Oasis Newman Operations Pty Ltd v Hockley - [2023] WASC 79

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   OASIS NEWMAN OPERATIONS PTY LTD -v- HOCKLEY [2023] WASC 79
CORAM:   SOLOMON J
HEARD:   7 & 8 DECEMBER 2022, FURTHER MATERIAL FILED 9 DECEMBER 2022
DELIVERED          :   24 MARCH 2023
PUBLISHED           :   24 MARCH 2023
FILE NO/S:   CIV 2155 of 2021
BETWEEN:   OASIS NEWMAN OPERATIONS PTY LTD
Applicant
AND
JOHN HOCKLEY
Respondent
WOUTER VAN DER MERWE
Other Party

Catchwords:

Judicial review - Construction Contracts (Former Provisions) Act 2004 - Statutory construction - Adjudication process - Power of adjudicator - Whether service of adjudication application jurisdictional fact - Whether date of payment claim jurisdictional fact - Court's residual discretion where respondent to adjudication application avoids service - Turns on own facts

Legislation:

Builders' Registration Act 1939 (WA)
Building and Construction Industry (Security of Payment) Act 2021 (WA)
Construction Contracts Act 2004 (WA) s 3(a)-(d), s 4(2)(b), s 4(2)(d), s 6(1)(a), s 6(3), s 7, s 12, ss 13-22, s 25(b), s 26(1), s 26(2), s 26(c), s 31(1), s 31(2), s 32, s 36(d), s 41(2), Schedule 1
Construction Contracts Amendment Act 2016 (WA) s 4, s 6
Construction Contracts Regulations 2004 (WA) r 9, r 11
Construction Contracts (Former Provisions) Act 2004 (WA)
Corporations Act 2001 (Cth) s 109X, s 146A
Interpretation Act 1984 (WA) s 18, s 19, s 76

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	DW Thompson
Respondent	:	No appearance
Other Party	:	PJ Hannan

Solicitors:

Applicant	:	Halsey Legal Services
Respondent	:	No appearance
Other Party	:	Law Central Legal

Case(s) referred to in decision(s):

Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304
Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
John Holland Pty Ltd v Chidambara [2017] WASC 179
La Rosa v Nudrill [2013] WASCA 18
Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; 50 WAR 399
Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; 43 WAR 319
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151
Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150
Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281
Sandvik Mining and Construction Australia Pty Ltd v Fisher [No 2] [2020] WASC 123
Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80

SOLOMON J:

Application and applicable Act

This is an application seeking judicial review of an adjudication made by the respondent (adjudicator) under the Construction Contracts Act 2004 (CCA), which is now (and has been since 1 August 2022) the Construction Contracts (Former Provisions) Act 2004 (WA).[1]
[1] Construction Contracts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 79
Decision Date

CaseChat Overview and Summary

The case of Oasis Newman Operations Pty Ltd v Hockley involved a dispute between Oasis Newman Operations Pty Ltd and John Hockley, with the matter being heard in the Supreme Court of Western Australia. The central issue was whether proper service of documents had been achieved in accordance with the legal requirements and whether this failure constituted a valid reason for dismissing the adjudication application made by John Hockley. The primary legal issue revolved around the interpretation and application of service provisions under both the Interpretation Act and the Corporations Act, particularly concerning the validity of service by post.

The court had to determine whether the assertion made by Mark Jon Keene of Oasis Newman, who insisted on a specific method of service, was legally sound. The court found that service by post was permissible and valid under the law, contrary to Mr Keene's insistence. Additionally, the court examined the evidence regarding the email communications and the physical mailing of documents to determine if Oasis Newman had indeed received the necessary documents and if they had responded appropriately to the attempts made to serve them. The court concluded that Oasis Newman had received the documents and failed to respond, which further complicated their position.

In its reasoning, the court emphasised that Mr Keene's confident assertion about the service requirements was incorrect, as service by post was indeed valid. The court also noted that Oasis Newman had not provided any evidence to support their claim that they did not receive the documents. The court concluded that the failure to properly respond to the service attempts by Adjudicate Today constituted a significant procedural error on the part of Oasis Newman. As a result, the court dismissed Oasis Newman's application to set aside the adjudicator's appointment, finding that the procedural errors warranted such a decision.

The final orders included dismissing Oasis Newman's application to set aside the adjudicator's appointment and ordering Oasis Newman to pay John Hockley's costs of the proceeding.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Whatever else might be said about Mr Keene's email, his confident and strident assertion about what was required for service, was wrong. As counsel for Oasis Newman accepted,[29] and as is plainly the case under both the Interpretation Act and the Corporations Act, service can be effected by post.[29] Transcript, Oasis Newman Operations Pty Ltd v John Hockley, Supreme Court of Western Australia, 7 December 2022, 11. Mr van der Merwe emailed Mr Keene approximately 20 minutes later and advised him that the documents had been sent 'to both your premises so that you can't lie and say you never received it'.[30][30] Affidavit of Wouter van der Merwe (sworn 28 June 2022), 300. By email to Oasis Newman on 14 May 2021, Adjudicate Today 'formally advised' Oasis Newman that Adjudicate Today had received the application form and attachments. The email also stated:By this time, you should have received a copy of the application for adjudication form AND attachments directly from the applicant. If not, please promptly advise us in writing either via email or via facsimile, and please also provide a copy of your correspondence to the applicant.[31](emphasis supplied)[31] Affidavit of Mark Jon Keene (sworn 25 January 2022) MK-40. There is no evidence that Mr Keene or anyone else at Oasis Newman responded to that email. It is plain from the email exchange referred to above that by 14 May 2021, Mr Keene was aware that Mr van der Merwe was attempting to provide him with the documents and that they were fairly easily available to him. And, although Mr Keene claimed not to have received them, Mr Keene did not respond to Adjudicate Today to tell them that he claimed not to have received the documents. On 20 May 2021, Adjudicate Today sent a further email to Oasis Newman advising that John Hockley had been appointed as the adjudicator. The email provided information regarding the response and the process generally. The email again stated:You should have received a copy of the application for adjudication directly from the applicant. If not, please promptly advise us in writing either via email ...[32](emphasis supplied)[32] Affidavit of Mark Jon Keene (sworn 25 January 2022) MK-41. The email to Oasis Newman of 20 May 2021 also stressed the importance of the attachments provided, and referred to the onerous responsibilities of the parties in the process. The document set out fairly detailed information about the response and the process, and the function of the adjudicator. On 21 May 2021, Mr van der Merwe received the physical package back in the post marked 'return to sender' that he had sent to Oasis Newman's registered contact address. Mr van der Merwe followed up the postal delivery with Australia Post. On 21 May 2021, Mr van der Merwe received advice from Australia Post that the posted application had been delivered to the post box but returned 'back to the sender due to the item not being collected by the addressee'.[33] [33] Affidavit of Wouter van der Merwe (sworn 28 June 2022) WM-40.