to M+W.[19]  In that letter, Mr Palandri observed that 'it is becoming evident that M+W representatives continue to attend meetings unprepared and without the necessary authority to reach agreement', and that although Brookfield had 'approached these negotiations with M+W in the spirit of finding resolution through robust review and discussion, it is becoming apparent that M+W may be unwilling to negotiate an outcome and act reasonably'.[20]  Again, that document hardly conclusively indicates that there was a payment dispute in relation to Payment Schedule 29 at that stage.

   [19] Affidavit of Mary Jane Walker sworn 23 February 2016, Annexure MJW20, referred to at [48] of the judicial review submissions.

   [20] Affidavit of Mary Jane Walker sworn 23 February 2016, Annexure MJW20.

5. However, as I have already noted, the parties' position, in the alternative, is that even if a payment dispute arose in respect of Payment Schedule 29 within 28 days prior to 16 September 2015 when the Adjudication Application was filed, nevertheless that part of the Determination which dealt with Payment Schedule 29 could not be severed from the balance of the Determination, so that the whole Determination has to be set aside.  In a case where partial invalidity is established in judicial review proceedings, it is open to the court to quash only the invalid portion of the decision or order, provided that that portion is severable.  The authorities establishing this principle were discussed in Director of Public Prosecutions (Cth) v Ede.[21]  To determine whether the invalid portion of a decision is severable from the remainder, the question is whether:

   [T]he impugned decision as a whole is [dependent] or conditioned upon the impugned element, or is one of several elements which are interrelated in that the flaw which affects the one, necessarily also affects the other or others … [If that is the case,] then the impugned element cannot be severed.  Where however, they can stand apart and the flaw which affects one is confined to it, severance should be preferred.[22]

   [21] Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82.

   [22] Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282; (2014) 289 FLR 82 [40] ff (Gleeson JA, Basten JA & Tobias AJA agreeing).

6. In my view, the parties are correct to conclude that even if the Respondent did not err in concluding that the adjudication application had been made within 28 days of the payment dispute arising with respect to Payment Schedule 29, nevertheless that part of the Determination which dealt with that particular payment dispute is not severable from the balance of the Determination.  There was one Adjudication Application before the Respondent, although it pertained to Payment Schedules 27, 28 and 29.  The Respondent assessed each of the claims made by Brookfield in those Payment Schedules and reached a conclusion as to the total amount which was the subject of the claims Brookfield had established.  From that total, the Respondent deducted various sums, including (for example) the amounts recovered by Brookfield pursuant to bank guarantees provided by M+W.  By that process, the Respondent concluded that M+W was liable to pay Brookfield $800,397.00.  For that reason, the jurisdictional error which tainted the Determination as it pertained to Payment Schedules 27 and 28 cannot be severed from the Determination as it pertained to Payment Schedule 29.  The whole of the Determination should properly be set aside.

7. There does not appear to be any other factor which would suggest that the Court should decline the orders sought in the Minute in the exercise of its discretion to grant prerogative relief.

1. The form of the order which should be made

1. Order 1 of the orders sought by the parties sought the issue of a writ of certiorari. The Court has power to make an order in the nature of a writ of certiorari, but without actually issuing the writ itself. In other words, the Court can simply order that the decision of the decision‑maker be quashed. (The issue of the writ requires that the decision‑maker deliver up the decision for the purpose of it being quashed.) The Court's power to make an order having the same effect as a remedy that could be provided by means of a prerogative writ is expressly reflected in O 56 r 2(2) of the Rules of the Supreme Court 1971 (WA).

2. The parties subsequently consented to order 1 in the Minute being made in the following amended terms:

   1.The determination made by the Respondent on 20 October 2015 (being determination No. 01‑15‑04; IAMA Ref 80879) be quashed on the ground that the Respondent wrongly determined that the Other Party's application for adjudication dated 16 September 2015 was made in accordance with s 26(1) of the Construction Contracts Act 2004 (WA), and the Respondent thereby fell into jurisdictional error.

3. As the parties did not contend that there was any need for an order to require the Respondent to formally deliver the Determination to the Court for the purpose of its being quashed (as the writ of certiorari would require), it is appropriate to make an order in the terms of order 1 now sought by the parties.