MCC MINING (WESTERN AUSTRALIA) PTY LTD and THIESS PTY LTD

MCC Mining (Western Australia) Pty Ltd and Thiess Pty Ltd were involved in a dispute concerning the interpretation and application of the Construction Contracts Act 2004 (WA). The case focused on the role and powers of adjudicators appointed under the Act, specifically whether there is a right of review available when an adjudicator declines to dismiss an application for adjudication and whether questions of law should be referred to the Supreme Court. The court was tasked with determining the scope of review available to parties in such circumstances and whether the adjudicator's decisions could be reviewed for jurisdictional error.

The court examined the statutory framework provided by the Construction Contracts Act 2004 (WA), particularly sections 46 and 43, to ascertain the legislative intent regarding the review of adjudicators' decisions. It considered whether the privative clause in section 46(3) precluded review of adjudicators' decisions that did not dismiss an application. The court also explored the implications of previous decisions in other jurisdictions and cases under similar legislation to understand the extent to which adjudicators' decisions could be reviewed for jurisdictional error. The primary issue was whether an adjudicator's decision not to dismiss an application could be reviewed for jurisdictional error, and if so, under what circumstances.

In its reasoning, the court found that the provisions of section 46(3) of the Construction Contracts Act 2004 (WA) did not prevent the Supreme Court from declaring a determination of an adjudicator void for jurisdictional error. This conclusion was based on the understanding that, despite the privative clause, the court retained the power to review jurisdictional errors made by an adjudicator. The court relied on decisions from other jurisdictions and cases such as AJ Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd, Independent Fire Sprinklers (NT) Pty Ltd v Sunbuild Pty Ltd, Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd, and Downer Construction (Australia) Pty Ltd v Energy Australia to support its interpretation. The court held that while a reasonable but erroneous decision by an adjudicator does not invalidate the determination, jurisdictional errors could still be reviewed.

The court's outcome was that the adjudicator's decision not to dismiss the application could be reviewed for jurisdictional error. This means that if an adjudicator wrongly construed the Act to give themselves jurisdiction, the decision could be set aside by the Supreme Court. The court's decision emphasized the importance of ensuring that adjudicators adhere to the legislative framework and that their decisions are not based on incorrect interpretations of the law.