Martinus Rail Pty Ltd v Qube RE Services (No.2) Pty Ltd

The New South Wales Court of Appeal, comprising Gleeson and Payne JJA and Griffiths AJA, considered an appeal and cross-appeal concerning judicial review of an adjudication decision made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute involved allegations of jurisdictional error affecting the adjudication process.

The court was required to determine whether the adjudicator had committed jurisdictional error by failing to consider a relevant matter, specifically whether the adjudicator's decision revealed a failure to consider a particular issue, and whether this failure constituted procedural unfairness or legal unreasonableness. The court also considered the scope of the obligation to consider matters under section 22(2) of the Act.

The Court of Appeal found that the adjudicator had indeed failed to consider a relevant matter, leading to jurisdictional error. The reasoning focused on the principle that a failure to consider a specific matter, even if not explicitly articulated in the reasons, can demonstrate a failure to undertake the required statutory task. This failure was found to vitiate the adjudication decision.

The appeal was allowed, the cross-appeal was dismissed, and the summons seeking leave to appeal was dismissed. Specific orders were made to set aside and vary previous court orders, and Qube was ordered to pay Martinus Rail's costs of the appeal, cross-appeal, and application for leave to appeal.