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

1. 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 Amendment Act 2016 (WA).

2. This case raises issues regarding the proper construction and operation of the CCA. I should note at the outset the amendments to the CCA that came into operation on 1 August 2022. One effect of those amendments is that under s 7 of the CCA, the CCA is not applicable to construction contracts which were entered into after 1 August 2022, so as to give effect to the application of the Building and Construction Industry (Security of Payment) Act 2021 (WA). As will be explained, there is no suggestion in this matter that any relevant contract was entered into after 1 August 2022 and thus the CCA continues to apply.

Overview

1. The applicant, Oasis Newman Operations Pty Ltd (Oasis Newman), operates an accommodation facility in the Pilbara region of Western Australia located at 44 Great Northern Highway, Newman.  It is a significant facility with over 500 rooms, located just south of the town centre of Newman.  Mr Mark Keene was at all relevant times, the sole director and shareholder of Oasis Newman.  Mr Andrew Teasdale was the business manager of Oasis Newman.  The accommodation facility is Oasis Newman's main business.[2]  It trades with a name that reflects the company name, 'Oasis at Newman'.

   [2] Affidavit of Mark Jon Keene (sworn 25 January 2022) [3].

2. The Other Party, Mr van der Merwe, undertook electrical maintenance and related jobs for Oasis Newman at its accommodation facility from late 2019 until about August 2020.  From November 2019, Mr van der Merwe issued invoices for those jobs as they were undertaken.  Initially the invoices were paid.  From late May 2020 to October 2020, Mr van der Merwe issued invoices that were not paid and were in due course disputed.  The dispute was expressed in email exchanges from about September 2020.  Mr van der Merwe issued a further invoice for interest in November 2020, and then in February 2021 Mr van der Merwe made further demand for payment of the disputed invoices through a debt collection firm.

3. On 12 May 2020, Mr van der Merwe applied to have the disputed invoices adjudicated under pt 3 of the CCA.  I shall refer to that application as the adjudication application.  On 25 June 2021, the adjudicator provided his determination and provided a corrected version on 30 June 2021.  I shall refer to the adjudicator's determination as the Determination.  In the Determination, the adjudicator determined that Oasis Newman was required to pay Mr van der Merwe $69,033.01 and, in addition, the adjudicator's fees of $11,362.50.  In this application for judicial review, Oasis Newman contends that the Determination was made without power and should be set aside.

Background

1. Until late 2019, Mr van der Merwe was employed by a company, Customer First Contracting Pty Ltd.  In that capacity in 2019 Mr van der Merwe provided services to Oasis Newman at its accommodation site for various types of construction‑related and maintenance work, principally electrical works.  In around October 2019, representatives of Oasis Newman and Mr van der Merwe discussed the provision of services by Mr van der Merwe in his own right.[3]  The work proposed, at least initially, related to the installation of generators.  It appears that arising out of the initial discussion, on 8 October 2019, Mr Keene sent Mr van der Merwe a set of specifications 'for consideration while inspecting on site this afternoon'.[4]  The specifications were contained in a document prepared by engineering consultants.  Mr van der Merwe's evidence was that in due course these specifications ceased to be applicable to the work he undertook at Oasis Newman's request.[5]  Mr Keene appeared to take a contrary view.[6]  In any event, it is tolerably clear that the scope of work the subject of the disputed invoices had moved well beyond the installation of generators and extended to other work including maintenance and repairs for electrical appliances and air‑conditioning.

   [3] Affidavit of Wouter van der Merwe (sworn 28 June 2022) [11]-[14].

   [4] Affidavit of Mark Jon Keene (sworn 25 January 2022) MK‑1.

   [5] Affidavit of Wouter van der Merwe (sworn 28 June 2022) [21].

   [6] Affidavit of Wouter van der Merwe (sworn 28 June 2022) [29], [30].

2. After the email of 8 October 2019, further communication by email then ensued between Oasis Newman and Mr van der Merwe.  Oasis Newman places some emphasis on the content of these emails, and it is therefore necessary to set them out in some detail.

3. On 30 October 2019, Mr Teasdale emailed Mr van der Merwe in the following terms:

   Hi Wouter,

   I wanted to touch base and ensure that we are on the same page moving forward.

   It is currently agreed that we shall contract you to complete the works as per the engineering tender submitted to you by Best Consultants.

   The contract will be on an hourly basis rather than on a quote basis.

   The contract will be deemed complete once the electrical inspector has signed off on the installation.

   You will provide us with a list of equipment that is required to be purchased that you shall order and Oasis Newman Operations will pay for.

   You have indicated that the project will take approximately 16 days to complete.  Although this number of days may vary slightly, there is an expectation that is should be achieved within 3 days either side of this number.

   You shall provide us with a schedule of works to be achieved on a daily basis, this schedule of works will be updated at the end of each day.

   Any variations to the schedule or works are to be communicated to Oasis Newman for approval prior to any further works proceeding.

   We have agreed on an hourly rate of $90 per hour.

   Wouter, if this sits well with you, I shall organise for supplier contract to be drawn up.

   Any questions, please let me know.[7]

   (emphasis added)

   [7] Affidavit of Andrew Teasdale (sworn 31 January 2022) AT-1.

4. Mr van der Merwe responded on 3 November 2019 in the following terms:

   Projected schedule for works

   Day 1-3
   Preparing concrete pads for new boards
   Pour concrete pads
   Removing old switches from generators
   Removing old main board next to generators

   Preparing cables for hook up in new boards

   Day 4-6
   Dig in and install conduit into oasis main board for 240mm mains coming from generator
   Shorten cables and prepare for hook up (lug cables, Mark cables, test cables)

   Fill back the trench

   Day 7-12
   Install new switch boards on concrete pads
   Open alternators and install cable from alternator to new main switch
   Install cables from new switches to new main board
   Fit off new main board
   Test all cables
   Mark all cables and switches

   Make all parts of the tray comply with standards

   Day 13
   Install and fit of lights and new circuits to board for generator area

   Test all circuits

   Day 14
   Test all generators
   Test Switches and rcbo's
   Test MEN

   Test all earth leakage and fault current

   Day 15
   Disconnect old generators
   Connect both sets of sub mains to bus
   Start up new gen sets

   Start removing old cabling

   Day 16-17
   Remove all remaining cables and tray next to site main board

   Correctly label all new switches and make sure all Boards comply with Australian standards

   What is not included in this projected schedule is as fault finding and repairing if any problems arise due to change in the generators control systems or any other problems that arise in the existing cable that was installed or cables that have been pulled in.  Neither will I take responsibility for the submain cables that have been installed between the generators and site main board.  All tests will be done on the cables to make sure at the time of connection it meets Australian standards.[8]

   [8] Affidavit of Andrew Teasdale (sworn 31 January 2022) AT-2.

5. It appears that a short time later that day, Mr van der Merwe responded to the same email of Mr Teasdale as follows:

   Sorry for the slight delay I've been extremely busy and out of town for a few days on a station doing electrical and generator work.  I will start with the concrete pad work and work at the main switch board this week.

   I have a sign on book that I will have your management sign as I arrive on site and as I leave site everyday.  Concrete pads will be finished off this week and cables at site main switch board

   As for the solar lights as I have discussed with narrelle.
   What is needed is LED lights of your choice weatherproof (DC suitable, as power from panels and battery is DC)
   A stand or frame for the solar panels
   Some kind of protection for the batteries (would be ideally placed in the shade under the solar panels)

   A weatherproof switch board that could also be installed onto the frame of the solar panels, some rcd's for the light circuits.[9]

   [9] Affidavit of Andrew Teasdale (sworn 31 January 2022), 11.

6. Mr Teasdale responded to Mr van der Merwe on 4 November 2019 as follows:

   Hi Wouter, many thanks for that and the schedule.

   Can you please advise the following

   1.What is your start date

   2.Do you have the capability to continue working through on this until completion (we really need it all completed by end of November)

   3.Quote sent through for the board, we are happy to pay for this to get started as I believe you stated it would take 2 weeks to build.  If we can get this started today, we can then have it installed by 18/11, and will be well on track to be finished by end of November

   4.If you wish to come out and have the concrete pads marked out, (as well as send us drawings with dimensions etc) we can have our guys on site prepare and possible even have laid for you.[10]

   [10] Affidavit of Andrew Teasdale (sworn 31 January 2022), 10-11.

7. Mr van der Merwe does not appear to have responded until the morning of 10 November 2019 and then advised:

   Hi Andrew sorry this week has been a bit crazy as I've been on shuts on site Finishing around 7-8pm.
   They are bit strict on mobile phones.

   I'm starting work at oasis on 11/11/2019

   I'll start disconnecting the old main switches and taking it out and pre ping the cables.
   Also getting the main cables into the current site Main board.

   The concrete will be poured this week and we could backfill that trench once the cables are set in place.

   I'm not on site this next week at all so will be able to spend a fair amount of time at oasis this coming week.[11]

   [11] Affidavit of Andrew Teasdale (sworn 31 January 2022), 10.

8. Mr Teasdale responded the same morning as follows:

   Hi Wouter

   Thank you for the update.
   It is good that you will be able to get a fair way into the task this week.
   In regards to works after this week, we were of the understanding that this job was to be a priority and would have consistent effort applied until completion.
   Is this the case, or is this task being fitted in when other work is not on, I am a bit unsure so clarity would be good.
   The goal
   Is to have this completed by end of November with everything working and commissioned by the first week of December.

   Please advise that these time frames are still in order[12]

   [12] Affidavit of Andrew Teasdale (sworn 31 January 2022), 10.

9. Notwithstanding the statement in Mr Teasdale's email of 30 October 2019 that 'if this sits well with you, I shall organise for supplier contract to be drawn up', it appears that no supplier contract was prepared by the applicant, less still executed by the parties.  It is also tolerably clear as I have noted, that the work undertaken by Mr van der Merwe, including in particular the work the subject of the disputed invoices, extended well beyond the works proposed by the exchange of emails set out above.

10. By email on 5 December 2019, without reference to the email exchange of 30 October and November 2019, Mr van der Merwe emailed Mr Teasdale stating, 'Hi mate as agreed to the term in our meeting here are terms set out please sign and send back to me at your earliest convenience'.[13]  There was no evidence before the adjudicator or before this court of what occurred or what was said at that meeting.

    [13] Affidavit of Wouter van der Merwe (sworn 28 June 2022) WM-2.

11. That email attached a formal document dated 1 December 2019 setting out terms and conditions of an agreement between Oasis Newman and VDM Electrical Contractors Pty Ltd.[14]  As this document assumes some significance on this application, I shall refer to it as the Contract Document.  In doing so, I should observe that for reasons explained below, whether in truth the Contract Document (or indeed any other particular document or communication) ultimately comprised or was part of the contract between Oasis Newman and Mr van der Merwe remains a matter that I am unable to determine.  The services proposed by the Contract Document were not limited to, and indeed did not mention, the installation of generators.  They were described as 'electrical, air‑conditioning services, auto electrical services, mechanical services'.  The Contract Document was signed by Mr van der Merwe but not by Oasis Newman.  The Contract Document included a provision that if a signed copy was not returned, the terms of the Contract Document would nevertheless apply and take affect from 7 days of delivery or when work commenced, whichever was earlier.

    [14] Affidavit of Wouter van der Merwe (sworn 28 June 2022), 23-25.

12. It appears from that email exchange, from other documents provided with the adjudication application by Mr van der Merwe, and from further documents put into evidence on this application for judicial review, that by the time the Contract Document was sent, the work had already commenced.  This is not entirely clear on the evidence.  There is documentation in the evidence that Mr van der Merwe was on site by mid‑November and attending to matters.  There also appears to have been an invoice dated 22 November 2019 for $12,161 and, as noted below, other invoices prior to Mr van der Merwe having sent the Contract Document.  In his affidavit evidence, Mr van der Merwe deposes to having commenced work at the Oasis Newman site on 1 December 2019.[15]  That date too, although it corresponds with the date on the face of Contract Document, was some days prior to the date on which Mr van der Merwe provided Oasis Newman with the Contract Document under cover of the email of 5 December 2019 referred to above.

    [15] Affidavit of Wouter van der Merwe (sworn 28 June 2022) [19].

13. The documentation I have set out above appears to have been the extent of the potential contractual documents exchanged between the parties prior to or at a time proximate with Mr van der Merwe having commenced work for Oasis Newman.  It is clear that the work proceeded without a formal contractual document signed by both parties.

14. On 5 December 2019, Mr van der Merwe sent Oasis Newman invoice no 004 for $60,291.00 dated 5 December 2019.[16]  Mr van der Merwe's unchallenged evidence was that the invoice was paid on 9 December 2019.

    [16] Affidavit of Wouter van der Merwe (sworn 28 June 2022) WM-3.

15. Further invoices followed invoice no 004, from late 2019 until May 2020.  It appears these invoices were paid, albeit not within the time frame that Mr van der Merwe believed they ought to have been.  In any event, these invoices were not the subject of any application for adjudication.

16. Between 29 May 2020 and 23 September 2020, Mr van der Merwe sent Oasis Newman six invoices totalling $69,032.61.[17]  Some of the invoices made reference to the dates of the work the subject of the invoice.  Each of the invoices stipulated a due date which was 7 days from the date of the invoice.  That period was consistent with the terms of the Contract Document.  The table below sets out the invoices.

    [17] There appears to be some discrepancy as to the aggregate total of these invoices.  In a letter of demand to Oasis Newman, Mr van der Merwe claimed a total of $68,316.17 in relation to these invoices.  In his Determination, the adjudicator calculated the total of these invoices to be $69,033.01.  No point was raised in relation to this discrepancy, and nothing appears to turn on it.

Invoice #	Invoice date	Amount	Date due on face of invoice	Date of works
#48	29 May 2020	$10,421.40	7 June 2020	22 May 2020 to 28 May 2020
#49	2 June 2020	$1,170.00	9 June 2020	10 May 2020, 31 May 2020
#56	8 July 2020	$19,493.07	15 July 2020	Date/s not provided on invoice
#61	12 August 2020	$3,995.33	12 August 2020	Date/s not provided on invoice
#62	7 July 2020	$28,826.93	14 July 2020	Date/s not provided on invoice, although invoice states 'time sheets/sign in sheets will be emailed'
#64	23 September 2020	$5,125.88	30 September 2020	Date/s not provided on invoice, although there is reference in the invoice to 'fix the faulty genset the Friday and Saturday'

1. The invoices were not paid by the stated due date, or at all.  Over the course of September and October 2020, emails were exchanged between Mr van der Merwe and Mr Keene in which the invoices were strongly disputed, and various disagreements arose between the parties.  On 3 October 2020, Mr van der Merwe sent Oasis Newman a further invoice no 70 in the sum of $84,963.30 for what he characterised as 'penalties'.  On 9 November 2020, Mr van der Merwe sent Oasis Newman yet a further invoice no 89 in the sum of $16,743.65 for 'interest'.  Unsurprisingly, those invoices were also not paid and were disputed.

1. In February 2021, having received no payment for his disputed invoices, Mr van der Merwe engaged a debt recovery firm, Marshall Freeman.  By letter dated 26 February 2021, on behalf of Mr van der Merwe, Marshall Freeman made a fresh demand for the total of the disputed invoices, then amounting to a sum of $178,665.92.[18]  Communications ensued between Oasis Newman and Marshall Freeman.  Oasis Newman continued to dispute the invoices.  On 18 March 2021, Mr Teasdale for Oasis Newman emailed Marshall Freeman, stating among other things, that Oasis Newman 'dispute the amount in its entirety as a spurious claim …'.[19]

   [18] Affidavit of Wouter van der Merwe (sworn 28 June 2022) WM-30.

   [19] Affidavit of Wouter van der Merwe (sworn 28 June 2022), 116.  

2. Before turning to the adjudication application, I observe that the documents in evidence before the court reflect some confusion in relation to the name or entity under which Mr van der Merwe traded.  The invoices, emails and documents refer variously to 'VDM Electrical Contractors', 'VDM Contractors', 'VDM Contractors Pty Ltd', and 'VDM Electrical Contractors Pty Ltd'.  Ultimately, the adjudication application was made by Mr van der Merwe in his own right (trading with the business name VDM Contractors).  No issue was made of this either during the course of the adjudication application or on this application for judicial review and I am content therefore to proceed on the basis that the work was undertaken, and the invoices were issued, by Mr van der Merwe.

The adjudication application

1. Under pt 3 of the CCA, a party to a payment dispute may apply for an adjudication by serving the application on a prescribed appointor, who in turn, appoints the adjudicator.  Regulation 11 of the Construction Contracts Regulations 2004 (WA) provides a list of prescribed appointors. One of them is a company, Adjudicate Today Pty Ltd (Adjudicate Today).

2. On 12 May 2021, Mr van der Merwe made the adjudication application to Adjudicate Today.  As noted, the adjudication application was made in the name of Wouter van der Merwe trading as VDM Contractors.  The application was made on what appears to be a pro‑forma document or standard form provided by Adjudicate Today, together with attachments.  The form included a series of questions with answers or information to be filled in by the applicant.  The form prepared by Mr van der Merwe included the following matters:

   (a)In response to the question: Is a copy of the construction contract attached?  Mr Van der Merwe answered 'yes'.

   (b)The space in the form that provided for the date that the contract was entered into, was left blank.

   (c)Next to the heading 'Payment Claim Date' Mr van der Merwe inserted '25/04/2021'.

   (d)Next to the heading 'Payment Due Date' Mr van der Merwe inserted '07/05/2021'.

   (e)Next to the heading 'Payment Claim Amount' Mr van der Merwe inserted '$188,665.92'.

3. The adjudication application comprised the form and attachments.  I set out below an overview of the attachments to the adjudication application.  The order of the documents is not easy to follow.  It is not a tidy or self‑explanatory set of documents.  Some or perhaps most of the documents are included as attachments to emails so that the chronological order of the documents is difficult to follow.  There is no evident structure in the provision of the documents.  The attachments also included a number of undated documents from Mr van der Merwe that appear to be in the nature of an explanation or submission although they are not identified as such.  The attachments included the documents I refer to below.

4. First, the invoices set out at [21] and [22] above were provided as part of the adjudication application.  Some features of the invoices are noteworthy.  First, each of the invoices contained a section on the bottom headed 'TERMS & CONDITIONS OF INVOICE'.  The 'terms' included 'Payments (sic) terms of 7 Calendar days has been agreed'.  Secondly, although as noted above some of the invoices did not provide the dates on which the work was claimed to have been undertaken, the flow of the invoices and the descriptions of the work does suggest that each invoice was issued shortly after the work was done.  In addition, descriptions such as 'call out', and numerous references to 'repairs' and faults for essential items such as air-conditioners and kitchen appliances suggest that a significant amount of work was undertaken in response to requests for prompt maintenance or repairs, which were followed fairly shortly by invoices.

5. After attaching those invoices, the adjudication application attached the demand from Marshall Freeman dated 26 February 2021 that I have referred to above.

6. The adjudication application then attached a considerable amount of email correspondence between Mr van der Merwe, Oasis Newman and various other parties relating to the disputed invoices and the work the subject of those invoices.  Also included were electrical safety certificates issued by the Department of Mines, Industry Regulation and Safety - Building and Energy and a BHP Inspector's Orders.  The email communication also included further copies of the disputed invoices.  The documentation spans the period July to October 2020.  It is not clear whether each of, or any of, these documents were provided as attachments to other emails included, or were provided as independent documents.  The bundle also included an unsigned contractual document between 'VDM Electrical Contractors Pty Ltd' and a third party 'contractor', Paramount Power Pty Ltd and a signed agreement between VDM Contractors and 'Hot Spot Electrical'.  These documents appear to relate to work undertaken by sub‑contractors of Mr van der Merwe in respect of the work the subject of the disputed invoices.  Copies of numerous text messages regarding the disputed invoices were also included.  Some of the text messages took the form of photographs of the works.

7. In large measure, the emails provided with the adjudication application do not appear to be requests for the work to be done but rather emails reflecting disputes that arose after the work was undertaken.  I observe that none of the emails provided with the adjudication application were sent prior to, or at a time proximate to, the time that Mr van der Merwe began the work in late 2019.

8. The email correspondence indicates as noted above, that invoices were issued by Mr van der Merwe for various works from the time he commenced in late November 2019.  These invoices were paid.  From invoice no 48, disputes began to emerge.  On the email correspondence attached to the adjudication application, the dispute appears to have been simmering by September 2020 and then erupted by mid‑October 2020.  On 15 October 2020, Mr van der Merwe wrote a formal letter of demand in respect of invoices 48, 49, 56, 61, 62 and 64 totalling $68,316.17.[20]  The demand was in fairly lengthy and robust terms.  Mr Keene responded the next day on 16 October 2020.  He raised various complaints about work undertaken by Mr van der Merwe and stated that until they were resolved 'no payment will be made at all'.  For good measure, Mr Keene added 'If you want to make a demand, send me a summons, I will delay it forever, it will cost you a fortune …'.[21]  By that time, the dispute had descended to cross allegations in relation to a variety of matters, peppered with insults and obscenities.

   [20] Affidavit of Mark Jon Keene (sworn 25 January 2022), 127-130.

   [21] Affidavit of Mark Jon Keene (sworn 25 January 2022) MK-38.

9. The adjudication application then attached correspondence between Marshall Freeman and Oasis Newman, as well as between Marshall Freeman and its client Mr van der Merwe.  The correspondence reflects Oasis Newman's rejection of the claim.  By letter dated 20 May 2021,[22] Marshall Freeman wrote to Mr van der Merwe providing what appears to be a summary of the position:

   [22] While no issue was raised in respect of this document, it must either be incorrectly dated or was incorrectly included in the copy of the adjudication application, as the date it bears is after the lodgement of the adjudication application.

   Dear Wouter Van Der Merwe

   Debt Code:EA54465315106

   Debt Balance:    $178,665.92

   Debt Name:OASIS @ NEWMAN PTY LTD

   Further to the above mentioned matter, the debt was lodged with Marshall Freeman on the 10th February 2021.  Payment claim was made to debtor on 25 February 2021.  When we initially spoke with the debtor they claimed the whole of the debt was in dispute and said that the client owed them money.

   We continued to have numerous conversations with the debtor following this in an attempt to resolve this matter and suggested a possible offer of settlement might be considered in an effort to resolve this amicably.  The debtor refused, referring to a settlement amount of $15,000.00 which was offered prior to the account being lodged with Marshall Freeman, which the client had previously declined.

   Yours Faithfully

10. Significantly, the Contract Document was included with the adjudication application.  As is explained further on in these reasons, that is because it is apparent that Mr van der Merwe considered that the Contract Document was the construction contract that he indicated in the adjudication application form was attached (to the adjudication application).  However, the covering email of 5 December 2019 by which the Contract Document was sent to Oasis Newman, was not included.

11. As noted above, among the documents attached to the application was an undated account and overview of the background and the disputed invoices.  The document had no title or heading.  It appears to be Mr van der Merwe's explanation of the dispute or perhaps submission to the adjudicator.  It began (without corrections): 'When vdm started works with oasis an agreement was made that for 7-day payment terms oasis will receive labour at $90/hr, not 25% mark-up on materials, no call out fees and no penalty rates for Saturday and Sunday works'.[23]  No reference was made in that paragraph or in the document to the Contract Document.  However, the terms described in that sentence were clearly contained in the Contract Document.

    [23] Affidavit of Wouter van der Merwe (sworn 28 June 2022), 226.

12. It is important to observe that Mr van der Merwe did not attach to or enclose with the adjudication application, the emails I have set out at paragraphs [6] to [13] above; evidently because Mr van der Merwe did not consider they formed any part of the construction contract.  As will be explained, the omission of the emails set out in [6] to [10] forms part of the grounds for judicial review.

Service of the adjudication application and further communications with the adjudicator

1. The evidence established that the adjudication application was served on Adjudicate Today by 13 May 2021 at the latest.  The issue of service on Oasis Newman is significant and far from straightforward.

2. Section 26(1)(b) required Mr van der Merwe to 'serve' the application on Oasis Newman. By virtue of s 76 of the Interpretation Act 1984 (WA), that service was to be effected by delivering or leaving the document or posting it, addressed in each case to Oasis Newman, at its principal place of business or principal office in Western Australia. In addition, s 109X of the Corporations Act 2001 (Cth) provides that for the purposes of any law, a document may be served on a company by leaving the document at, or posting the document to, the company's registered office.

3. The various relevant addresses of Oasis Newman at the time of the adjudication application were as follows:

   (a)The accommodation facility in Newman was Oasis Newman's main business.  That business was located at 44 Great Northern Highway, Newman.  The facility had a site office.

   (b)The registered address and principal place of business of Oasis Newman as recorded in the publicly available ASIC extract, was 44 Denis Street, Subiaco.

   (c)The 'contact address' of Oasis Newman listed in the publicly available ASIC extract of the company's details (including for the purposes of s 146A of the Corporations Act 2001) was, at that time, PO Box 1255 Subiaco.

4. On 13 May 2021, Mr van der Merwe posted the application by pre‑paid express post package to the registered contact address of PO Box 1255 Subiaco marked to the attention of Mr Keene at Oasis at Newman.[24]  On the same day, Mr van der Merwe also personally hand delivered a copy of the adjudication application to the office of Oasis at Newman at 44 Great Northern Highway, Newman.  An employee, Jacqueline Dyer, whom Mr van der Merwe says he knew to be the site manager of Oasis at Newman and who was in attendance at the site office, signed for the receipt of the documents but added that she was 'not signing on behalf of the company'.[25]  Mr van der Merwe took a photograph of the adjudication application left at the site office and produced that photograph in evidence.[26]  At 1:38 that afternoon, Mr van der Merwe emailed Mr Keene and advised 'Today I served your Newman office with a complete document, Jacqueline has signed that it was left at your Newman office and also have express posted the same document to your PO Box at your Subiaco address'.[27]

   [24] Affidavit of Wouter van der Merwe (sworn 28 June 2022) [100].

   [25] Affidavit of Wouter van der Merwe (sworn 28 June 2022) [101].

   [26] Affidavit of Wouter van der Merwe (sworn 28 June 2022) WM-37.

   [27] Affidavit of Wouter van der Merwe (sworn 28 June 2022), 307.

5. Mr Keene certainly received that email because at 5:05 pm that same afternoon, Mr Keene emailed Mr van der Merwe in response stating:

   Wouter,

   Again you are incorrect.

   No documents have been signed for at our Operational site at Oasis.  Some documents were note to be left at the premises but were clearly not accepted as that is not the Registered office of the Company.

   If you wish to 'serve' documents, they need to be delivered by hand and accepted at the registered office.  You have not done so.

   To make statements that you have in your email is effectively telling lies, something you have been very good at.[28]

   [28] Affidavit of Wouter van der Merwe (sworn 28 June 2022), 300 ‑ 301.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. On 24 May 2021, Mr van der Merwe again posted the application, this time to Oasis Newman's registered address at 44 Denis Street, Subiaco.  Mr van der Merwe received advice from Australia Post that the package had been delivered to the registered office of Oasis Newman on 31 May 2021.[34]

    [34] Affidavit of Wouter van der Merwe (sworn 28 June 2022) WM-41.

14. The receipt of the email from Adjudicate Today of 20 May 2021 did not inspire Mr Keene to retrieve the documents that he knew had been left at the Oasis Newman site office.  Nor did it cause him to respond in writing, or promptly, as requested.  Rather, Mr Keene waited until 26 May 2021 at which point, he 'instructed' Mr Teasdale to call Adjudicate Today by telephone and to tell them that Oasis Newman had not received the application for adjudication.  Mr Teasdale then sent an email addressed to a Lorraine at Adjudicate Today referring to a phone call 'just now' and referring to the emails from Adjudicate Today of 14 and 20 May 2021.  Mr Teasdale stated: 'What we have not received is a copy of the application for adjudication directly from the applicant … and as such are unable to detail a response …'.[35]  No mention was made in the correspondence from Oasis Newman of Mr van der Merwe's attempts to provide it with the documents or Mr van der Merwe's email to Mr Keene regarding those attempts.

    [35] Affidavit of Mark Jon Keene (sworn 25 January 2022) MK-42.

15. By 'URGENT EMAIL' on 1 June 2021 Adjudicate Today advised Oasis Newman of the information it had obtained from Mr van der Merwe regarding his attempts to provide the documents to Oasis Newman, and advised that on the basis of the information received, the application had been validly served.  By that time, that is by 1 June 2021, the unchallenged evidence available before this court established that the adjudication application and attachments had been:

    (a)left at Oasis Newman's site office at its main business, and that this had been brought to the attention of Mr Keene in an email to which he had responded;

    (b)sent to the Post Box listed with ASIC as Oasis Newman's contact address and this too had been brought to the attention of Mr Keene by email; and

    (c)sent by post and delivered to Oasis Newman's registered office in Subiaco.

16. Oasis Newman responded to Adjudicate Today with an email from its Accounts Manager, Kerry Best, at 7:02 pm on Friday 4 June 2021 advising: 'We have not received any correspondence aside from your emails'.[36]  In his affidavit evidence, Mr Keene explained that he instructed Ms Best to send the email in those terms.  On the evidence before the court, it is not possible to reconcile Ms Best's advice to Adjudicate Today (on the instruction of Mr Keene) with the unchallenged evidence that the documents had been delivered to Oasis Newman's main business on 13 May 2021 and to its PO box (to Mr Keene's knowledge), and to its registered office on 31 May 2021.

    [36] Affidavit of Kerry Anne Best (sworn 31 January 2022) KB-1.

1. In his sworn affidavit of 25 January 2022, Mr Keene's evidence was that 'Oasis Newman has never received a full copy of the application for adjudication'.[37]  Mr van der Merwe's sworn affidavit of 28 June 2022 gave evidence of his endeavours to provide Oasis Newman with the adjudication application documents that I have set out above.  Mr Keene swore a responsive affidavit on 26 August 2022.  In that affidavit he gave evidence that the Post Office Box, which was the registered contact address for Oasis Newman, was shared with 'another group of companies, Optimus Group' and that Mr Keene did not know the identity of everyone who had access to the PO Box.[38]  Mr Keene did not otherwise challenge the evidence of Mr van der Merwe in relation to his endeavours to provide Oasis Newman with the documents.  I pause to observe that Mr Keene's sworn evidence about the PO Box appeared to be directed to an inference that someone else may have taken the package unbeknownst to Mr Keene because other people, whom he did not know, had access to the PO Box.  It is difficult to reconcile that evidence with the advice from Australia Post referred to in [48] above.  That advice was not that someone else had taken the package, but rather that it had not been collected by anyone.

   [37] Affidavit of Mark Jon Keene (sworn 25 January 2022) [74].

   [38] Affidavit of Mark Jon Keene (sworn 26 August 2022) [36].

2. On the first day of the hearing, 7 December 2022, I raised the issue of service of the adjudication application documents with the parties.  Counsel for Oasis Newman accepted that the documents had been served on Oasis Newman by having been posted to Oasis Newman's registered office.  As I have noted above, that was done on 24 May 2021, and delivery was effected on 31 May 2021.[39]  When I asked counsel for Oasis Newman about Mr van der Merwe's evidence that he had personally delivered the documents to the office of Oasis at Newman, counsel responded 'they do seem to have been left on the desk in an office'.[40]  It is not necessary to decide the issue, but quite apart from the concession that the documents were served by post on the registered office, it appears to me that service may well also have been effected by the personal delivery to the Oasis at Newman site office, which was the office of Oasis Newman's main business.  Ultimately, counsel for Oasis Newman said its position was that 'as a matter of fact, it never received the documents'.  He then went on to explain that Oasis Newman accepted that it had been served with the documents, 'but in fact the documents were never seen by anyone with any authority to do anything about them at all'.[41]

   [39] Affidavit of Wouter van der Merwe (sworn 28 June 2022), 310.

   [40] Ts, 7 December 2022, 10.

   [41] Ts, 7 December 2022, 11.

3. I note that in the adjudicator's concluding remarks in the Determination, he stated that '[Oasis Newman] has tried to evade service'.[42]

   [42] Determination [90].

4. Returning to Ms Best's email of 4 June 2021, on the instruction of Mr Keene, Ms Best also advised in the same email to Adjudicate Today, in very brief terms, that:

   (a)There never was a contract in place;

   (b)Oasis Newman is not a building company;

   (c)The applicant is not a licensed electrical contractor; and

   (d)There was no engagement for construction work.

5. Adjudicate Today on behalf of the appointed adjudicator responded substantively by email to the parties on 8 June 2021.  The adjudicator sought the parties' consent to a one-week extension of time for his determination until 21 June 2021.  The adjudicator also sought Mr van der Merwe's response to Oasis Newman's four points above.  The parties agreed to the extension of time for the adjudicator to hand down his determination.

6. On 8 June 2021, Mr van der Merwe provided his response to the four issues raised by Oasis Newman in its email of 4 June 2021 to the adjudicator.  In relation to the first issue, the existence of a contract, Mr van der Merwe wrote:

   There was a contract in place and many many correspondence that refer to the terms.  Weather (sic) this contract was verbal, there were several correspondence between myself and Mark and Andrew stating this and also these terms were sent on the letter of demands and also sent to them in various other communications that is (sic) in the application.[43]

   [43] Affidavit of Mark Jon Keene (sworn 25 January 2022), 162.

7. The email then went on to refer to an agreed rate of $90 per hour for Mr van der Merwe's work, which was a discounted rate from Mr van der Merwe's normal pricing.  Mr van der Merwe set out his 'normal rates' of $120 per hour, with 50% higher rates on Saturday and on Sunday, double.  

8. The response from Mr van der Merwe of 8 June attached post‑contractual correspondence referring to an hourly rate of $90 and payment within 7 days.[44]  The response did not make express reference to the email from Mr van der Merwe to Mr Teasdale of 5 December 2019 attaching the Contract Document.  However, there is no doubt that the Contract Document was included in the adjudication application (as noted above) and it stipulated a discounted hourly rate of $90 from $120, and that payment was required within 7 days.

   [44] Affidavit of Mark Jon Keene (sworn 25 January 2022), 169.

9. In his sworn evidence in this court, Mr Keene said he believed the decision to be handed down by the adjudicator at that point related only to the question of whether the adjudicator had jurisdiction.  This, Mr Keene said, was because of the nature of the issues raised in the email sent on behalf of the adjudicator on 8 June 2021 and, Mr Keene said, because Oasis Newman had not received the adjudication application, a matter which Oasis Newman had 'repeatedly' told Adjudicate Today.  Mr Keene's sworn evidence that Adjudicate Today was told this 'repeatedly'[45] appears to be a reference to Mr Teasdale's telephone call of 26 May 2021 and the emails of 26 May 2021 and 4 June 2021.  Whether that meets the description of 'repeatedly' is not clear.  What is clear is that Oasis Newman failed to disclose the communications with Mr van der Merwe regarding his efforts to provide Oasis Newman with the very documents that Oasis Newman told Adjudicate Today 'repeatedly' it had not received.

   [45] Affidavit of Mark Jon Keene (sworn 25 January 2022) [64], [67].

10. On the basis of his professed belief as to the very limited confines of the forthcoming determination, Mr Keene says he did not make any substantive submissions or provide supporting documents to the adjudicator.

11. As the evidence established, and as counsel for Oasis Newman quite properly accepted, the adjudication application documents had been served on Oasis Newman by 31 May 2021 at the very latest.  Well before that time, they had been sent to Oasis Newman's post box and left at the office of Oasis Newman's main business.  Those deliveries were drawn expressly to Mr Keene's attention in emails to which he responded.  Mr Keene's sworn evidence that Oasis Newman 'has never received a full copy of the application for adjudication' and his sworn evidence that Oasis Newman repeatedly told Adjudicate Today that it had not received the adjudication application documents, must be viewed in that light. 

The Determination

1. The Determination was provided to the parties on 25 June 2021, with a corrected version provided on 30 June 2021.  The corrections are not material to this judicial review application.

2. The Determination commenced by setting out 'relevant sections' of the CCA.  That included the definition of 'construction contract' and 'construction work'.  The adjudicator then referred to the date the response to the adjudication application was due and then to the emails of 4 June 2021 from Oasis Newman and 8 June 2021 from Mr van der Merwe that I have referred to above.

3. Having set out the obligation to dismiss an application for adjudication in the circumstances set out in s 31(2), the adjudicator then turned first to the question of whether there was a construction contract as follows:

   Is there a "Construction contract" as that term is defined in the CC Act?

   I have carefully read all the documentation provided to me.

   I now consider the Respondents (sic) email dated 4 June 2021 received by the Adjudicate Today, the "prescribed appointor" under the CC Act.

   I note that the Respondent states in its email, the only communication that it has made with this adjudication.  I have taken the contents of that email as the Respondent's "submissions".

   The Respondent's email states that: "there is no contract between the parties".

   My research of the documents provided to me by the Applicant support (sic) [Oasis]'s view that there is no contract between the parties.  The Applicant did electrical work at the Oasis Motel, an established motel that caters for up to 400 people per day .  There was extensive electrical work undertaken based on oral instructions given by the authorised personnel of the Respondent that was sometimes clarified in email communication between the parties and then performed.

   The email states that "there never was a contract in place". The CC Act in Sections 13-22 and in Schedule 1- Implied Provisions; applies to the situations where there never was a contract in place. The Act will imply a contract in this case where the parties adopted a practice of giving and receiving instructions for the work by communicated orally or by email and relied on invoices from the Applicant for each particular instruction to do certain electrical work.

   The email also stated that "the Respondent is not a building company."  The Respondent was a company that engaged the Applicant to do "construction work" under a "construction contract" as those terms are defined in the CC Act.  The email states that "VDM was never engaged to undertake any construction work".  VDM was engaged to do electrical work that fell under the CC Act.  Ignorance of the law is no excuse.

   The email states that "VDM was never engaged to undertake any construction work".  VDM was engaged to do electrical work that fell under the CC Act.  Ignorance of the law is no excuse.

4. The adjudicator then went on to deal with issues concerning Mr van der Merwe's accreditation to undertake electrical works and whether the work came within the definition of construction work.  No issue is now raised about the latter.  The former was the subject of some grounds of review that were ultimately not pursued.

5. The adjudicator then repeated the circumstances in which he was required to dismiss the application under s 31(2)(a).[46]  He then turned to each of those elements.

   [46] Determination [40].

6. The adjudicator stated in the briefest of terms that s 31(2)(a)(i) 'does not apply', meaning that he was not required to dismiss the application on the basis that the contract was not a construction contract. That must have been based on the adjudicator's conclusion that although there was 'no contract between the parties', the 'Act will imply a contract in this case' and the work undertaken came within the definition of construction work.[47]

   [47] Determination [39].

7. Having noted that s 31(2)(ia) was not relevant, the adjudicator then directed attention to s 31(2)(a)(ii). The adjudicator dealt with that subsection in two parts. First, the adjudicator concluded in brief and generalised terms that the application was prepared in accordance with s 26(1).[48] He then stated that 'further details about the service in accordance with s 26(1) and (2)(b) and (c) is set out below after the other subsections of this section have been considered'. The adjudicator went on to consider those other subsections.[49]  No issue arises in relation to those aspects of the Determination.

   [48] Determination [43].

   [49] Determination [44], [45], [46].

8. As he foreshadowed, the adjudicator returned to a consideration of s 31(2)(a)(ii), which required compliance by Mr van der Merwe with s 26(1) and s 26(2)(b) and (c).[50]  The adjudicator then dealt with the issue of service of the application by Mr van der Merwe on Oasis Newman.[51]  The adjudicator referred to some of the relevant circumstances that I have set out above and concluded that the application was served 'in accordance with s 26 and s 31 of the [CCA]'.[52]

   [50] Determination [47].

   [51] Determination [47] - [54].

   [52] Determination [54].

9. The adjudicator's remarks appear to conflate service of the adjudication application with service of the payment claim. Section 31(2)(a)(ii) refers to the preparation and service of the application in accordance with s 26(1) and s 26(2)(b). Those sections deal with the preparation and service of the application, not the payment claim.  Yet confusingly in the context of s 31(2)(a)(ii), the adjudicator's comments were directed to service of the payment claim.[53]

   [53] Determination [47].

10. The adjudicator concluded that both the payment claim and the adjudication application 'were served on [Oasis Newman] in accordance with section 26 and section 31.'[54] The adjudicator then stated:

    In this adjudication as there is no written contract between the parties the Implied Provisions in Schedule 1 to the CC Act apply. In particular, Schedule 1 Division 4 - Making claims for Payment, Clause 5 - making claims for payment, content, at (3)(b); and Division 7 Responding to a payment claim (3) where payment is due 28 days after service of the Payment Claim.

    The Payment Claim was served in accordance with the practice adopted by the parties, namely by email, on 25/04/2021 and if 28 clear days are added Payment was due on 24 May 2021.[55]

    [54] Determination [54].

    [55] Determination [55] - [56].

11. The adjudicator then briefly considered s 31(2)(a)(iv) and resolved that he was able to determine the matter.  He then turned 'to decide the payment dispute on its merits' and set out his consideration in that regard.[56]

    [56] Determination [61] - [73].

12. In his consideration of the substantive merits of the dispute, the adjudicator stated that he had looked closely at the work undertaken by Mr van der Merwe and had studied his invoices.  On that basis the adjudicator 'was willing to allow' invoices 48, 49, 56, 61, 62 and 64 which totalled $69,033.01.  Having 'assessed the value of the work done … based on the evidence of invoices', the adjudicator noted that there 'has been no objection by [Oasis Newman] to the invoices' and he noted that Oasis Newman did not file a response to the claim.  The adjudicator rejected invoices numbered 70 and 89 for penalties and interest and rejected a further debt of $19,448.12 as there were no details of the debt in the papers.  The adjudicator thus concluded that Oasis Newman was required to pay Mr van der Merwe $69,033.01.  The adjudicator then also awarded the payment of interest on that sum and costs fixed at $11,362.50.

13. The adjudicator's assessment of the merits of the claim appeared to be directed to the evidence provided by the invoices themselves and his finding that Oasis Newman had not objected to them.  It is fair to observe in my view, that the adjudicator's evaluation of the substantial merits of the dispute reflected in the correspondence was less then fulsome, but that is not a matter with which this application for judicial review is concerned.

Observations on the Determination

1. Before turning to the grounds of review it is important to identify and clarify with some precision what it is that the adjudicator did.  It is well established that this is to be understood from the Determination itself and is an exercise to be undertaken adopting a liberal approach and without an eye fine‑tuned to error.[57]

   [57] See for example Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304 [53], [56] (Pritchard J); John Holland Pty Ltd v Chidambara [2017] WASC 179[50] (Chaney J); Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281 [76] (Martin CJ).

2. As is explained later in these reasons, it is uncontroversial that under pt 3 of the CCA, an adjudicator's power is limited to circumstances where a payment dispute arises under a construction contract and an application for adjudication is served on the respondent within 90 business days of the dispute having arisen.  That requires identification of the construction contract, the payment dispute and the time when that dispute arose.  I shall deal with what the adjudicator did in respect of each of those matters.

Construction contract

1. As I have noted, the adjudicator concluded there was 'no contract' but that one was implied by the CCA.  The adjudicator made no mention of the Contract Document provided with the application dated 1 December 2019.

2. One might reasonably have expected the adjudicator to make at least some reference to the Contract Document.  It is difficult to conclude that it was simply overlooked in light of the adjudicator's statement that 'I have carefully read all the documentation provided to me'[58] (which was not voluminous). Moreover, the adjudicator expressly turned his mind to the question of whether there was a contract. The Contract Document was the only document before the adjudicator that, on its face, might have met that description. Further, under s 31(2)(a)(ii) the adjudicator was required to be satisfied that Mr van der Merwe had complied with s 26(2)(b) which required Mr van der Merwe to set out the details of, or attach to his application, 'the construction contract involved or relevant extracts of it'. The Contract Document appears to be the document that Mr van der Merwe understood to be the construction contract and therefore attached to his application. The undated summary or submission provided with the adjudication application refers to terms that precisely mirror the terms in the Contract Document, even though the submission makes no reference to the document itself. I can only surmise that the adjudicator considered that notwithstanding its provision by Mr van der Merwe as part of the adjudication application, it did not in fact constitute the contract between the parties. That may be because it was not signed by Oasis Newman, or that it post‑dated the commencement of work, or for both reasons, or for some other reason. The adjudicator did not explain his reasoning and no complaint is made suggesting that the adjudicator failed to comply with the obligation imposed upon him by s 36(d) to give reasons for the Determination.

   [58] Determination [15].

3. Be that as it may, the adjudicator stated that notwithstanding his conclusion that there was no contract between the parties, there was 'extensive electrical work undertaken based on oral instructions given by the authorised personnel of [Oasis Newman] that was sometimes clarified in email communication between the parties then performed' and that 'the parties adopted a practice of giving and receiving instructions for the work by communicating orally or by email and relied on invoices from [Mr van der Merwe] for each particular instruction to do certain electrical work'.[59]

   [59] Determination [20].

4. The adjudicator went on to state, in effect, that div 2 of pt 2 of the CCA applies to the situations described in [81]. The adjudicator then concluded that Oasis Newman did indeed engage Mr van der Merwe under a construction contract as that term is defined by the CCA.[60]  The adjudicator bolstered that conclusion (twice) with the maxim: 'Ignorance of the law is no excuse'.[61]

   [60] Determination [21].

   [61]  Determination [21], [22].

5. The adjudicator's remarks are not easily understood.  If Mr van der Merwe was engaged through oral or email instructions which were confirmed by invoices, that does not mean there was no contract.  It means that there was likely a contract constituted variously by oral conversations, emails, invoices and probably conduct. 

6. Similarly, although the adjudicator referred to reliance by the parties on invoices, the adjudicator did not adopt the 7-day payment requirement contained in the 'Terms and conditions' printed on the invoices.  That may be because the invoices were sent after the work was complete and could not therefore constitute the agreed terms (although the adjudicator might have concluded that the ongoing issuing of invoices which contained terms might have had contractual effect: see the discussion of the authorities by the Court of Appeal in La Rosa v Nudrill [2013] WASCA 18). Whatever the reasons may be, it appears the adjudicator's reference to the parties' reliance on invoices was directed to the content or nature of the work to be undertaken rather than the terms governing a payment claim.

1. In addition, it is not clear what the adjudicator intended by 'the instructions having been sometimes clarified or given by email'.  The emails provided do not generally bear that character.  As I have noted they are largely about disputes that arose after the work had been performed.  The documents included at least one formal written 'Estimate' which preceded the relevant works, and which was presumably provided by email.  It may be that the adjudicator intended to refer to that email.

2. In light of the Contract Document and the invoices, the adjudicator's conclusion that there was 'no contract' (but that a contract was implied by the CCA) is curious.  However, in the absence of comprehensive reasons it is not possible to understand  the basis for the adjudicator's conclusion.  It may be that there was a sound basis for the adjudicator's view that neither the document of 1 December 2019, nor the terms and conditions written on successive invoices, were the operative contractual documents.  It is not possible on the material before this court to come to any conclusion about that.

3. Moreover, contrary to the adjudicator's comments, the CCA does not imply a construction contract where one does not exist.  The adjudicator's power emanates from the existence of a payment dispute under a construction contract.  If a construction contract does not exist, then there is no power conferred upon the adjudicator at all.  Rather, under div 2 of pt 2 of the CCA certain provisions are implied into an existing construction contract in order to fill specific gaps there may be in the contract's terms governing a payment claim.

4. Notwithstanding the difficulties, in my view the remarks of the adjudicator identified above must be read with a fair degree of latitude and indeed in this matter, benevolent generosity. The regime is designed to be rough, ready and rapid. The adjudicator under s 48 and reg 9 may well have no legal qualification and may, for example, have only a tertiary qualification in building, or indeed have no tertiary qualifications but may be a registered builder under the Builders' Registration Act 1939 (WA). (That Act has been repealed. Presumably it should now be read as referring to the Building Services (Registration) Act 2011 (WA)). For that reason, I consider that the adjudicator's remarks should be construed liberally and generously.

5. On that basis I consider that the adjudicator's remarks should be understood as concluding that having examined the documents that were provided with the adjudication application, the adjudicator came to the view that work was undertaken pursuant to oral instructions often requiring prompt repairs, sometimes estimates provided by email, and that the nature of the work was then reflected in an invoice.  The terms and conditions of payment, however, were not reflected in the Contract Document or any contractually operative document, including in the invoices.  Those terms were therefore required to be implied by the CCA and the Schedule.  In summary, there was no written formal contract between the parties which would provide the usual terms of a construction contract that govern a payment claim. Those terms were therefore to be implied into the contract by div 2 of pt 2 of the CCA. This understanding of the adjudicator's words is perhaps suggested by the first sentence of the adjudicator's remarks set out at [73] above.

Payment dispute and time it arose

1. In general terms, a payment dispute arises under s 6 of the CCA if a payment claim is disputed or remains unpaid after it has become due, whichever happens first. It is therefore necessary to identify the payment claim and the point at which the payment dispute arose.

2. The adjudicator observed, albeit in the context of considering service of the adjudication application, that: '[Mr van der Merwe] states in his Application for Adjudication that the Payment Claim was served on [Oasis Newman] on 25/04/2021.  There has been no denial that service did not occur on 25/04/2021 by [Oasis Newman]'.[62] Later, as noted at [73] above, the adjudicator stated: 'The Payment Claim was served in accordance with the practice adopted by the parties, namely by email, on 25/04/2021 and if 28 clear days are added Payment was due on 24 May 2021'.[63]

   [62] Determination [47] ‑ [48].

   [63] Determination [56].

3. The 28 days was taken from the adjudicator's conclusion that there was no provision dealing with time for payment in the construction contract and therefore by reason of s 18 and sch 1 div 5 cl 7, the time for payment was 28 days from the date of the claim. I should observe that the adjudicator refers to div 7 and '(3)', whereas the correct reference is div 5 cl 7(3).[64]

   [64] Determination [55].

4. The reference to the date of the payment claim as 25 April 2021 is taken from the form filled in by Mr van der Merwe.  As noted at [26], next to the designation 'Payment Claim Date' Mr van der Merwe entered '25/04/2021'.  Next to the designation 'Payment Due Date', Mr van der Merwe inserted '07/05/ 2021'.

5. None of the documents provided with the adjudication application disclosed a payment claim dated 25 April 2021.  There was no email of that date to support the adjudicator's conclusion that the payment claim 'was served in accordance with the practice adopted by the parties, namely by email, on 25/04/2021'.  Counsel for Mr van der Merwe readily conceded that there was no evidential foundation for that date.  

6. As noted above, Mr van der Merwe stated in the adjudication application that the payment claim dated 25 April 2021 was due on 7 May 2021.  However, the adjudicator concluded that the contract required payment within 28 days.  The conclusion of the adjudicator that the due date was 28 days thereafter, 24 May 2021, has the consequence that the adjudication application, which was dated 12 May 2021, was made before the due date for payment.[65]  It is possible that a payment dispute may have arisen prior to the due date if Oasis Newman had rejected the payment claim after receiving it on 25 April 2021 and prior to the due date.  However, there does not appear to be any evidence of that and certainly there was no express consideration of that undertaken by the adjudicator.  It is plain, however, from the documentation provided to the adjudicator, that Oasis Newman had at all times maintained its denial of any debt to Mr van der Merwe.  It would appear then, that the adjudicator took the view that the payment claim issued on 25 April 2021 was immediately disputed.  Mr van der Merwe was therefore entitled to make his application on 12 May 2021.

Summary of adjudicator's findings

[65] Determination [56].

1. With those observations and seeking to give an appropriately liberal if not generous construction to the adjudicator's words, in my view, the adjudicator in substance, reached the following conclusions:

   (a)The parties entered into a construction contract. 

   (b)The construction contract was not a formal written instrument.  It was constituted by various oral instructions and possibly emails/estimates and the nature of the work was confirmed by or reflected in invoices.[66]

   (c)The Contract Document did not constitute the contract between the parties.  Nor did the 'Terms & conditions' printed on the invoices provide the terms that governed a payment claim.  The adjudicator did not explain his reasons for concluding why those documents were not applicable or why the terms they contained did not govern the payment claims made by Mr van der Merwe.

   (d)Relevant terms of the contract regarding claims for payment and obligations to pay were not agreed between the parties and they therefore fell to be implied into the contract under Schedule 1 to the CCA.

   (e)Mr van der Merwe in his signed application stated that his payment claim was dated 25 April 2021.  This was not denied by Oasis Newman or contradicted.  In the circumstances, the adjudicator accepted that this was the date of the payment claim.  As the evidence before the adjudicator demonstrated that the parties routinely communicated by email, the adjudicator inferred that the payment claim of 25 April 2021 had been sent by email.

   (f)By reason of the relevant provisions of the CCA including Schedule 1, Oasis Newman was required to pay the Payment Claim within 28 days, that is by 24 May 2021.

   (g)At all times, Oasis Newman disputed the claim.  A payment dispute thus arose as soon as Mr van der Merwe made his payment claim on 25 April 2021.

   (h)In the circumstances Mr van der Merwe was entitled to make a claim for adjudication of the payment dispute the subject of his payment claim, as he did, on 12 May 2021.

   [66] Determination [19]-[20].

2. Having identified what it is that the adjudicator decided in the Determination, it is then necessary to turn to the grounds for judicial review.

Grounds of Review

1. The applicant originally applied for judicial review on the following seven grounds:

   (1)The adjudicator acted outside the scope of the jurisdiction conferred upon him by the Act in purporting to make the decision because the application made by van der Merwe was not served, as required by section 26(1)(b) of the Act, upon Oasis Newman within 90 business days after the dispute arose, or at all.

   (2)The adjudicator acted outside the scope of the jurisdiction conferred upon him by the Act in purporting to make the decision because the application was not served, as required by section 26(1)(c) of the Act, upon the appointor, that is Adjudication Today, within 90 business days after the dispute arose.

   (3)The adjudicator acted outside the scope of the jurisdiction conferred upon him by the Act in purporting to make the decision because the application did not set out the details of the contract which was the subject of the decision or attach the contract, as required by section 26(2)(b) of the Act.

   (4)Alternatively the details of the contract which were set out by van der Merwe were inaccurate.

   (5)Oasis Newman was deprived of natural justice by not having an opportunity to present its case as it was not served with the application before the decision was made.

   (6)Mr van der Merwe caused the adjudicator to make the decision by van der Merwe's misleading and deceptive conduct in wrongly informing the adjudicator that he engaged electrical contractors to undertake all work which was required under the Electricity (Licensing) Regulations 1991 (WA) (the Regulations) to be carried out by electrical contractors.

   (7)Alternatively, the decision was manifestly unreasonable in that all or part of the work which was the subject of the decision could not be legally carried out by van der Merwe as it would have been a breach of the Regulations.

2. In the course of oral submissions, counsel for Oasis Newman amended ground 4 to add the words 'or incomplete' so that the ground was framed: 'the details of the contract which were set out by van der Merwe were inaccurate or incomplete'.[67]

   [67] Ts, 7 December 2022, 106.

3. Grounds 5, 6 and 7 were abandoned at the hearing.

Further evidence of the parties

1. Before turning to the remaining grounds of review that were pressed, it is necessary to provide an overview of the evidence.

2. The following affidavits, subject to some objections which were the subject of rulings at the hearing, were read at trial:

   (a)Affidavit of Andrew Brian Teasdale, sworn 31 January 2022;

   (b)Affidavit of Kerry Anne Best, sworn 31 January 2022;

   (c)Affidavit of Mark Jon Keene, sworn 15 January 2022;

   (d)Affidavit of Wouter van der Merwe, sworn 28 June 2022;

   (e)Affidavit of Mark Jon Keene, sworn 26 August 2022; and

   (f)Affidavit of Mark Jon Keene sworn 8 December 2022.

3. Additionally, I received into evidence two letters dated 25 May 2022 and 10 June 2022, exchanged by the parties' solicitors in relation to the further and better particulars of the grounds of judicial review.

4. I have already set out much of the evidence above in my review of the background and the adjudication application and the determination.  The parties provided a good deal of other evidence.  It is not necessary to descend to the detail of all the evidence; much of it was of only marginal, if any relevance.  For example, the parties absorbed many pages seeking to rehearse elements of the substantive dispute between them which was largely irrelevant to this judicial review. 

5. Oasis Newman provided evidence of communications in late 2019 leading to Mr van der Merwe's engagement and I have set out the detail of this at paragraphs [6] to [13] above.  Evidence of invoices that preceded the disputed invoices were also put in evidence by Oasis Newman.  These dated back to 22 November 2019.  None of these invoices were in dispute.  It appears they were all paid, although as noted above the documentation provided with the adjudication application indicates that Mr van der Merwe complained they were paid outside the allegedly agreed term of 7 days on many occasions.  Oasis Newman also put into evidence the disputed invoices beginning with invoice no 48.  The disputed invoices largely reflect those contained in the adjudication application and the evidence filed by Mr van der Merwe in this proceeding.  However, invoice no 56 appears to be different.  Invoice no 56 attached to the adjudication application and the evidence from Mr van der Merwe was dated 8 July 2020 and was for $19,493.07.  In contrast, invoice no 56 in Mr Keene's affidavit is dated 24 June 2020 and was for $46,620.06.  Mr Keene's affidavit does not refer to invoice no 62 which was contained in the adjudication application and the evidence from Mr van der Merwe.  That invoice was dated 14 July 2020 and was for $28,826.93.  When invoices 56 and 62 contained in the adjudication application are aggregated it comes to almost (but not exactly) the sum contained in the invoice no 56 produced by Mr Keene, so that the total sum in dispute is not materially different.  Moreover, in the attachments to Mr Keene's affidavit there is a further but different version of invoice no 56 which has the same date and amount as that reflected in Mr van der Merwe's evidence.[68] Nothing was made of this anomaly in this proceeding, and I shall proceed on the basis that nothing turns on it. 

   [68] Affidavit of Mark Jon Keene (sworn 25 January 2022) MK-21.

6. Mr Keene's affidavit produced further email communications regarding the dispute that were not attached to the adjudication application.  They paint materially the same picture, although it appears from that additional correspondence that the dispute had escalated by late September 2020, including the trading of insults.  Mr Keene's email of 24 September 2020 stated his objective to 'resolve as amicably as possible'.  It then recorded a series of complaints about Mr van der Merwe's work and concluded by telling Mr van der Merwe 'the rules are I cannot be fucked around, and I will not tolerate dickheads on the job …'.  He then invited Mr van der Merwe to 'swallow some pride' and 'be reasonable'.[69]  It is fair to observe that by that stage, notwithstanding Mr Keene's professed objective of amicable resolution, the parties were in acrimonious dispute.

   [69] Affidavit of Mark Jon Keene (sworn 25 January 2022), 113.

Basis of judicial review

1. The grounds that were maintained by Oasis Newman at the hearing, that is, grounds 1 to 4, rested on the proposition that in the absence of compliance with s 26(1) and s 26(2)(b), the adjudicator lacked power to make the determination. That is because under s 31(2)(a)(ii), the adjudicator is required to dismiss the application if (inter alia) there has not been compliance with s 26(1) or s 26(2)(b).

2. Grounds 1 and 2 are directed to the combined operation of s 31(2)(a)(ii) and s 26(1). Section 26(1) requires service of the application within 90 business days after the dispute arises. The definition of business day in s 3 excludes weekends, public holidays and the period 25 December to 7 January each year. Service was required to be on Oasis Newman under s 26(1)(b) and on Adjudicate Today as the prescribed appointor under s 26(c)(iii).

3. The 90 business days run from the date on which the dispute arises. Section 6 provides:

   (1)For the purposes of this Act, a payment dispute arises if —

   (aa)a payment claim is rejected or wholly or partly disputed; or

   (a)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

   (b)by the time when any money retained by a party under the contract is due to be paid under the contract, the money has not been paid; or

   (c)by the time when any security held by a party under the contract is due to be returned under the contract, the security has not been returned.

   (2)Despite subsection (1), a payment dispute does not arise under subsection (1)(aa) or (a) to the extent to which the payment claim includes matters that were the subject of an application for adjudication that has been dismissed or determined under section 31(2).

   (3)If a payment dispute arises under both subsection (1)(aa) and (a) in relation to a payment claim then, for the purposes of this Act, the dispute arises on the earlier of the 2 occurrences.

4. As set out above, under the Determination, Oasis Newman is required to pay Mr van der Merwe the amounts the subject of invoices 48 to 64.  The latest due date on the face of those invoices was 30 September 2020 (invoice 64).  If the dispute arose when the due date passed, it would bring the latest 90-business-day limit to 18 February 2021.

5. Oasis Newman contended that the evidence I have referred to above established that it disputed the invoices by 24 September 2020.  If that is correct, it means that in respect of invoice no 64 which was due on 30 September 2020, Oasis Newman disputed the invoice before it was due.  Section 6(3) covers circumstances where the payment claim is disputed and then later becomes due.  The dispute arises on the earlier of the dates; that is, the date on which it was disputed, here 24 September 2020.  Ninety business days from 24 September 2020 is 15 February 2021.

6. It follows on the position advanced by Oasis Newman that the very latest that Mr van der Merwe could have brought an application for the latest of the invoices was 15 or 18 February 2021.  The date of the adjudication application, 12 May 2021 was obviously well after either period of 90 business days.

7. It follows that 90 business days had certainly passed in respect of the dispute over each of the invoices by 12 May 2021 when Mr van der Merwe lodged the adjudication application. Oasis Newman argues therefore that there was a failure to comply with s 26(1). The adjudicator was thus required to dismiss the adjudication application under s 31(2)(ii) and had no power to determine the application on its substantive merits.

8. Grounds 3 and 4 were directed to the combined operation of s 31(2)(a)(ii) and s 26(2)(b)(i), and in particular, compliance with s 26(2)(b)(i) which requires that the application set out the details of, or have attached to it, the construction contract or relevant extracts of the construction contract. Oasis Newman contended that the documents referred to at [6] to [10] above comprised or formed part of the construction contract. As those documents were not provided with the adjudication application (nor, it is presumably contended, 'details of' them) there was a failure to comply with s 26(2)(b). Accordingly, under s 31(2)(ii), the adjudicator was required to dismiss the application and had no power to determine the application on its substantive merits.

9. The predicate of these grounds of review is that the failure to comply with s 26(1) and s 26(2)(b) deprived the adjudicator of power to determine the application on its substantive merits. As a general proposition, that is plainly so. As the authorities discussed below make clear, if there was a failure to comply with those sections then the adjudicator was obliged to dismiss the application under s 31(2)(a) and the adjudicator did not have power to determine the dispute on its substantive merits. However, on the basis of the formulation of the adjudicator's conclusions that I have set out above, there appears to have been no absence of compliance. As to the 90-business-day limit the subject of grounds 1 and 2, the payment claim was made on 25 April 2021, immediately became the subject of a payment dispute (as it was immediately disputed), and the application was made on 12 May 2021, within 90 business days of the dispute having arisen. As to the requirement of s 26(2)(b)(i), the adjudicator appears to have found in effect that insofar as the construction contract was in writing, it was comprised of various documents (emails and invoices) that were provided with the adjudication application. The relevant documents were thus attached or their details 'set out' in the application. Although the adjudicator did not explain in any detail how he reached his conclusions (and no complaint is advanced regarding the lack of reasoning), it is apparent that the adjudicator considered there had been compliance with s 26(1) and s 26(2)(b) and he was empowered to determine the application on its substantive merits.

1. As I have noted, the adjudicator found the construction contract to be something other than that evidently understood by Mr van der Merwe. The adjudicator also adopted terms of the contract that were not those asserted by Mr van der Merwe to be applicable under the contract as he understood it. For example, the adjudicator concluded that payment was due within 28 days of a payment claim on the basis that this term was implied by the CCA. In contrast, it was Mr van der Merwe's position that payment claims were due within 7 days under the contract as he understood it. Although I am in a position to conclude that there was, objectively and uncontroversially, a construction contract, I am not in a position to identify precisely what comprised that contract and therefore to identify its terms. I cannot ascertain, objectively, what in fact comprised the contract and its terms. That is because in order to do so, I would likely need to consider carefully all the communications between the parties, including evidence of the oral conversations. For example, the email I referred to at [15] above of 5 December 2019 attaching the Contract Document referred to a meeting between Mr van der Merwe and Mr Teasdale and asserted some agreement was reached at that meeting. It is likely that evidence of what was said at that meeting would be important to a concluded view about the identification of the contract between the parties and its terms. No evidence of what was said at that meeting was provided to the adjudicator or, beyond the 5 December email itself, to this court.

2. In my view, that predicament is unremarkable. The CCA is designed to operate in a rough and ready manner, and it is no surprise that it may require the adjudicator to conclude that there was indeed a contract even if all its precise terms and constituent elements cannot be fully identified in circumstances such as these. In my view, that unremarkable circumstance also fortifies the conclusion that the requirement of s 31(2)(a)(ii) and s 26(2)(b) does not require a substantive evaluation of the contract or a substantive determination of whether the correct 'relevant' extracts have been provided. This case is an illustration of why that is unlikely to have been the legislative intention. The applicant for adjudication here was an unrepresented and a legally unsophisticated sole tradesperson who gathered the relevant documents together as best he could in order to be paid what he considered he was owed for a significant amount of work over some time, in respect of which he appears to have been significantly out of pocket. An ultimate determination of the precise terms and constituent elements of the contract was simply not feasible within the truncated and compressed regime provided by the CCA. Yet in my view, when one considers the parliamentary materials and judicial observations that have been cited and repeated in the many cases under the CCA, the conclusion is inescapable that Parliament intended that the adjudication regime encompass just such a person and just such a predicament.

3. I should add the observation of Martin CJ set out at [131] above, that if in undertaking the substantive determination of the merits of the dispute, the adjudicator wrongly identified the construction contract and thereby expressly excluded from consideration the construction contract in respect of which the payment dispute arose, or took no account whatsoever of that contract, then the adjudicator may well have exceeded the jurisdiction conferred by the CCA.[115]  For reasons I have explained it may not be possible to ascertain whether that occurred on this occasion.  But in any event, that is not a ground of review advanced in this judicial review application.

   [115] Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; 50 WAR 399 [101].

Application of principles to grounds of review

1. It is then convenient to turn to the grounds of review that were advanced and maintained.

2. The first two grounds concern the combined operation of s 31(2)(a)(ii) and s 26(1). Specifically, Oasis Newman contends that the jurisdictional precondition of the application being prepared and served within 90 business days of the dispute arising was not satisfied, as I have explained above.

3. To satisfy the relevant requirements of s 31(2)(a)(ii) and s 26(1) it is necessary determine the date on which the dispute arose and then calculate 90 business days from that date. As noted in [90] above, s 6 provides the means by which the date of the dispute is determined. Essentially it is the earlier of the date a payment claim is due but unpaid, or the date a payment claim is disputed. For that purpose, it is first necessary to identify the payment claim, and from there the date it was due or disputed.

4. As noted above, the adjudicator dealt with compliance with s 31(2)(a)(ii) and s 26(1).[116]  Notwithstanding some regrettable conflation of service of the payment claim with service of the adjudication application, as I have set out above, the adjudicator appears to have found that the payment claim was served on Oasis Newman on 25 April 2021 and was immediately disputed and therefore the application was brought within 90 business days of the dispute arising.  There was no document included with the application (or provided in the evidence to this court) which demanded payment and was dated 25 April 2021.  The date of 25 April 2021 simply comes from the date filled in by Mr van der Merwe on the application form.  No complaint is made by Oasis Newman that there was a failure to comply with s 26(2)(b)(ii) even though a payment claim of 25 April 2021 was not attached to the application, presumably because Oasis Newman accepted that at least 'details of' 'any payment claim' were set out in the adjudication application.

   [116] Determination [43], [47]-[56].

5. In my view it follows from the principles I have set out above that the adjudicator's power to determine a dispute on its substantive merits is predicated on the objective existence of a payment dispute which itself requires the objective existence of a payment claim.  There was simply no foundation at all for the adjudicator's conclusion that there was a payment claim of 25 April 2021 that formed the basis of a payment dispute.  Moreover, the adjudicator's curious conflation of the service of the payment claim and service of the adjudication application is suggestive of confusion and likely error.  In my view, the adjudicator's finding of a payment claim on 25 April 2021 is unsustainable. 

6. Indeed, neither party to this judicial review application proceeded on the basis that there was a payment claim dated 25 April 2021. Oasis Newman contended that the payment claim was contained in the relevant invoices and that, in accordance with s 6, the payment dispute arose in respect of each invoice when each invoice was due and unpaid or when each invoice was disputed (whichever came earlier). Counsel for Mr van der Merwe in effect conceded the adjudicator's error but contended that it was an error made within the adjudicator's authority and therefore did not impugn his power to determine the dispute on its merits. In that respect, counsel for Mr van der Merwe urged me not to follow what he characterised as the obiter observations of McLure P in Laing O'Rourke but to adopt the approach preferred by Pritchard J in Cape Range.  I would not be inclined to that course but in any event, I do not consider that course would be correct in light of the approach taken by the majority of the Court of Appeal in Samsung v Duro.  Somewhat surprisingly, neither counsel made reference to that decision.

7. As I have observed, the relevant precondition to the existence of the adjudicator's power is the objective existence of a payment dispute which in turn requires the objective existence of a payment claim.  Counsel for Oasis Newman accepted that if, as a matter of objective fact, there was a payment dispute that arose within the 90 business days prior to the adjudication application then the relevant precondition for the existence of the adjudicator's power was satisfied, and that was so even if the adjudicator had not appreciated or correctly articulated the objective fact of the payment claim and resultant payment dispute.  Thus, if there was, as a matter of objective fact put before the adjudicator, a payment claim giving rise to a payment dispute in the 90 business days prior to the adjudication application, then the precondition to the adjudicator's power was satisfied even if the adjudicator was plainly wrong in his finding about a payment claim on 25 April 2021 and the resultant payment dispute.

8. In the course of the hearing, I raised with the parties the fresh demand from Marshall Freeman (the debt collectors) that I referred to at [23] above.[117]  That demand was dated 26 February 2021.  I raised with counsel the possibility that the demand constituted a payment claim for the purposes of the CCA.  The demand did not specify a date or time for payment.  It simply stated that the payment must be made, asserting in effect that the amount was immediately due.  It may have been immediately disputed but it was certainty disputed by 18 March 2021 when Oasis Newman wrote to Marshall Freeman to confirm that the entire amount was disputed.  Ninety 'business days' from 26 February 2021 on my calculation was well past 31 May 2021 so the application was on any version of the events, served on the adjudicator and Oasis Newman within 90 business days of 26 February 2021 or any date thereafter.

   [117] Ts, 7 December 2022, 35.

9. Counsel for Mr van der Merwe, perhaps unsurprisingly, adopted that position with some alacrity. Counsel for Oasis Newman submitted that the demand of 26 February 2021 could not constitute a payment claim for the purposes of the CCA because the amounts demanded had already been the subject of previous payment claims in the various invoices. Counsel for Oasis Newman maintained that submission notwithstanding paragraph (b) of the definition of 'payment claim' in s 3 of the CCA, which provides that payment claim 'includes a payment claim that includes matters covered by a previous payment claim'. In that regard counsel for Oasis Newman referred to s 6 and in particular s 6(3), set out at [109] above. It was in effect contended that as the time for the claim to be paid under the contract had passed, that time was the earlier of the two occurrences and therefore the dispute arose when the invoices were due, notwithstanding the subsequent demand of 26 February 2021. Counsel for Oasis Newman expressly rejected the suggestion that paragraph (b) of the definition of 'payment claim' permitted what is colloquially known as recycled claims, that is claims that have previously been the subject of demands for payment. Counsel contended that paragraph (2) of the definition of 'payment claim' was limited to claims or demands for money that had not been the subject of a previous claim. The contrary construction of those provisions is that on a proper construction of the CCA, the fresh demand of Marshall Freeman constituted a payment claim, the rejection of which created a fresh payment dispute from which time the 90 business days began to run anew.

10. Counsel for Oasis Newman placed emphasis on the terms of s 6(3).  He submitted that the time when the amount was due under the contract had passed.  Notwithstanding subsequent fresh demands and disputation, that remained the case – the time at which the amount was due under the contract did not change.  In those circumstances s 6(3) provides that the time when the amount was due under the contract, being the earlier date, remained the date on which the dispute arises.  Counsel submitted that the object and affect of paragraph (b) of the definition of payment claim was limited.  Where a payment claim includes claims that were previously demanded in addition to new claims, the statutory definition clarifies that the claim is still a payment claim but only in respect of the new claims.  The purpose of the provision is to clarify that the inclusion of prior claims does not disqualify those parts of the claim that are new as constituting payment claims.

11. The competing constructions direct attention to the proper meaning of s 6 and paragraph (b) of the definition of payment claim. The object of that exercise is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have.[118]  The reference to legislative intention means the imputed intent ascertained by the process of applying the principles of statutory construction to the text.[119]

    [118] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].

    [119] For an excellent and recent overview of the principles, see Barnes J, Dharmanada J and Moran E, Modern Statutory Interpretation (2023) [4.1], [4.4].

12. The principles of statutory construction were reiterated and set out by the Court of Appeal in Mighty River International Ltd v Hughes.[120]Buss P summarised the principles as follows:

    In Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:

    'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'.  So must the task of statutory construction end.  The statutory text must be considered in its context.  That context includes legislative history and extrinsic materials.  Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.  Legislative history and extrinsic materials cannot displace the meaning of the statutory text.  Nor is their examination an end in itself.'

    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The statutory text is the surest guide to Parliament's intention.  The meaning of the text may require consideration of the context, which includes the existing state of the law, the history of the legislative scheme and the general purpose and policy of the provision (in particular, the mischief it is seeking to remedy). 

    The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.  The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.[121]

    [120] Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1.

    [121] Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1 [85].

13. Beech JA summarised the relevant principles (in respect of which Murphy JA expressly agreed) as follows:

    The task of statutory construction requires primary attention to the text and, to the extent that assists in identifying the meaning of the statutory text, also to purpose, context and other extrinsic materials.  Purpose is to be discerned from the text or with appropriate reference to extrinsic materials, not from assumptions about the desired or desirable reach or operation of the statutory provisions.[122]

    [122] Mighty River International Ltd v Hughes [2017] WASCA 152; (2017) 52 WAR 1 [350].

14. In addition, s 18 of the Interpretation Act 1984 (WA) provides that a court should prefer a construction of a statutory provision that promotes the purpose of the provision.  Section 19 of the Interpretation Act also provides that if the meaning of the provision is ambiguous or obscure or the ordinary meaning of the text leads to an unreasonable result, a court may have regard to the explanatory memorandum relating to the relevant Bill.

15. Independently of those statutory provisions the common law requires statutory construction to be undertaken in a wide context that may include the legislative history and extrinsic materials.  The Interpretation Act and the common law operate as coexisting gateways for consideration of extrinsic materials, although the gateway under the common law is more liberal as the common law does not require the text to be ambiguous or the satisfaction of any other condition.[123]

    [123] See Barnes J, Dharmanada J and Moran E, Modern Statutory Interpretation (2023) [24.2], [24.4], [24.8].

16. Paragraph (b) of the definition of payment claim was introduced into the CCA by s 4 of the Construction Contracts Amendment Act 2016 (WA). The same Act also amended s 6. Prior to its amendment, s 6 did not include sub‑sections (2) or (3). In addition, there was no sub‑section (aa). Prior to the amendments, s 6(a) provided that a payment dispute arises 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 the claim has been rejected or wholly or partly disputed'. The amendments, in effect, separated into two distinct subsections the disputing of the claim and the failure to pay the claim by the due date. Section 6(3) was introduced at the same time.

17. The Explanatory Memorandum to the Construction Contracts Amendment Bill 2016 included the following in the Introduction section:

    The Bill …. Clarifies that for the purposes of the Act a payment claim made under a construction contract can include matters in a previous payment claim, meaning if the claim is disputed the time limit for applying for adjudication commences from the latest dispute;

18. In the Clause Notes the Explanatory Memorandum set out the following in respect of paragraph (b) of the definitions of a 'payment claim':

    This new definition of payment claim in the Act will operate in conjunction with the definition of a 'payment dispute' in section 6 of the Act, and the amendments made by clause 6 of the Bill. Together they will provide that if a payment claim made under a construction contract includes matters in a previous payment claim, and this latest payment claim is rejected, wholly or partly disputed, or not paid in full by the time payment was due, then for the purposes of the Act a payment dispute arises. Colloquially, this is referred to as "recycling" or "resubmitting" payment claims.

    This clause will ensure that even if the matters in the previous payment claim were rejected, wholly or partly disputed, or not paid in full by the time payment was due, then for the purposes of section 26(1) of the Act, the time after which an application for adjudication may be made commences from when the latest payment claim is disputed.

19. In my view, the text of the provisions, the legislative history and the context and purpose of the provisions indicate that the object of the amendment was to permit 'recycled' claims; that is to permit a fresh claim to made in respect of matters that had already been claimed, and that the time limit would run anew from when the fresh demand is disputed. The construction advanced by Oasis Newman would not produce that outcome. Indeed, on its construction, paragraph (b) of the definition of payment claim would have very limited, if any utility. The significance of a payment claim under the CCA is that under s 6 its rejection (by failure to pay or by disputation) gives rise to a payment dispute with its attendant rights of adjudication. Repeated or fresh demands will often if not almost invariably be made after the time for payment under the contract has passed. Indeed, that is usually why a fresh or repeated demand is made. If the 'earlier occurrence' is unalterably fixed by the 'due date under the contract' then no purpose can be served by any fresh demand.

20. The text of s 6 including of course s 6(3), is to be construed in light of legislative history and context of the statutory amendments brought about by the Construction Contracts Amendment Act 2016. If a payment claim is disputed prior to the due date, s 6(3) applies so that the dispute arises when the claim is disputed. Similarly, if the payment claim is not disputed until after the date due under the contract, s 6(3) provides that the dispute arises on the date the claim was due under the contract. But if there is a fresh recycled demand after the due date, then in my view s 6(3) does not operate so as to fix permanently the date of the dispute by reference to the original due date under the contract. Rather, in those circumstances, the date the claim was originally due under the contract ceases to be operative. The dispute will arise when the fresh demand is disputed or when the time due under the fresh demand has passed. The fresh demand may, for example, demand payment within 7 days. The effect of that, in my view and adopting a purposive approach to the statutory provision, is to resurrect the demand due under the contract for the purpose of s 6(1)(a) so that the due date is then 7 days from the demand. A recycled claim will commonly demand, as it did in this case, immediate payment. In my view, in those circumstances the due date under the contract for the purpose of s 6(1)(a) will be the date of the demand. That is, the effect of the fresh demand is to resurrect the demand under the contract such that under the contract it is immediately due.

1. It might be thought that s 6 in its present form is directed to a payment claim regime that is more formal and prescribed as one commonly finds in large scale construction contracts. Under contracts of that ilk, the process of issuing payment claims and including items from previous claims that remain unpaid, is more prescriptive and formalised. The operation of s 6 in its present form it is perhaps more easily understood in that context. However, in my view there is no warrant to limit the operation of s 6 to that more formalised context. As I have explained, the CCA was designed to include, if not designed primarily to accommodate, far less formal and prescriptive processes.

2. It is noteworthy that, although the matter was not the subject of detailed consideration, in Sandvik Mining and Construction Australia Pty Ltd v Fisher [No 2] Archer J explained:

   Section 3(b) means, in effect, that if items in a payment claim are rejected, those items may be repeated in a subsequent payment claim.  This is sometimes referred to as 'recycling' claims.  By reason of this definition, the time within which an application for adjudication of those items must be made only starts to run when the latest payment claim is disputed.[124]

   [124] Sandvik Mining and Construction Australia Pty Ltd v Fisher [No 2] [2020] WASC 123 [57].

3. It follows that in my view a payment claim was made by Mr van der Merwe on 26 February 2021, which was immediately due, or disputed at that time or soon thereafter.  In either event, as a matter of objective fact, the application for adjudication was served on the appointor and on Oasis Newman within 90 business days of the payment dispute arising.  The relevant precondition to the adjudicator's power was thus satisfied.  The adjudicator's failure to appreciate or articulate those matters did not deprive him of the power enabled by the objective existence of the jurisdictional fact.

4. For those reasons, I do not accept that the adjudicator lacked power because the adjudication application was not served within 90 business days of the date on which the dispute arose as required by s 26(1)(b) and s 26(1)(c), and accordingly I would not uphold grounds 1 and 2.

Grounds 3 and 4

1. Grounds 3 and 4 are directed to an asserted absence of power by reason of the operation of s 31(2)(a)(ii) and s 26(2)(b)(i). Oasis Newman contends that the adjudicator was bound to dismiss the application under s 31(2)(a)(ii) and had no power to determine the dispute because Mr van der Merwe failed to comply with s 26(2)(b)(i) in that the contract was comprised of, or at least included emails that were not attached to the application for adjudication, nor were details of them set out. Accordingly, there was either a complete failure to comply (ground 3), or the compliance was incomplete or inaccurate (ground 4). For the reasons I have set out above, I have concluded that the statutory precondition to the existence of the adjudicator's power to determine the dispute on its merits is the objective existence of the matters required by s 26(2)(b)(i), as a matter of form.

2. In my view, there was, objectively, compliance with the requirements of s 26(2)(b) in the relevant sense. It may not have been tidy, it may not have been precise, and it may not have been legally correct in that it may ultimately be demonstrated that the contractual or other documents attached to the adjudication application or the details set out by Mr van der Merwe did not, either entirely or perhaps at all, comprise the 'construction contract' or the 'relevant extracts' of it. However, Mr van der Merwe evidently understood that the Contract Document constituted the contract and that subsequent documents (including invoices and emails), referred to its terms. Mr van der Merwe attached those documents to his adjudication application. That was all apparent from a perusal of the application. The fact that, at the second stage, on a substantive consideration of the merits of the dispute pursuant to s 31(2)(b) of the CCA, the adjudicator took a different view to Mr van der Merwe in respect of what comprised or constituted the construction contract, does not in my view, deprive the adjudicator of power.

3. Indeed, the appreciation of the two separate steps under s 31(2) in that context reinforces in my view, the conclusion I have reached that the 'narrow jurisdictional fact' prescribed by the combined operation of s 31(2)(a)(ii) and s 26(2)(b)(i) is compliance as a matter of form. It cannot be remarkable that at the first stage of assessment under s 31(2)(a) an adjudicator may form a view that those sections have been satisfied, but on a more fulsome consideration of the merits under s 31(2)(b) and s 32 the adjudicator forms a different view about the construction contract or its 'relevant' terms. That cannot mean in my view that the adjudicator's subsequent more considered view deprives the adjudicator of power unless, for example the adjudicator reaches the very unlikely conclusion that on a deeper consideration there was in fact no construction contract or no payment dispute at all. Nor does the fact that there may have been other documents that were not provided to the adjudicator by Mr van der Merwe or anyone else, but which may ultimately be held to comprise in whole or in part the construction contract, deprive the adjudicator of the power to proceed to determine the dispute under s 31(2)(b).

4. For the reasons I have explained, I do not accept that the adjudicator lacked power because Mr van der Merwe failed to attach the construction contract or set out the details of it, or that the details were inaccurate or incomplete.

5. I should add that Oasis Newman also pointed to the fact that there was no evidence before the adjudicator that the Contract Document was provided to Oasis Newman, as the email of 5 December 2019 attaching that document was not included with the adjudication application.  In my view, nothing turns on that point in this application for judicial review.  Evidence of that nature is not a precondition to the existence of the adjudicator's power of determination.  Rather, such matters fall to be considered by the adjudicator in the exercise of his or her function in making the substantive determination itself under s 31(2)(b).

6. It follows that I would reject all the grounds that were maintained.

7. That is not to say that I consider the Determination to be devoid of error.  Indeed I am inclined to the view that there may well be other difficulties that may be discerned in the adjudicator's determination.  There is no utility in identifying what they may be and how they should be treated.  That is because they were not the subject of any grounds on this judicial review.  Moreover, for the reasons I set out below, I would not have entertained any amendment to raise fresh grounds of complaint in respect of the adjudicator's determination.  For the same reason, even if I am wrong in relation to the conclusions I have reached on grounds 1 to 4, I would in any event decline to grant the relief sought by Oasis Newman.

Discretionary considerations

1. Mr van der Merwe maintains that the court should decline to grant the relief sought by Oasis Newman even if it were to find that the grounds for review are otherwise meritorious.

2. The court maintains a discretion to decline the relief sought by Oasis Newman even if it finds that the adjudicator lacked power.[125] The circumstances in which a court may exercise a discretion to decline relief are various.  They include circumstances where an applicant has effectively acquiesced to the process that the applicant then seeks to challenge and circumstances where an applicant has acted in bad faith.  The latter has also been characterised as the applicant lacking clean hands.[126]

   [125] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 [73] ‑ [74]; Director General, Department of Biodiversity, Conservation and Attractions v Cosentino [2022] WASC 306 [49]; Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150 [45]; Mark Aronson et al, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7^th ed, 2021) ch 12.

   [126] Mark Aronson et al, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7^th ed, 2021) ch 12.130.

3. First, Mr van der Merwe alleges delay.  Oasis Newman filed its application for judicial review on 1 November 2021, five months after the determination.  The application was not made out of time.  Nevertheless, counsel for Mr van der Merwe directed attention to the object of the CCA to provide a rapid and efficient means of adjudication with the object of a binding interim decision to facilitate the flow of funds.  In light of that statutory object counsel maintained that the five-month delay, although not outside any regulatory time limit, was such as to warrant the exercise of the court's discretion to decline relief.  I do not accept that Oasis Newman's delay was of itself sufficient to warrant the discretionary refusal of relief.  It is correct that the CCA reflects a statutory object of speed and efficiency.  Notwithstanding that, the statutory regime did not impose a time limit which Oasis Newman has transgressed or seeks to extend.  In addition, in a fresh affidavit of Mr Keene tendered on the second morning of the hearing, an explanation of the delay was provided.  Mr Keene explained that Oasis Newman in July 2021 commenced proceedings before the State Administrative Tribunal which were subsequently discontinued in October 2021 when it was apparently appreciated that the State Administrative Tribunal was not the appropriate forum.  Proceedings in this court were commenced reasonably soon thereafter.  I accept this explanation for the delay.  In those circumstances I do not accept that Oasis Newman's delay is such as to disentitle it to relief were it otherwise available.

4. However, in my view, the conduct of Oasis Newman in other respects was such as to justify the exercise of the court's discretion to decline relief.  On the evidence available to the court, including the evidence provided by Mr Keene himself, the conclusion is inescapable that Oasis Newman, and in particular its sole director and shareholder Mr Keene, consciously sought to avoid cooperation with the legislative regime.  It did so by taking measures to avoid acknowledging receipt of the documents and did not deal with the documents or engage with the process even when, on its own admission in this court, it was properly served with the adjudication application.  It sought to deploy that confected ignorance of the content of the adjudication application to justify its inability to respond substantively and to contend without reasonable justification that it did not appreciate that the adjudicator was intending to determine the dispute on its merits.  Its conduct was, at the very least, high handed if not contemptuous of the process that Parliament has enacted to facilitate a fair, if imperfect, mechanism for the interim resolution of payment disputes.  Having conducted itself in that manner, it now seeks the court's intervention to overturn the outcome of the statutory process that it sought to avoid and treated with disdain.

5. I should add that these matters going to the court's residual discretion were ventilated at the hearing in the presence of Mr Keene.  As I have noted, at the commencement of the second day of the hearing Mr Keene produced and tendered a fresh affidavit which addressed a particular aspect of the discretion, namely delay.  Notwithstanding his awareness of the facts and issues, and his clear ability to adduce fresh evidence to address them, nothing further was forthcoming from Mr Keene or Oasis Newman to shed any different light on the circumstances that were reflected in the evidence before the court.  Mr Keene did not lack for opportunity to address these criticisms.

6. It is noteworthy that Mr Keene's further affidavit annexed correspondence from his solicitors to Adjudicate Today following the handing down of the Determination.  The correspondence sought to challenge the Determination.  By correspondence dated 23 August 2021 to Adjudicate Today, Oasis Newman's solicitors asserted, among other things that '[c]rucially ... the relevant documents were never served upon Oasis Newman'; and 'Oasis Newman has never received the supporting documents for the application for adjudication' (emphasis in the original); and 'the relevant documents have not to the date of this letter been provided to Oasis Newman'; and 'my client has never received the relevant documents for the adjudication'. Those strident assertions were made in what purported to be an application to the adjudicator under s 41(2) of the CCA to correct various alleged omissions or material mistakes. It was in effect an application to the adjudicator to change the Determination. In a further letter to Adjudicate Today dated 14 September 2021, Oasis Newman's lawyers again asserted 'Oasis Newman was never served with the supporting documents for the application for adjudication'. It is now plain that, on Oasis Newman's own admission, those strident assertions were not correct. It is also to be borne in mind that Oasis Newman seeks to invoke the discretionary power of the court to set aside an adjudication on the basis of Mr van der Merwe's failure to comply with requirements relating to service and the provision of documents or information. Oasis Newman seeks that relief in the circumstances I have described; where it adopted a strategy in the adjudication process of avoiding and/or denying service and electing not to provide documents or anything other than cursory information that might have assisted in determining the merits of the dispute.

7. The circumstances that weigh against the grant of discretionary relief in respect of grounds 3 and 4 in my view are particularly weighty.  Mr Keene on behalf of, and as the controlling mind of Oasis Newman, consciously avoided engaging in the statutory regime.  As part of that strategy Oasis Newman did not file a substantive response and contented itself with some cursory assertions based, Mr Keene claims, on his belief that the adjudicator was only dealing with the question of jurisdiction.  An elementary examination of the CCA and the correspondence from Adjudicate Today could not have created that impression to any reasonable person.  The conclusion is inescapable that Oasis Newman made a tactical decision not to engage in any substantial way with the adjudication process including by not providing its own version of the events or any documents.  It now complains that the adjudicator lacks power because the correct documents were not provided to the adjudicator with the application.  That contention is in my view, the embodiment of chutzpah.  It ought not to be rewarded with the grant of discretionary relief.

Conclusion

1. For the reasons I have set out, I would dismiss the application for judicial review.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IS

Associate to the Honourable Justice Solomon

24 MARCH 2023