Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd & Anor; Maxcon Constructions Pty Ltd v Vadasz & Ors

[2017] HCATrans 226

[2017] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S145 of 2017

B e t w e e n -

PROBUILD CONSTRUCTIONS (AUST) PTY LTD ACN 095 250 945

Appellant

and

SHADE SYSTEMS PTY LTD ACN 134 134 400

First Respondent

DORON RIVLIN

Second Respondent

Office of the Registry
  Adelaide  No A17 of 2017

B e t w e e n -

MAXCON CONSTRUCTIONS PTY LTD

Appellant

and

MICHAEL CHRISTOPHER VADASZ (TRADING AS AUSTRALASIAN PILING COMPANY)

First Respondent

ADJUDICATE TODAY PTY LTD

Second Respondent

CALLUM CAMPBELL

Third Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 NOVEMBER 2017, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   Your Honours, I appear with my learned friends, MR S. ROBERTSON and MR FORGACS, for the appellant, Probuild Constructions, in the first appeal (S145/2017).  (instructed by Maddocks Lawyers)

MR R.J. WHITINGTON, QC:   May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the appellant, Maxcon Constructions, in the second appeal (A17/2017).  (instructed by Diakou Faigen)

MR M. CHRISTIE, SC:   May it please your Honours, I appear with my learned friend, MR D.P. HUME, for the first respondent in the first appeal (S145/2017) and the first respondent in the second appeal (A17/2017).  (instructed by Moray & Agnew and CCS Legal Pty Ltd)

KIEFEL CJ:   Thank you.  There are submitting appearances for the second respondent in the first appeal and the second and third respondents in the second appeal.  Yes, Mr Walker.

MR WALKER:   Your Honours, the issue in our appeal arises in the following framework.  There was claimed and at first instance vindicated a jurisdiction to review by relief in the nature of certiorari a decision of an adjudicator under this novel statutory scheme.  The Act which created the scheme for the public purposes spelled out in it did not include any privative provision.

By dint of the character of the scheme as one for the public purposes spelled out in the Act which had the effect of creating novel rights of what might be called payment on account provisional payments in order to fund commercially a sector of an industry in which Parliament was concerned was that in the Court of Appeal what we submit is a premise for the availability of the certiorari jurisdiction turned out to be regarded as its displacement.

There are, of course, two statutes in question but the second of those, the Supreme Court Act, is, as your Honours appreciate, of a special kind.  It might even be regarded with a determined use of the lower case as a constitutional statute.  Your Honours appreciate that the dates in question upon which our submissions turn, and to which our first proposition turns, might be set out as following. 

In 1984, not for the first time, this Court pronounced a well‑established and very important tenet of statutory interpretation in Hockey v Yelland (1996).  The Parliament of New South Wales responded to this Court’s decision in Craig, in particular concerning judicial review by relief in the nature of certiorari for error within jurisdiction on the face of the record – error of law on the face of the record – and, of course, then in 1999 there is the Act in question which lacks any of the privative provisions that might have determined the issue.

In short, we submit, as you see in our proposition 1, that there was a settled doctrine that the entire approach of the Court of Appeal contradicts.  The explanation of that doctrine is, in our submission, made the more emphatic by the particular words that this Court was looking at in the Queensland statute in Hockey v Yelland (1984) 157 CLR 124.

Your Honours will find the words of the particular statute commencing at the foot of Chief Justice Gibbs’ reasons on page 129 and over the page on 130.  It is to be emphasised, of course, that that also is a statute of evident public importance concerning what could only be described as payments that one may be confident Parliament intended to be made expeditiously rather than after unjustified delay.

The nature of the medical board determination in that case which concerned, in particular, one of the essential criteria for access to workers compensation was described in the passage you will find about an inch down from the top of page 130 as being:

final and conclusive –

and one sees that:

the worker in question shall have no right to have any of those matters heard and determined by an Industrial Magistrate, or, by way of appeal or otherwise, by any Court or judicial tribunal whatsoever.”

The way in which the case was presented involved, as His Honour points out in the next paragraph, a concession but his Honour, joined in this regard by everyone except Justice Mason, regarded the concession as correct:

It was correctly conceded –

his Honour notes, that those provisions:

do not oust the jurisdiction of the Supreme Court to issue writes of certiorari.

His Honour then referred to a:

well recognized principle –

I interpolate - nothing in the course of decision and authority in this Court since 1984 suggests that that well‑recognised principle has either been exposed as wrong or as requiring different articulation from what it found in this case:

that the subject’s right of recourse to the courts is not to be taken away except by clear words –

I interpolate again.  What the Supreme Court Act does by its declaration and confirmation and, perhaps, its expansion in section 69 of this jurisdiction is to attend to a jurisdiction which is perfectly general, that is, it applies to everything within a class generally expressed.  That class, relevantly, is of official decisions of a requisitely public character of a kind which lends itself either to jurisdictional error – not our case – or error within jurisdiction of a particular kind, namely, that which is described as error of law on the face of the record. 

That is a perfectly general jurisdiction.  It applies to particular regimes or schemes, if one wants to use those words, practically always created by statute, of course, which will fit those general criteria in the exercise and availability of that general jurisdiction.

GAGELER J:   Mr Walker, the adjudicator’s determination under section 22 is, at least ordinarily, to include the reasons for the determination. 

MR WALKER:   Yes.

GAGELER J:   You accept that it is within the jurisdiction of the adjudicator to take a view of the common law and any applicable statutory law and to make a decision within jurisdiction that gets the law wrong.

MR WALKER:   Yes.  The whole of our case is about an error within jurisdiction.  Our appeal, unlike the second appeal today, does not involve any attempt by us to characterise what is common ground was an error as being a jurisdictional one.  So the general jurisdiction I am referring to is not jurisdiction in the nature of certiorari simpliciter, it is that species of certiorari jurisdiction directed to error of law on the face of the record which is within jurisdiction.

GAGELER J:   I have that, but I have a difficulty.  If you accept that the proper construction of the statute is that it confers authority to decide a question of law wrongly on an adjudicator and you look at the terms of the statute you see that the adjudicator is always to set out the adjudicator’s reasoning in what we can accept to be the record.

MR WALKER:   Yes.

GAGELER J:   Would that not lead to a contradiction in the statutory scheme if you interpret the scheme as saying you can err in law and you must write it down, but when you write down an error it can lead to the quashing of the decision?

MR WALKER:   No, and it may be it is the first step in what your Honour puts to me that needs to be analysed.  The notion that the statute says to the decision‑maker, “You can err,” is, with respect, quite a sophisticated elaboration requiring an understanding of judicial review principles in order for that to be accurate.  Reading the statute itself as a scheme in fact textually supports the immediate response to the question, “Can I make a mistake?” asked by an adjudicator.  Answer:  no, not at all.  You are, under section 9, to calculate the amount of the progress payment to which a person is entitled to be – the first alternative – the amount calculated in accordance with the terms of the contract, not an amount purportedly calculated, not an amount wrongly calculated, not an amount contrary to the terms of the contract but an amount calculated in accordance with the terms of the contract.

So, the parliamentary requirement is to get it right but the parliamentary requirement does not make that a jurisdictional requirement.  That is where, as a matter of judicial review, administrative law, that is why it can be said in a more extended sense “but there is a right to be wrong”, to use the slogan deployed in undergraduate classes.  It does not mean that the statute dispenses you from a standard against which your error might emerge when your work is measured, that is, you will have been held wrong in any appropriate judicial review.  There is no right to be wrong in the sense that there is an entitlement as part of your statutory obligation to make an error.  Rather, there is immunity from review on the ground of jurisdictional error for being wrong.

GAGELER J:   So you have authority to be wrong ‑ ‑ ‑

MR WALKER:   Yes.

GAGELER J:   ‑ ‑ ‑ but if you get it wrong your decision will be quashed.

MR WALKER:   That is correct and that is not only not a contradiction, it is why there is the two‑pronged nature of relief in the nature of certiorari.  It is no contradiction for those two prongs to exist.  The second prong, error within jurisdiction is of course fundamentally different from the first.  The first measures an excess or a failure to exercise power.  The second accepts that there has been a power exercised but detects that which the common law of judicial review of such decision‑making regards as requiring a quashing; namely, an error of law on the face of the record, to use ‑ ‑ ‑

EDELMAN J:   Essentially, every type of non‑jurisdictional error is, to use the slogan, within a right to be wrong.

MR WALKER:   Yes, yes, it is but that does not mean, as it were, it is right in the sense of correct to be wrong; of course not.  Nor does it mean that you have an entitlement in the sense of an immunity from judicial review to be wrong.  That is the big distinction between the first prong, which is not in question in our case.  It is now in this country protected by Kirk, of course, namely, the jurisdictional error prong of certiorari jurisdiction.

Justice Gageler’s question, with great respect, goes to the heart of the matter.  Is there a tension, perhaps emerging since Kirk, though we would respectfully submit not on account of anything written in Kirk, of a kind that is informative for today’s issue between the review for jurisdictional error and the review of non‑jurisdictional error?  Our answer, as your Honours would expect, is of course there is no tension.  They are dealing with different occasions for the judicial arm to check an aspect of what the legislative arm has required in terms of what I might call administration.  It is too late in the day to deny the utterly well‑established common law of judicial review, namely, that certiorari is available for error of law on the face of the record of particular kinds of decision‑making, of which this is one. 

That being the common law, one looks for a statutory indication otherwise. But the common law being law which bestows jurisdiction of course is picked up by section 69 of the Supreme Court Act, which talks of the continuing power.  That common law being with that particular subject matter of constitutional import, it has attracted the warning or canon or tenet of statutory interpretation to which this Court was turning, not as a new discovery but as a very important and enduring proposition in Hockey v Yelland.

As your Honours appreciate, provisions which are privative in nature need, in a modern statute, to deal with a number of different possibilities.  The first is that which by Hockey v Yelland had been available for over 100 years one way or the other in various cases, namely, so‑called appeals.  It does not matter whether one is talking about what we would call a true appeal or whether one is talking about access to the courts in the court’s original jurisdiction by way of something which is labelled under a statutory scheme “appeal from an administrator”.

Similarly, the notion of rehearings, be they de novo or in a technical sense, all of those matters are fit subject matter for anything that might be a privative provision.  But judicial review not on the merits but either for judicial error, a jurisdictional error – not our case – or non‑jurisdictional error being error of law on the face of the record that had, by Hockey v Yelland’s decision, been well established to be a general jurisdiction, the significance of which was such that the privative provision had to effectively indicate its ouster. 

That is why, as I say, the passage on page 130 of 157 CLR is, in our submission, massively a fortiori for us in this sense.  There is no privative provision in this statute.  The Court of Appeal seems, we respect, in a way that reverses the proper approach, to have treated the absence of a privative clause as apt more obviously to indicate the unavailability of the remedy of certiorari for error of law on the face of the record.

GORDON J:   But absent the privative clause, you still have a question of statutory construction.

MR WALKER:   Of course, your Honour.

GORDON J:   It does not just beg the question.

MR WALKER:   No.  We are told in Hockey v Yelland that you look at the enacted words.

GORDON J:   That is what I meant, so it is a statutory question of text, context and purpose, clear words there or not there.

MR WALKER:   All of that.  That is our case, your Honour.  It does not require ‑ ‑ ‑

GORDON J:   Anything else.

MR WALKER:   It does not bear a deal of elaboration.  We say there is no privative provision.  We accept, I admit somewhat grudgingly, that in theory one might, without something that looks privative, nonetheless have a scheme which bespeaks text, context and purpose.

GORDON J:   That is the argument against you, that there is a scheme that says taken as a whole that there is ‑ ‑ ‑

MR WALKER:   I do understand that, your Honour.  What I am saying is there is nothing about this scheme which is remarkable in that regard at all.  Hockey v Yelland concerns something which is a more elaborate scheme than this scheme, and a scheme which even more obviously, given that we are talking about the sustenance of workers and their families, is more obviously calling for the promptness and assurance of payment. 

KIEFEL CJ:   Hockey v Yelland, though, was simply concerned with statutory provision which limited rights of appeal.

MR WALKER:   Quite.

KIEFEL CJ:   It is really contextually a long way from where we are here with this statute.

MR WALKER:   Contextually it is very similar to this case in the sense that the question arose whether what was, as it turns out on the merits, unsuccessfully contended to be an error of law on the face of the record was something which triggered a jurisdiction – the general jurisdiction.  The first of the issues decided in Hockey v Yelland was if there is a claim of error of law on the face of the record, then given the nature of this statute and after full consideration of the privative provision, the general jurisdiction is not ousted.  Now, that context is precisely the same as our case.

KIEFEL CJ:   But in Hockey v Yelland the question arises rather starkly because it is a very simple question of where a provision either speaks widely enough to oust when it speaks only of limiting appeals.

MR WALKER:   Quite, but ‑ ‑ ‑

KIEFEL CJ:   Whereas here the statute in question regulates the dealings between people – between the parties.

MR WALKER:   So they - I am sorry, your Honour.

KIEFEL CJ:   Yes, that is all.

MR WALKER:   So they did in section 14C of the statute before this Court in Hockey v Yelland.  They regulated in an extremely prescriptive way the manner by which an essential criterion of eligibility for this statutory bounty welfare would be available with words which emphatically showed that it was intended to be, to use some of the words borrowed from the reasoning against us in this case, self‑contained, coherent statutory scheme.  There was going to be a medical board, not a court, to determine the merits of the effect of the injury.

It was to be final and conclusive.  There was not to be any right to have the matters heard and determined by way of appeal or otherwise by any judicial tribunal whatsoever.  There could not have been a more emphatic demonstration, more emphatic than anything in the statute before the Court today, of the intention of the legislated scheme to be self‑contained, final, with respect to the subject matter of the novel rights created by it.

KEANE J:   Mr Walker, does it make a difference that in Hockey v Yelland the Tribunal was a medical board, as distinct from a court, an inferior court or an adjudicator who is authorised to determine questions of law?

MR WALKER:   No.  The matter of law being the fitting of established medical facts to a statutory description was as much for the medical board as…..in completion, fitting a statutory description calling up a contractual provision, is a matter of law for an adjudicator.  There is no distinction by reference to what I will call the quality of the kind of decision‑making committed to the statutory decision‑maker.  The medical board, of course, determines the merits of diagnosis, prognosis, but it also was required to fit that within a statutory description.

That after all was the burden of Mr Callinan’s unsuccessful argument concerning whether there was an error of law.  That is really analogous completely with what an adjudicator has to do here with respect to progress payments and, in particular, the terms of the contract insofar they are called up by a provision such as section 9.

There is nothing in any of the authorities antedating Hockey v Yelland, and certainly nothing since that suggests that the requirement – I will call it clear words; it is shorthand for the whole matter that Justice Gordon raised with me; it does not have to be express words is what I am saying – for clear words has not been anywhere suggested either not to apply or to apply in radically attenuated fashion by reference to some character of the decision‑maker as, say, medical or engineering or quasi‑judicial in every case because they are administering a statutory scheme there are inescapable questions of law.

By the way, if there were not then I am engaged in an exercise of inutility.  If there were not questions of law then there could not be errors of law on the face of the record.  Of course there can be errors of law on the face of a record by decision‑making by a group of medical practitioners or a group of building adjudicators or inferior court judges. 

It is for those reasons, in our submission, that it is stark, to use the Chief Justice’s expression in Hockey v Yelland, how the matter arose but it makes our case a fortiori.  There are no privative provisions here.  What you do have is a scheme.  You had a scheme in Hockey v Yelland.  You have a scheme whenever a statute sets up for the requisitely public purposes the capacity for people’s rights to be affected by determinations which may be infected by errors of law.

BELL J:   But the scheme in Hockey v Yelland produced, as it were, a permanent consequence and did not have a provision equivalent to section 32.  Really, the significance of the interim quality of the determination, in the context of the risk allocation function of this scheme, seemed to me to be significant to the reasoning in the Court of Appeal.

MR WALKER:   With great respect, correctly, your Honour.  The effect of section 32, and there are others to which I will come, is, I readily accept, a matter requiring anxious consideration as to whether it, in the context of the other provisions to which one goes, amounts to the clear words that your Honours again can anticipate my answer:  too much is required by way of, as it were, trying to spell things out and to see what is conveyed, certainly not expressly, for this to qualify for the clear words. 

Again, with no apology, I go to the stark wording in Hockey v Yelland.  There we had words in a provision which was directed to the ouster of jurisdictions, if I can put it that way.  The question was:  did those which were ousted, and some were, include certiorari?  Notwithstanding the words I have already emphasised ‑ “or otherwise” and “whatsoever” – notwithstanding that, that was not sufficient to oust the highly significant certiorari for error within jurisdiction. 

The Chief Justice points out that there had been, by then, well‑established words which statutory draftsmen, wishing to do so in order to carry out drafting instructions, could have used.  They are not prescriptive in any verbatim sense but there are questions of principle that inform those matters of nomenclature and they, in particular, include the principal difference between a mere merits review and checking for an error of law which is manifest, that is, which is apparent on the face of a record.

Furthermore, it is a jurisdiction which is intended to be constrained with respect to what could be the form of contest and, therefore, the extent of the judicial time necessary and, therefore, the delay or time that might be necessary by reason of insisting that it be on the face of the record and that the record be defined in a particular way.

When in 1996, the New South Wales parliamentary response to Craig’s Case not only confirmed the jurisdiction which was expressly claimed to be inherited from those whose ships arrived in 1788, more importantly, there was a designed determination not to narrow the jurisdiction by accepting what some might have thought was a narrowing of the definition of “record”.  That was reversed. 

There is no indication at all in any of the extraneous material that a mere three years later that general approach to an important general jurisdiction was being to the slightest degree impliedly repealed or any other effect so as to disapply it with respect to just another one of the many legislative schemes which lend themselves, in the absence of a privative clause, to certiorari for error within jurisdiction.

That is what I meant when I said in opening that the premise for the availability of certiorari, which is the creation of a scheme such as the Security of Payment Act in this case, has been wrongly treated by the Court of Appeal as indicating the displacement of the certiorari.  That is to misunderstand the general and ambulatory nature of such a general jurisdiction with respect to not only already existing but yet to be created statutory schemes which call for decision‑making of the necessary character and it is not in dispute in this case that the decision‑making has the necessary character which, but for statutory indication to the contrary, would see certiorari for error within jurisdiction available.

KIEFEL CJ:   Would the discretion which attends certiorari extend to permit a judge to decline to undertake review or to postpone it because of the lack of finality of the adjudicator’s determination?

MR WALKER:   Yes.  I think we have drawn in particular attention in our written submissions to how, in a very important context for that discretion, namely, interlocutory relief, that discretion would expect to be enlivened so that ‑ ‑ ‑

KIEFEL CJ:   Having regard particularly to section 32?

MR WALKER:   Exactly so.

KIEFEL CJ:   So, part of your argument rests upon the courts having sufficient control procedurally and substantively ‑ ‑ ‑

MR WALKER:   Which they do.

KIEFEL CJ:   ‑ ‑ ‑ to deal with applications on their merits.

MR WALKER:   Yes.  But that does not weaken my argument; to the contrary.

KIEFEL CJ:   No.  It may support it.

MR WALKER:   The certiorari jurisdiction comes complete, wrestling with all the powers necessary to adapt to the exigencies of the position between the parties before the court in the particular case.  This is a statutory scheme which will, as in the cases before your Honours today, cover cases that those whose bank accounts are not in question might regard as relatively modest progress payments.  It will also include massive amounts, the non‑receipt of which, or the forced payment of which, may be financial disaster for a person that would be avoidable if either the non‑receipt or the payment respectively were not justified by law.

So that that presents, if you like, two extreme possibilities where the exercise of a discretion, either with respect to interlocutory relief, that is, will there be restraint on payment or expenditure, so payment into court as opposed to a payment over, that kind of consideration is amply and satisfyingly able to be given by the existence and exercise in a particular case of the certiorari jurisdiction.

GORDON J:   The alternative of course is that which was dealt with by the New South Wales court by Justice Handley whereby you have appropriate proceedings consistent with section 32 which run alongside ‑ ‑ ‑

MR WALKER:   That is another ‑ ‑ ‑

GORDON J:   ‑ ‑ ‑ in which you have the appropriate relief directed to the ultimate and final issues of determination including, where necessary, other forms of interlocutory relief.

MR WALKER:   Yes, your Honour.  One could not be exhaustive of the possibilities but because more than one kind of proceedings in question, and in a way that is familiar from quite other areas of the law, one might find for example that a term of the exercise of a discretion, say, not to proceed to a certiorari there and then, is that the parties, particularly the party with the economic whip hand, will do everything to cooperate with, for example, expeditious, I will call them final account proceedings under section 32.  For example, there are many ways in which that could be done but, in our submission, all of that argues for, not against, the continued existence of the certiorari relief.

To jump ahead a bit, in answer to some of the matters your Honours have raised with me, the matter for which we contend in relation to the non‑existence of anything like sufficient statutory displacement of the certiorari includes cases where somebody has not been paid, has not got a determination that they should have got, perhaps for a large life‑saving, economically life‑saving sum of money.  The notion that early in the contract, long before you could have your final accounts taken under section 32, that there can be no rapid foray into the court to say, here is an error of law apparent on the face of the record.  This adjudicator’s determination is simply wrong and it ought to be quashed.

GAGELER J:   Mr Walker, can I just ask a technical question about the effect of quashing a determination for non‑jurisdictional error on the face of the record.

MR WALKER:   Yes.

GAGELER J:   The adjudicator by assumption, I suppose, has performed the duty, has exercised the jurisdiction to produce the determination within jurisdiction.  It then gets quashed.  Is the adjudicator functus or does the adjudicator have an unperformed duty, and if the adjudicator has an unperformed duty how is certiorari for error of the law on the face of the record any different from mandamus for constructive failure to exercise jurisdiction?  You understand what I am asking.

MR WALKER:   If I tell your Honours I hoped no one would ask that, that does not mean I have not been thinking about the problem because of what we seek by way of our relief.  We think it is the latter – we cannot find any clear law on the topic.  The problem arises because of a time limit for doing the requisite work.  Assuming that is directory in order to accommodate that for which we contend, namely certiorari, then it is uncompleted business rather than functus.

GAGELER J:   Well, if that is so ‑ and I am sorry I am going full circle back to my original question ‑ if that is so, then the availability of certiorari for non‑jurisdictional error of law on the face of the record is functionally no different from the availability of mandamus, prohibition, certiorari, for jurisdictional error and you say there is no jurisdictional error in making a determination that is wrong in law. 

MR WALKER:   I think the answer to your Honour’s question is no, that is not correct, except at the level which is true but, with respect, trivially true, namely, the quashing on a certiorari is quashing whether it is for jurisdictional or non‑jurisdictional error.  The fact that quashing is the remedy, is the effect of the remedy, is the order, does not make them functionally the same at all, but I may be playing semantics here.  The function of the jurisdictional error certiorari is to mark the boundary of authority and power.

GAGELER J:   Well, it is functionally no different from a declaration of invalidity.

MR WALKER:   In the sense that both mark the limits of power authority.

GAGELER J:   Yes.

MR WALKER:   Yes.  The function of a certiorari to correct – that is, to detect, call up, detect and quash a decision infected by error of law on the face of the record, is different by definition because it is within power and it is in accordance with authority to have made the error.  But the common law says judicial review should be available for those errors – that is, of law and on the face of the record – because, no doubt, another aspect of the rule of law is that things be done lawfully, within power but still lawfully in the sense of being correct, or to adapt the expression in section 9 “in accordance with” the terms of the contract; that term “in accordance with”, the law of contract accords to these terms. 

So there is a different function, again by definition, being performed by the same apparent relief quashing for the two utterly different – I mean, they are yin and yang, one is jurisdictional and one is not.  They are defined by being different from each other in that characteristic.  So that is why, with respect, there is not an inappropriate collapsing by us of a distinction but rather a continued observance by us of a distinction. 

Unless this Court were to take the, with respect, extraordinarily radical step of regarding non‑jurisdictional error by error of law on the face of the record as a dead letter, and that would be a constitutionally highly significant step, then we have the very clear common law in a decision which dating from 1984, if I could be forgiven for saying so, is not old. 

GAGELER J:   Well, Quin sort of supersedes it, does it not?

MR WALKER:   No, your Honour, there is nothing in Quin.  There is nothing in Quin that says there is, if you like, something fuddy‑duddy about the notion of errors of law on the face of the record.

GAGELER J:   What about Craig?

MR WALKER:   Craig certainly does not do that.  Now, there are passages in Craig which, if I may say so, lend themselves to extended argument and exegesis but perhaps not very profitably in the sense that you need to have concrete issues in order to deploy some of those dicta.  On my reading of Craig there is absolutely nothing that provides any ammunition for an attempt to regard as dead the common law jurisdiction, reflected in section 69 of the Supreme Court Act, to grant certiorari for error of law on the face of the record.  It is not a dead letter and the approach by the New South Wales Parliament in 1996 can be called in aid quite specifically and notably to point out the continued public good and public interest seen by that legislature in that continuing jurisdiction.

That quite remarkable explanatory note found in the statute, although validly not part of the statute but to which your Honours have had your attention drawn by the written submissions, makes it quite clear that those who saw the possibility of Craig narrowing by reference to record was to be specifically reversed by legislation.

Of course, this is one of those special areas where the common law and statute are intertwined at a level that I have called earlier constitutional.  But that rather bespeaks the significance of the principle in Hockey v Yelland, not its obsolescence.  And it is for those reasons, in our submission, that I repeat:  the oddity and error of the Court of Appeal approach here was to treat the absence of words as somehow more capable of ousting the certiorari than words which had been as directed to the ouster of jurisdiction as the privative clause before this Court in Hockey v Yelland.

Could I rapidly draw to attention, all of this is covered in our written submission, the statute.  Your Honours have seen and much can be no doubt said about what section 3 of the Security of Payment Act stipulates as the objects.  Our point, of course, is that an objects clause is about as far from the likely provenance or manifestation of the clear words necessary to oust certiorari as may be imagined.

GORDON J:   It does set up the scheme, though, does it not, in general terms?

MR WALKER:   Unquestionably.  But all statutory creations of occasions for administrators to make decisions which, but for privative provisions would be amenable to certiorari, set up a scheme.  We are not, after all, talking about the Security of Payment Act being either perfect in its execution or unique in it being schematic.  To say of a legislative provision for such decision‑making – that is, one that creates the decision‑making – that it is a scheme is really to say nothing more than that there is a statute which provides for decision‑making.  It will be a scheme, more or less well designed, more or less well executed in its drafting, regardless.

In our submission, there is no subclass of statutory decision‑making which can be seen as decision‑making within a scheme.  “Scheme” is nothing other than a figure of speech for the project which has been essayed by the Parliament.

KIEFEL CJ:   Does it matter, though, that if the scheme can be characterised as one concerning the commercial ‑ and regulating the commercial dealings between people in business, including small business?

MR WALKER:   Indeed it does.  It matters because that is utterly ambivalent.  This applies to people who are not being paid as well as to people who are being paid provisionally.  For every person who says, this scheme should protect from certiorari the provisional payments that are required to be made under it, there can be another person who says, this scheme is to provide for provisional payments which I have, by manifest error of law, been denied.  A quick certiorari will give me what this scheme requires me to have, particularly when one sees the first of the objects in section 3.

Of course, what the Chief Justice raises with me is not only manifest in section 3(1); it permeates the whole of the statute.  When one considers that what I am arguing for is a jurisdiction available to get payment as much as to resist payment then it becomes ambivalent in a way that cannot possibly supply the clear words to remove certiorari as a jurisdiction.

EDELMAN J:   When one speaks of a scheme in this context, is the reference really to something that is not a question of construction of express terms or even an implication from the statute but something more like the derivation of the policy of the statute in the same way as in cases like Equuscorp.  The policy of the statute is said to modify the common law, except here the policy of the statute is said to effect a modification of earlier statutory provisions.

MR WALKER:   The short answer is yes. 

EDELMAN J:   Is there any authority where the policy of a statute, as opposed to anything express or implied within it, has modified or impliedly repealed an earlier statute?

MR WALKER:   At this level of implied repeal, I think the answer to your Honour’s question must be yes, but I cannot think of any offhand.  That would not be unusual because that is, after all, a matter of interpreting the later statute to see whether it has achieved something as significant as implied repeal, which is sometimes almost routine. 

EDELMAN J:   Where the implied repeal is arising, not through the usual process of implication, such as dealt with in a case like Taylor v Strata Plan, where words are given a particular meaning or words are inserted, but instead it is a general policy from the statute that itself is said to effect an implied repeal.

MR WALKER: Your Honours, we would urge that for this to be seen as an occasion for the implied pro tanto repeal of section 69 of the Supreme Court Act is too large a proposition.  It is not the technique which is in question.  Section 69, like the common law upon which it falls, is about a general jurisdiction which, by definition, is of course exercisable only where it has not been excluded – not by implied repeal of section 69 but by doing that which every general jurisdiction stemming from the common law invites, namely, statutory regulation including, occasionally, ouster.

This may be six of one and half a dozen of the other.  I accept that, like implied repeal, the exercise at hand calls for consideration of the general jurisdiction, which does involve section 69, the statutory provision, as well as the antecedent common law, as well as the Security of Payment Act, which obviously is the one in question here.

In our submission, that is the importance of Hockey v Yelland, where we are talking about this subject matter of an earlier statute, if we must talk in those terms – namely, this jurisdiction by which administration, infected by error of law on the face of the record can be quashed, when we are talking about that kind of earlier provision, then one looks for the so‑called “clear words” in order for it to be ousted.  Hockey v Yelland provides a stark, very strong demonstration of what will not be sufficient – nothing like that in this case.

So, when one comes to the question, is there a policy which is evoked by use of expressions like “scheme” which will provide, functionally, the outcome that “clear words” might have provided, and I have started, however grudgingly, by accepting that, in theory, because clear words need not be expressed, any kind of words, including those which would convey what might be called the “policy of a scheme”, might in a particular case be such as to oust the jurisdiction.

However, in our submission, nothing in section 3 does so, not only because of its generality rather than specificity – that it is just lack of clarity rather than clarity ‑ but also because what it there refers to strongly bespeaks the expectation that a person wrongly denied by a manifest error of law, access the financially life‑saving money early in a building contract, should be able to get that corrected, not wait for the end of the day.

There has been, in our submission, a failure, to which our proposition 4(c) turns, in the Court of Appeal’s reasoning to appreciate that sauce for the goose, sauce for the gander, and that that need to apply the reading of the statute to denials of payment as well as to requirements for payment, is enough to indicate that there is not in the policy of this scheme – to use those words – anything like the clear words to oust such a salutary jurisdiction as the correction of an error of law on the face of the record.

I am not sure whether I completed my answer to Justice Gageler about that.  I intended to summarise where I was going by saying, we respectfully submit that the effect of quashing is to leave it to the adjudicator corrected by the quashing for reasons to attempt to make a decision in accordance with section 9, et cetera.

GAGELER J:   I notice that the order at first instance ‑ ‑ ‑

MR WALKER:   Included a remitter.

GAGELER J:   ‑ ‑ ‑ included remitter.  Where does that come from?  It is like the language of section 16 of the AD(JR) Act.  Is it – I mean, error of law on the face of the record is not a common thing, even in the Supreme Court of New South Wales.  Is certiorari normally accompanied by an order for remitter?

MR WALKER:   I cannot say that.  In my experience, no, but that, with respect, does not mean that it was wrong.  But, I would certainly argue, it is not necessary.

KEANE J:   Is not this difficulty that we are touching on highlighting that certiorari normally goes to quash a decision which is finally determinative of rights and duties?  Here, because of the statutory context in which we are operating, one does not need to talk about dead letters to notice ‑ ‑ ‑

MR WALKER:   No.

KEANE J:   ‑ ‑ ‑ that here it does not really fit because the decision of the adjudicator, while effecting rights and duties, is explicitly provisional, subject to section 32.

MR WALKER:   Yes, but your Honour, as I said earlier, there may not be any comfort in the correct distinction between provisional and final, as your Honour has used those expressions, in many, if not most, of the commercial situations that will apply here.  To be told it is only provisional, that you will be denied a $2 million progress claim without which you cannot continue to exist, will be of no comfort, with respect.  There is finality, in a sense, in the determination that at this date you are entitled to that money, which is what this Act provides for.  It is provisional in the sense that section 32 says, and we have not given the enforcement of building contracts to adjudicators, we have only given the enforcement of this novel special statutory scheme with its rights to be paid along the way.

KEANE J:   It is not just a right to be paid.  Section 3(3)(d) says:

The means by which this Act ensures . . . involves:

. . . 

(d)      the payment of the progress payment so determined.

That is to say, the objects clause indicates an intention that when there has been a determination by the adjudicator, the progress payment so determined is to be paid.

MR WALKER:   Yes, and that, of course, includes the procedure that involves section 25.  I should note that.

KEANE J:   Yes.

MR WALKER:   I have been saying, I hope not provocatively, there are no privative provisions.  But, of course, section 25 does have at a stage in the enforcement procedure something which is privative, just not privative in relation to what we are talking about at all.  If anything, the terms of section 25, in particular the expression in subsection (4)(a), “in those proceedings”, and the stage at which those provisions operate, namely, after a certificate, rather indicates that the Parliament has left open the very phase that we are seeking to occupy now, namely, a purported determination which ought to be quashed for an error of law on the face of the record, which in this case is conceded, it was an error of law on the face of the record.

Section 25 bites only after a person has not done anything to the determination.  They have let it expire.  That is, the time for payment required by it has been allowed to expire by the person dissatisfied with it, and a certificate has been issued.

GORDON J:   What cuts across most of that submission, is it not, is the fact that if you look at provisions from 14 all the way through before you even get to 25, you have got the tightest time limits in which each of these steps, whether it is from the time the payment is sought by way of the schedule of the works onwards, right through to the determination of the judgment debt.

MR WALKER:   Yes, but your Honour, unless one assumes one’s conclusion, namely ‑ ‑ ‑

GORDON J:   I am not assuming the conclusion.  I am asking whether or not the scheme and the structure set out by reference to sections 14, 15, 16, 17 and so on tend against that construction.

MR WALKER:   And my answer is no, unless you assume the conclusion, namely, that the indication of time limits for steps within the administrative process exclude certiorari for error of law on the face of the record.  Unless you assume it does, then it does not.  It is a process in which there may be error of law on the face of the record.

GAGELER J:   And it results in a quashing of the determination.

MR WALKER:   Quite so.

GAGELER J:   Then the adjudicator according to you, what, starts again ignoring the time limits, because they have already passed?

MR WALKER:   That is why, as I say, though I do not think there is any law on this, it is we think such that those limits would be regarded as directory, to use old language, that is, not going to power; not jurisdictional.

GAGELER J:   Well, could you get mandamus in the course of the adjudication to compel compliance with a time limit?

MR WALKER:   Probably.

GAGELER J:   Well they are jurisdictional in that sense.

MR WALKER:   I am sorry, your Honour.

GAGELER J:   They are jurisdictional then in that sense.

MR WALKER:   In the sense of somebody who refuses to perform a duty, yes, but not all mandamus, of course, indicates that what is presented represents jurisdictional error except in the particular sense that somebody is taking too long to do that which the law requires them to do.

GAGELER J:   So, when the adjudicator, according to Justice Emmett’s order, gets the subject matter of adjudication back again, what are the time limits that apply to the re‑determination?

MR WALKER:   Your Honour, it is tempting to say, though I have no authority to found this on, that they are the time limits starting from that time that were originally stipulated but I accept that that is a bit of construction work.

KIEFEL CJ:   Does the court remitting ‑ to put that in quotes ‑ the court sending it back to the adjudicator, have power to set time limits?

MR WALKER:   No.

KIEFEL CJ:   No, I did not think so.

MR WALKER:   No, that is the territory for mandamus in the unlikely event, not be expected of an adjudicator under this statute, of defiance of the requirement.

GAGELER J:   Does everyone get another chance at making submissions.  I mean, there is a whole process.

MR WALKER:   There is, your Honour, but, with respect, that is true of all quashing.  Every time something is quashed, that which has gone before, some of it at least, is in danger of being regarded as wasted.

GAGELER J:   Well, in a case where there has been a constructive failure to exercise jurisdiction, that is not a problem.

MR WALKER:    No, that is true.

GAGELER J:   Here, the problem arises because you are accepting that there is a non‑jurisdictional error; that is, everything that has occurred has been in jurisdiction.

MR WALKER:   Yes, but, your Honour, what we do not accept is that that has any detriment for our proposition that the jurisdiction to correct by quashing, where there is an error of law on the face of the record, is ousted by saying, you accept it is within jurisdiction.  The whole point of the jurisdiction ‑ which I keep insisting is alive and important ‑ the whole point of that is there has not been an excess of power or a failure to do that which is required in the sense of exercising your power, there has simply been an error of law on the face of the record and, not surprisingly, the common law does not treat lightly the notion that purported determinations of law may be wrong and undisturbed.

That is the whole point about error of law on the face of the record, that it is an expectation of the common law that if it be as clear as that, this public act with consequences ought to be quashed so that it may be done in accordance with law.  Now, there are policy reasons whereby parliaments may decide ‑ but not here ‑ we are not going to worry about errors of law, it can all be fixed up later, but they have not said so.

KEANE J:   Well, can I just ask you about that.  It is looking at the legislation, the historical notes; one notes that Parliament, since Brodyn, has had two occasions to revisit this statute ‑ ‑ ‑

MR WALKER:   Yes.

KEANE J:   ‑ ‑ ‑ and they have made amendments and they have not dealt in such a way as to reverse Brodyn.

MR WALKER:   No.

KEANE J:   Once you start talking about Parliament and the policies the Parliament expresses, it is said against you by Mr Christie that that is a significant matter that should weigh with us.  What do you say about that?

MR WALKER:   It lacks a necessary starting point in the argument, namely, that Brodyn indicates the unavailability of the certiorari jurisdiction for which we contend.  If that is not what Brodyn does, and it is not what

Brodyn does, then a failure of Parliament, an omission of Parliament, a silence of Parliament concerning something that did not happen in Brodyn is of no moment at all.  Unless, again, there be a form of assumed conclusion, namely, Brodyn stands against the certiorari we seek in this case, then it does not matter and Brodyn does not stand for that at all.  If it please your Honours.

KIEFEL CJ:   Yes, Mr Whitington.

MR WHITINGTON:   May it please the Court.  We wish to associate ourselves with the submissions of Mr Walker in relation to the Probuild appeal on the question of error of law.  There are just a couple of matters I wanted to mention arising out of those submissions and there is one qualification.  As I understood Mr Walker, he appeared to concede that the Act entitled the adjudicator not only to determine questions of law but to do so wrongly.  We say otherwise in relation to our submissions on jurisdictional error and I will come to that.  In other words, we say that properly construed the Act did not afford any right to an adjudicator to be wrong. 

The second matter that I wanted to emphasise, and I think that this perhaps has not been fully brought out, and that is that while the Act might provide for interim payments and it might be seen that a grant of certiorari would interrupt the flow of payments and therefore disturb a fundamental intention of the Act, that matter can be regulated as it was in this case by various procedural steps, including the grant of stays in this sense that the adjudicator’s determination can be filed under section 25 as a judgment of the court and upon being filed the contractor can move on it. 

Now, it was said – I will come back to that, but as I say, the contractor can move.  The unsuccessful party may then seek to review the adjudication and have it disturbed but, as happened in this case, the contractor, if they had been successful, is entitled to enforce their judgment absent a stay.  So the court is able to regulate the process in quite a nuanced way by the grant or refusal of stays, including as to, in effect, the requirement for a payment of money under the judgment subject always, of course, to section 32 and the interim nature of the scheme.

I should mention in that regard a decision of the South Australian Supreme Court, Romaldi Constructions Pty Ltd v Adelaide Interior Linings Pty Ltd (No 2) [2013] SASFC 124, in which the court held that it would ordinarily be inappropriate, in the exercise of the court’s jurisdiction, to grant an injunction, to allow an injunction to go to prevent registration of the adjudication determination. 

So the adjudication determination should be registered and then if a party, an unsuccessful party wants to take action by way of complaint with the determination, according to Romaldi the appropriate procedure is through judicial review process in the supervisory jurisdiction of the court, and if appropriate then a stay can go.  The scheme is quite nuanced, or can be quite nuanced, in the procedure of the court and the rights of both parties can be protected. 

There is another point I wanted to bring out, and that is that it is important to appreciate – I think Mr Walker mentioned this – that the adjudicator may not only allow a progress payment, with significant consequences for the party who has to pay, but they may disallow a progress payment claim. 

So it cannot be thought that it is only unhappy principals who may wish to complain about error in the process; unhappy contractors might also see themselves starved of their cash flow and wish to challenge the determination on the basis they might have more success in doing that speedily than proceeding with an ordinary civil claim in the ordinary way.

Can I then come to your Honour Justice Gageler’s question and it is our respectful submission that the effect of certiorari would be to quash the adjudication determination.  Obviously there is a distinction between quashing for jurisdictional error where, as I understand it, ordinarily it is said that certiorari goes almost as of right, and quashing for error on the face of the record, where there might be a degree of discretion.  Nonetheless, in our respectful submission – I will develop this later – the appropriate remedy is that the determination be quashed.  In our submission, the adjudicator is functus once they have completed their determination. 

GAGELER J:   How does that help the contractor?

MR WHITINGTON:   The contractor might not be unhappy with that.  That is the first point.  Secondly – and this is a point made ‑ ‑ ‑

GAGELER J:   He cannot get his money.

MR WHITINGTON:   No, but he can make another claim.  He can make another adjudication claim so that, under section 26, if an adjudicator fails to determine an application within the time allowed by section 21(3), which is a very short time – I am now reading from the South Australian Act.  Perhaps I can pause.  I should have said right at the beginning that there is no material difference for the purposes of these two appeals between the provisions of the South Australian Act, the Building and Construction Industry Security of Payment Act 2009 and the New South Wales equivalent. 

In the South Australian Act it is section 26(1)(b) that invites the application of subsection (2), and if the adjudication has not been determined in time the claimant may withdraw the application.  That then permits the claimant to make a further application.

BELL J:   But that is not the case that is posited, of a determination that is quashed.

MR WHITINGTON:   I cannot bring it to mind immediately now but there is some New South Wales authority that says that the effect of quashing would be that there is no determination, and therefore there is no determination in time.  If there is no determination in time, the claimant’s inhibition otherwise in the Act from bringing another claim in respect of the same subject matter does not apply, and another adjudication claim can be propounded.

GAGELER J:   That is very difficult on the language of section 26(1)(b).  The adjudicator has accepted the adjudication, and the adjudicator, on the scenario we are now discussing, has determined the application within jurisdiction within time, it is just that it has been subsequently quashed.

MR WHITINGTON:   Yes.  We say that the effect of quashing is to ‑ ‑ ‑

GAGELER J:   It is a notional failure to determine, is it?

MR WHITINGTON:   It is a notional failure but one that would avail the claimant under subsection (2).

NETTLE J:   But you do not accept that it would be a determination within jurisdiction, do you?  Do you not contend that it is beyond jurisdiction?

MR WHITINGTON:   I am not quite following your Honour, I am sorry, your Honour.

NETTLE J:   Justice Gageler just put to you that there would have been a determination within jurisdiction, which you acceded to.  I had understood you earlier on in your submissions to put, contrary to Mr Walker’s submissions, that any error of a kind that would be subject to certiorari for error of law on the face of the record would be a jurisdictional error, in your contention.

MR WHITINGTON:   No, with respect.  We say that there can be error of law on the face of the record which may, nonetheless, be within jurisdiction.  It depends on the nature of the error.

NETTLE J:   I see.

MR WHITINGTON:   But, nonetheless, in material respects that is errors that are material to the adjudication – that is, which materially affect the adjudication – are capable of going to jurisdiction and if they go to jurisdiction, then the adjudicator does not have the power to decide them wrongly.  So I thought I was answering Justice Gageler’s question on the assumption of an error of law on the face of the record on the assumption that it did not if you like, trespass the zone of jurisdiction and the question then was what is the result of quashing. 

Now, I started by saying one may have to have regard to the fact that there can be, if you like, a different rule for quashing in relation to jurisdictional error, as opposed to error on the face of the record, which is non‑jurisdictional, which might invite in the latter case a discretion.  But assuming there is quashing in either case we say that the adjudicator is functus for better or worse.  But that does not leave the claimant without an expeditious remedy and the claimant as well, in any event, can as well, under section 27, withdraw an adjudication application before it is determined.

Now, again, that begs the question that Justice Gageler has put to me and that is whether a determination which is erroneous for instance because it – a determination which has been quashed, amounts to a failure to determine or a non‑determination.  We, as I say, say it does and that therefore opens up for the claimant the opportunity of bringing a further claim.

NETTLE J:   You say that is supported by New South Wales authority?

MR WHITINGTON:   There is a case in New South Wales that I cannot bring to mind now and it is really only in one or two lines as I remember it.  But it is the effect that if the determination is quashed, in effect, it is tantamount to there being no determination made within time which therefore enables a claimant to pursue a further claim within subsection (2).

Now, there are only two further matters I need to deal with on the question of error of law on our appeal.  The first is perhaps one that this Court does not have to deal with and that is that the Full Court held that it was bound to follow the decision of the Court of Appeal in Probuild, unless it considered it was plainly wrong and it considered that it could not say Probuild was plainly wrong on the question of error of law on the face of the record and, therefore, despite the in principle reasons and in principle conclusion nonetheless followed Probuild.

KIEFEL CJ:   Do we need to revisit that?

MR WHITINGTON:   No.  All we need to say is that the proposition from Marlborough Gold Mines about intermediate courts of appeal following decisions in relation to uniform national legislation had in mind the Corporations Law legislation which was truly national under a co‑operative scheme and that that proposition does not apply in the sort of context we are dealing with.  This legislation is by no means national or uniform.

NETTLE J:   There is no material difference between the New South Wales Act and your Act?  You said there was no material difference between the two Acts.

MR WHITINGTON:   That is right.

NETTLE J:   So what is the point?

MR WHITINGTON:   The point is that the Full Court was wrong, in effect, to defer to the Court of Appeal.  It was quite entitled to say, as a matter of principle we have reached our own conclusion which differs from that in Probuild.

NETTLE J:   Because why would it do otherwise than follow the New South Wales Court of Appeal on an Act which is materially no different unless it thought that the New South Wales Court of Appeal was plainly wrong?

MR WHITINGTON:   There are a couple of aspects to that.  One is that the decision in Probuild came down while judgment was reserved in Maxcon in the Full Court.

NETTLE J:   Yes.

MR WHITINGTON:   The judgment in Maxcon was delivered only a few weeks later.  But, secondly, Justice McHugh said in a case that we cite in our written submissions that courts of a jurisdiction should not readily defer to courts of another jurisdiction in interpreting their own legislation, even though it might have counterpart provisions in that other jurisdiction.  In effect, it is a kind of abdication or abrogation of responsibility.

KIEFEL CJ:   Is this really an issue for us to determine?

MR WHITINGTON:   No, it is not.

KIEFEL CJ:   Why are we spending time on it?

MR WHITINGTON:   All right, I will move on.  The respondent makes a submission in paragraph 20 of their written submissions to the effect that the South Australian Act was passed in 2009 following the decision of the New South Wales Court of Appeal in Brodyn that, in effect, Brodyn held that the supervisory jurisdiction for error of law on the face of the record was excluded.  Therefore, there is a presumption that the South Australian Act – or the South Australian Parliament intended to follow the effect of Brodyn and, therefore, intended that judicial review not be available for – be not available for non‑jurisdictional error of law.

There are number of propositions we would want to make in answer – perhaps a preliminary proposition.  The first is that that presumption ordinarily is quite weak.  The second is that Justice Basten in Chase, at paragraphs 90 to 91, doubted whether Brodyn stood for that proposition anyway. But, thirdly, and perhaps conclusively, section 18 of the Acts Interpretation Act (SA) has a provision which provides a complete answer. I can provide a copy for the Court should it wish – it is short. It provides that:

The enactment or re‑enactment of a provision that has been construed in a particular manner (judicially or otherwise) in this State or elsewhere creates no presumption that Parliament has sanctioned or approved that construction.

Can I then turn to the matter of jurisdictional error?  The starting point is section 12 of the Act, for the purpose of this argument, and that is the so‑called “pay when paid” provision.  Obviously, it bears consideration as a provision in its entirety.  The definition of a “pay when paid” provision appears in subsection (2) and there are three limbs to that definition – limb (a), limb (b) and limb (c). 

The adjudicator rejected Mr Vadasz’s submission that paragraphs (a) and (b) applied and the issue in the courts below turn only on paragraph (c).  We submit that section 12 clearly operates in conjunction with section 8 and the effect of that is that if a retention provision is void, as a “pay when paid” provision, then the amount of a progress payment to which a contractor is entitled under section 8 is greater and if a retention provision is valid the entitlement will be the lesser.

Something was made to turn in this action on the submissions before the adjudicator and I need to take the Court to them.  The Court can find them in two places.  Conveniently perhaps the Court can find them in the Full Court reasons in the second appeal book and first of all at page 459.

KIEFEL CJ:   Paragraph?

MR WHITINGTON:   I am sorry, your Honours, at 458, it is paragraph 106.  That submission is reproduced in the appeal books in its original form at pages 90 to 91.  The Court will note the terms of the submission:

The retention provision make the payment of retention monies subject to the Respondent's performance under the Head Contract; specifically its procurement of a Certificate of Occupation upon its achievement of Practical Completion.

The relevant contractual terms are set out at the preceding page, 457, in paragraphs 100 through to 102 and the critical clause is clause 11(e) which is set out there, which picks up on Schedule E, item 8, which in short terms provides that retention moneys are to be released within a certain period after CFO is achieved, and then “CFO” is defined as:

the certificate of occupancy and any other Approval(s) required under Building Legislation which are required to enable the Works lawfully to be used for their respective purposes in accordance with the Principal’s Project Requirements -

There is then a definition of “Building Legislation”, as Justice Blue noted in his reasons elsewhere and at paragraph 103, it was common ground that the reference to “Building Legislation” here which included an inapposite reference to an Act, was intended to refer to all applicable building and planning legislation in South Australia, and then there is a definition of “Principal” and “Project Requirements”.

Now, I have taken the Court to Mr Vadasz’s submission.  I might have said Maxcon’s submission at paragraph 106 - I meant Mr Vadasz’s submission.  But the response from Maxcon is in paragraph 107, at the top of page 459, responding to that submission at paragraph 106:

The retention provisions do not refer to the need for satisfactory completion of any other contract or performance of particular conditions in another contract before payment is made, nor do the retention provisions even refer to any other contract.  The retention provisions, instead of making payment contingent or dependent on the operation of another contract, require payment when a specified number of days have passed after a particular independent event has occurred –

His Honour then sets out at paragraph 108 the adjudicator’s reasons in, if you like, in effect, arbitrating on that submission in response and critically it is at about line 40 and following:

The release of retention amounts revolves around the achievement of a certificate of occupancy (CFO).  CFO means under the contract, the certificate of occupancy and any other approval(s) required under building legislation which are required to enable the works wilfully –

that is meant to be “lawfully”:

to be used for their respective purposes in accordance with the Principal’s Project requirements.

Reference to and reliance upon contingencies (namely CFO) based upon the principle’s [sic] contractual project requirements under the head contract –

Now, the Court will note that there is then an apparent acceptance that there are certain requirements under the head contract:

certainly does makes [sic] the liability to pay retention money owing under the parties (sic) contract, contingent and dependent on the operation of another contract.

The retention provision makes the payment of retention monies subject to the respondent’s performance under the head contract; specifically its procurement of a certificate of occupation upon its achievement of practical completion.

Now, the primary judge held that the adjudicator fell into error in construing the retention provisions contrary to section 12(2)(c) in the absence of evidence of the head contract and that that was an error of law.  It was common ground that the head contract was not before the adjudicator and the only relevant assertion of the head contract was that which appears in the submission at paragraph 106.  In the Full Court, the court made something of Maxcon’s response at paragraph 107 at page 458.  Justice Blue said that:

Maxcon did not take issue with the factual allegations that Maxcon was obliged under the head contract to achieve practical completion and to procure a certificate of occupation thereupon. 

Now, that is literally true.  Maxcon did not take issue in that sense, but that does not make the allegation a matter of fact.  It simply means it was not dealt with.  The reasons then go on:

Maxcon’s submissions accepted that this was so, but contended that it was irrelevant. 

The effect of the Maxcon submission was that, taken at its highest, the Vadasz submission did not demonstrate that there was any ex facie connection between the two contracts, the subcontract and the head contract, and what is more, all it suggested was that there was some independent or exogenous event, CFO, that governed payment under the retention clause but that that did not make the retention provision dependent upon the operation of the head contract.

Now, that submission is, in effect, what the Full Court accepted.  The critical reasons of the Full Court in this respect are at paragraphs 109 through to 112.  His Honour Justice Blue, at paragraph 110 refers to the relevant legislation and he set that out at paragraphs 104 through to 105 and I will not stay with that but his ultimate reasoning was that it need not be, and indeed the legislation did not require, that the builder obtain a certificate of occupancy.  That was really a matter for the owner and it involved issues other than purely building issues and then finally the critical paragraph, at paragraph 112 where it is said that:

The mere fact that the Principal’s Project Requirements were to be ascertained from the head contract and the mere fact that the heard contract provided for Maxcon to construct the building in accordance with those requirements and achieve practical completion –

If you pause there and turn back to the adjudicator’s reasons at page 459 at about line 50, his Honour is echoing that finding of the adjudicator.  Justice Blue then goes on:

whereupon a certificate of occupancy could be issued did not render release of the retention sum contingent of dependent on the operation of the head contract.  The retention provisions of the Contract made payment of the retention sum contingent on an independent event which was exogenous to both the Contract and the head contract.

Now, we say that, first of all, that is the critical error in the adjudicator’s reasons which have been identified.

GAGELER J:   So, can you just explain the nature of the error?  Is it an error in the construction of the contract, is it an error in the construction of section 12(2)(c)?  Is it an error in linking the two by way of characterisation?  Exactly what sort of error is it?

MR WHITINGTON:   We say all three, with respect, your Honour.  Justice Blue in two places characterised it as an error in the construction of the contract.  In another place he appears also to suggest it might involve the construction of section 12(2)(c).  Justice Hinton in dissent considered it was an error, or involved an application and an erroneous application of section 12(2)(c). 

KIEFEL CJ:   I think Justice Hinton said section 12(2)(c) determined the ambit of the adjudicator’s power.

MR WHITINGTON:   Yes, that becomes the critical distinction between Justice Blue and Justice Hinton because, if I can step ahead, Justice Blue characterises section 12 as a mere ordinary provision of substantive law which is only in this Act, he says, by happenstance.  He says it could have been in any other Act.  Now, in a sense, we accept that; that is right in one sense in that section 12 has an operation of avoiding “pay when paid” provisions, independently of any adjudication.  So, it has an operation standing outside an adjudication.

Nonetheless, it is in this legislation and as Justice Hinton observes, it has a significant operation in conjunction with section 8 because if the adjudicator wrongly determines that a provision is a “pay when paid” provision, then he can order more which is what happened here, according to Justice Hinton.  And he says that goes to a question of his power to make an order for a progress payment.  Therefore, by either wrongly interpreting the retention clause or wrongly applying section 12, or a combination of the two, the adjudicator has acted in excess of jurisdiction and committed a jurisdictional error.

BELL J:   Does that reasoning apply to any error of interpretation of the contract that leads to a determination of a payment that is incorrect?

MR WHITINGTON:   Potentially, yes.  Potentially, yes.  But, there are two answers to that.  One is a broad answer, that if the interpretation is wrong and therefore it is outside section 22 which requires the adjudicator to have regard to the terms of the contract – and we say correctly – and he wrongly interprets the contract and as a result of that it is material to his adjudication he awards more, then that is a jurisdictional error.  And, I will explain further what “jurisdictional error” means in this context.  That is the broader answer.

GAGELER J:   If you are going to put it at that level, then you are going back to an argument you put to the Court of Appeal, and lost, from which you have not appealed to this Court.

MR WHITINGTON:   Not quite.  What we say is that – I was really answering Justice Bell’s question – if it is not any error but an error – the first argument that Justice Blue addresses that we put to the Full Court and which we have not appealed from – was the effect that any error of law ‑ ‑ ‑

GAGELER J:   Is jurisdictional.

MR WHITINGTON:   ‑ ‑ ‑ is jurisdictional.  The narrower argument is that if it is an error of law which affects the exercise of the power to make the determination, therefore the order for money, then there has been an extension beyond – if I might put it this way – the proper zone of power and the error is jurisdictional.

GAGELER J:   So, if it is a material error of law, then it is jurisdictional.

MR WHITINGTON:   It goes to the adjudicator’s power to make a determination for an amount of money.

GAGELER J:   If the amount of money determined would be different but for the error of law ‑ ‑ ‑

MR WHITINGTON:   Correct.

GAGELER J:   ‑ ‑ ‑ it is a jurisdictional error.

MR WHITINGTON:   Correct.

GAGELER J:   Is that right?

MR WHITINGTON:   Yes.

GAGELER J:   Is there any other answer to Justice Bell’s argument?

MR WHITINGTON:   Yes, there is a further answer, a narrower answer, again, and that is that if the error of law is an error in the construction of section 12, then it is even more closely a case of exceeding the limits of jurisdiction because section 12 prescribes the nature and extent of a “pay when paid” provision and, therefore, it determines the nature and extent of entitlement under section 8.  So, even if it might be said that another kind of error which led to an excess payment was not in excess of jurisdiction, an error in the application or interpretation of section 12 is.

GAGELER J:   How?

MR WHITINGTON:   Yes.

GAGELER J:   You say you relate it to section 8?

MR WHITINGTON:   Yes.

GAGELER J:   There is a reference date quite independently of the interpretation of section 12.

MR WHITINGTON:   We are not here concerned with a reference date.

GAGELER J:   No.  So, that is obviously jurisdictional.

MR WHITINGTON:   Yes, yes.

GAGELER J:   You need a preference date.

MR WHITINGTON:   Yes, yes.

GAGELER J:   What is it that makes an error in relation to section 12 ‑ ‑ ‑

MR WHITINGTON:   The adjudicator has a power to award a progress payment entitlement under section 8.  The entitlement of someone who has a contractual entitlement is determined in accordance with that contractual entitlement.  If they do not have a contractual entitlement then the Act provides them with an entitlement.  You have to read section 8 in that respect in conjunction with section 9.

This was a contractual case, so the entitlement was confined by the contract.  Prima facie the entitlement was to, let us say, $100, less $10 retention, unless the provision for $10 retention was void under section 12.  The adjudicator was entitled to determine the right to a progress payment in the amount of the progress payment pursuant to section 22, which required him to have regard to the contract, the terms of the contract and the Act.  If he misconstrued or misapplied section 12 and thereby awarded too much, he has awarded more than he was entitled to award.

GAGELER J:   It sounds to me like the argument you lost and did not appeal from.

MR WHITINGTON:   With respect, I do not think it is.  It is the second‑string argument that we lost, it is not the first argument we lost, and it comes under ground 3 of the appeal.  But to be clear about it, for the adjudicator to determine that a provision was a “pay when paid” provision in the way he did, and having regard to the error identified at paragraph 112, then implicitly he has found that the provision was one that was contingent or dependent on the operation of another contract.  Now, of course that is capable of involving factual error but it is also capable of involving an error in construction as to the meaning of the operation of another contract. 

KIEFEL CJ:   Do you adopt Justice Hinton’s approach at all?

MR WHITINGTON:   We do, yes.

KIEFEL CJ:   You do not seem to be relying upon it.

MR WHITINGTON:   I am sorry.

KIEFEL CJ:   Your argument does not seem to reflect his Honour’s reasoning.

MR WHITINGTON:   I was going to come to it, but I thought – well, I hope it does.

KIEFEL CJ:   Is this an alternative argument?

MR WHITINGTON:   No, it is intended to be consistent with his reasoning; that is, I thought his reasoning was to the effect that section 12, properly construed, sought, in conjunction with section 8, to confine the power of the adjudicator to award an amount of progress payments.  If the adjudicator got that wrong, he had acted without jurisdiction.

KIEFEL CJ:   Is the starting point of his Honour’s reasoning that section 12 alters the contractual rights of the parties?

MR WHITINGTON:   Yes.

KIEFEL CJ:   And creates new rights?

MR WHITINGTON:  Yes, it is, and Justice Blue says that in effect that is mere happenstance that that provision could have been in the substantive law elsewhere.  Justice Hinton takes the approach that, notwithstanding that, it nonetheless confines the power of the adjudicator to award an amount of money.  There is another string, if you like, to Justice Hinton’s bow which I was going to come to, and that is another way of coming at jurisdictional error, a broader way through the decision in Craig.  Can I perhaps conveniently turn up the passage in Craig that we would rely on?

KIEFEL CJ:   Is it the passage to which Justice Hinton refers?

MR WHITINGTON:  Yes.  If I could address it this way, if the Court were to turn to page 462 of the second appeal book in paragraph 115, there is a proposition there from this Court in Craig’s Case.  It comes from page 179 of the Commonwealth Law Reports.  It is in the middle of the page.  It starts:

If such an administrative tribunal falls into an error ‑

Now, that invokes a broad test of jurisdictional error.  Justice Blue referred to it there and he also reproduces that passage again in paragraph 123.  But the starting point for his analysis is at paragraph 129, at least relevantly for our purposes.  In paragraph 129 ‑ ‑ ‑

GAGELER J:   The reference to “such an administrative tribunal” in the context of Craig is to an administrative tribunal with no jurisdiction to determine questions of law.

MR WHITINGTON:  Yes, and as well – well, no, with respect, one has to go to the preceding paragraph and I was going to draw attention to that.  It starts:

At least in the absence of a contrary intent –

This is at page 462.

GAGELER J:   Yes.  Then there is a reference to Racal Developments, you see.

MR WHITINGTON:  Yes.

GAGELER J:   Or Racal Communications.

MR WHITINGTON:  Yes.

GAGELER J:   The quote from Racal is really quite important, because it is saying there is a presumption against conferring on an administrative body the ability to determine the question of law, and it is in that context that the next paragraph continues.

MR WHITINGTON:  Well, I thought that there were three important strands to this.  The first is that there must not be a contrary intent, and I was going to come to that.  The second is that the Court is talking about an administrative tribunal, and the third strand is that the tribunal not so much lacks authority to make determinations of law, but to do so authoritatively.  In other words, it does not have a jurisdiction to go wrong.  Then, there follows:

If such an administrative tribunal falls into an error –

et cetera, and that is applying a test to an administrative tribunal, absent a contrary intent, which has the capacity to make decisions of law, but not wrong decisions of law.

GAGELER J:   But at this point of your argument we are at the point of accepting that this tribunal, the adjudicator, has been given jurisdiction or authority to make wrong decisions of law and you are saying, but not this decision.

MR WHITINGTON:   No.  Our principal proposition is that he does not have jurisdiction authoritatively to make wrong decisions – decisions of law wrongly.

GAGELER J:   Any error of law in the construction of a contract is a jurisdictional error.

MR WHITINGTON:   That is the highest submission.  Below that there is another submission that says if it is an error of law that is material to his adjudication, and there is a third submission and that is if it is an error of law material to adjudication which in turn affects his very power to make an award.  Now, if I can put that last proposition to one side for a moment and focus on the second proposition – that is, that the adjudicator might have had a power to decide a question of law, but he did not have a power to decide a question of law wrongly, at least if it was material to his decision.

GAGELER J:   If it made a difference to the amount.

MR WHITINGTON:   Made a difference to the outcome – well, the amount that it could be, the outcome at another way.  Now, I wanted to focus on the introductory qualification of that proposition, at least in the absence of the contrary intent.  Justice Blue seems to essay that there might be two indications of a contrary intent.  This adjudicator might have a role in the nature of a judicial role or, alternatively, the so‑called scheme of the Act might imbue the adjudicator with the power not only to make decisions of law but to make them wrongly, and pause there. 

The Court has been directed to the scheme of the Act but, put succinctly, Justice Blue had in mind two elements of the scheme:  one, that it provided for quick and summary determination; and secondly, that the determination was interim by virtue of section 32.  He found either in the fact that he considered this to be a court‑like body, or in the scheme of the Act or both, it is not clear, an implication that the adjudicator not only had jurisdiction to decide material questions of law but to decide them wrongly, and it is our respectful submission that he was wrong to do so.  Justice Hinton, in effect, disagreed on two bases, but I simply wanted to direct the Court to his starting point at paragraph 129, where he says:

It is of the essence of the role of the adjudicator, just like an arbitrator or a court –

Now, we would simply interpolate that the Act does not provide that the adjudicator have any particular qualifications, and you see that in section 18, it is left to regulations. There are regulations. We do not seek to rely on them to interpret the Act, but under the regulations the adjudicator essentially is anyone with quite minimal building qualifications. It is not necessary that the adjudicator have any legal qualifications. And so we submit that his Honour Justice Blue fell in error at the start of his reasoning by equating the role of the adjudicator with that of the court.

He then made his ultimate conclusion, at paragraphs 145 to 146.  It might be thought that in addressing the matters he does in those paragraphs he was harking back to the test in Craig that I pointed the Court to at page 462 – or a tribunal where otherwise there is no intention of rendering the decision immune from review.  Or he might have been pointing to a passage he quoted from this Court’s decision in Kirk at page 471, in paragraph 140, where the Court is dealing with the ambit of jurisdictional error of an inferior court and, obviously, there are differences.  His reasoning at paragraphs 145 and 146 appears more consonant with the test from Kirk for jurisdictional error by a court than it is a test from Craig for jurisdictional error by an administrative tribunal.

KIEFEL CJ:   Mr Whitington, do you agree with his Honour Justice Blue’s statement at paragraph 145 that, essentially, the adjudicator misconstrued the definition of “CFO” in the contract?  Is that the essential error?

MR WHITINGTON:   In Justice Blue’s analysis or the Full Court’s analysis ‑ ‑ ‑

KIEFEL CJ:   No.  Do you agree with that analysis?

MR WHITINGTON:   We say, first of all, he was in error in making a finding without the evidence.  But put that to one side, we say that the analysis turns on the error identified at paragraph 112 and that that error ‑ ‑ ‑

KIEFEL CJ:   I am sorry, you might have misunderstood my question.  Is Justice Blue, at paragraph 145, saying essentially the adjudicator misconstrued the definition of “CFO” in the contract?

MR WHITINGTON:   He is.

KIEFEL CJ:   Do you agree with that?

MR WHITINGTON:   I am sorry to give a convoluted answer, but yes we do agree with that.  But we say it is more than that.  He not only misconstrued the definition of “CFO” but, having done that, he also necessarily misapplied section 12 and, arguably, misconstrued section 12 in that application.

So we agree with what Justice Blue says but only as far as it goes.  And Justice Blue then seeks to dismiss section 12 by saying, in any event, it is a mere provision of the substantive law that could have been in any enactment.  And by that he appears to be saying, in the event that the adjudicator did misunderstand section 12, that is not a matter that goes to his power to decide.

KIEFEL CJ:   Forgive me, how did the adjudicator apply section 12?

MR WHITINGTON:   Well, not very clearly.

KIEFEL CJ:   I am reading from the conclusion at paragraph 108 where the adjudicator says:

that clause 11 and schedule E [relevantly] . . . is a ‘pay when paid’ provision, and therefore in breach of section 12(2)(c) –

What does that mean?

MR WHITINGTON:   Well, with great respect, it is opaque.  One has to read things into it.  That is why I was in difficulty in answer your Honour’s question directly.  We agree that he appears to have misconstrued the provision but also involved in that reading is really a conclusion that on his construction the provision goes to the operation of another contract being the head contract.

KIEFEL CJ:   That is the parties taking from section 12(2)(c).

MR WHITINGTON:   Exactly, yes.

KIEFEL CJ:   That is the only use he has made of section 12(2)(c)?

MR WHITINGTON:   Yes.  All of this is very short in summary.  I can give the Court the reference in the principal adjudication.  There are only about five paragraphs where he deals with this.  Perhaps I should take the Court to it very quickly.  If the Court will take up the first volume of the appeal books and the adjudicator’s reasons are at 269, and at 278 he starts dealing with retention.  He dismisses arguments under section 12(2)(a) and 12(2)(b) and at paragraph 99, he comes to 12(2)(c) and his reasoning is from paragraphs 99 through to 106.  It is very short and cryptic.

KIEFEL CJ:   Well, it is an issue arising under 12(2)(c).  Are you saying that he has made an error in his understanding of 12(2)(c)?

MR WHITINGTON:   We say that is to be implied, yes, yes.  The notion of ‑ ‑ ‑

KIEFEL CJ:   What is the error?

MR WHITINGTON:   Well, the error is to say that even if it might be said that there was an obligation under the head contract for Maxcon to achieve the principal’s project requirements and to achieve practical completion and those things, as the Full Court said, were to ground certificate for occupancy, even on that basis, to conclude that thereby a provision in the subcontract, that payment was dependent upon CFO, an event outside the head contract, according to the Full Court, to conclude that payment of the retention sum was dependent upon CFO in those circumstances involves some assumption about the operation of the head contract which we say is in error.

KIEFEL CJ:   What is the adjudicator’s misunderstanding about 12(2)(c)?

MR WHITINGTON:   To say that preconditions to the obtaining by a third party of a certificate of occupancy from a fourth party, to say that those preconditions appear in the head contract and that as a result when the payment of the retention moneys is made to turn on that external event, CFO, and thereby to say that the payment of those retention moneys turns on the operation of the head contract, is necessarily an error as to the concept of operation of the head contract.  The head ‑ ‑ ‑

KIEFEL CJ:   You have not got very close to 12(2)(c) in that summary.

MR WHITINGTON:   Well, 12(2)(c) uses the expression “contingent or dependent on . . . another contract” – “the operation of another contract”, I am sorry. 

KIEFEL CJ:   Yes.  And, that is the issue he thought he was determining?

MR WHITINGTON:   Yes.

KIEFEL CJ:   Does it go any further than that, that he got that wrong, he got the question wrong?

MR WHITINGTON:   With great respect, that is another way of approaching it and if one approaches it through Craig, then leaving aside any question of a limit on his power through section 12, one can say if the Craig test applies, that he asked himself the wrong question.

KIEFEL CJ:   What is his power under section 12?

MR WHITINGTON:   His power under section 12 – well, his power is under ‑ ‑ ‑

KIEFEL CJ:   Section 8.

MR WHITINGTON:   His power is really under section 22, but it is to award a progress payment within the limits of section 8 as possibly confined by section 12.  So, in other words, he does not have a power to order a progress payment to which a party is not entitled at law.

KIEFEL CJ:   Yes, I see.

GAGELER J:   What was the wrong question?

MR WHITINGTON:   The wrong question was – and/or the wrong conclusion – but the wrong question was, if there is a provision, or assuming there is a provision in the head contract that says the head contractor must, in some way, attend to the principal’s project requirements and the head contractor must achieve practical completion, does that thereby necessarily mean that the head contractor is, if you like, responsible for obtaining CFO under the head contract?  That is, in effect, the way the question can be couched.  That is really the effect of the Full Court’s conclusion about the error at paragraph 112.  So, there is a question of a wrong question, a wrong issue, or a wrong conclusion.

If one were to apply Craig in the Craig test and say that – perhaps if I go back a stage – my learned junior has reminded me that another way of putting it is that he assumed that CFO will be dependent on the operation of the head contract if, in fact, CFO is an independent event, or when CFO is an independent event independent of, or exogenous to the head contract.

The point I wanted to make was if one applies the Craig test to an administrative tribunal on the assumption that the supervisory jurisdiction has not otherwise been excluded and that the adjudicator is not a court, then that test would indicate that the adjudicator has fallen into administrative error.  That is the effect of the alternative approach of Justice Hinton at paragraphs 282 and 283 at page 512.

The first approach, that is treating section 12 as setting a limit on the adjudicator’s power, is best articulated at paragraphs 277 and 279, and as well at the end of 280.  Now, I think I have probably said all I need say on the question of jurisdictional error.  Can I briefly turn to the question of relief?  We say that the approach of Justice Hinton should be preferred.  Justice Blue at paragraph 222 suggested that there could be a partial quashing.  In the second sentence he says:

When what appears to be a single decision upon analysis is divisible into two separate elements such that as a matter of substance (rather than form) there are really two decisions, the jurisdictional error affects one element but not the other element and the two elements are independent, the element affected by jurisdictional error can be severed from the other element. 

Now, we say that is correct as far as it goes but it depends upon there being a truly divisible decision – that is, in effect, in substance more than one decision or more than one source of power creating different decisions.  We say the authorities that he cites from paragraphs 223 to 226 do not stand for any other proposition – that is, they are simply confirmation that if there are distinct decisions they can be, if you like, severed and separately quashed. 

But otherwise, consistently with the nature of the remedy, the entire decision should be quashed and the court has no power to amend or remake a decision.  Now, if I need any authority for that, the Court can see at page 474, very quickly, in a passage that Justice Blue quotes from Craig’s Case.  It is the passage at paragraph 150, and we say the effect of that passage is that if certiorari is to go it can only go to quash an entire decision. 

We say that is reinforced in this case by section 22 which requires a single determination and it is irrelevant that that determination might arithmetically be comprised of different elements.  The fact is there is only one determination.  Justice Blue cited a passage from Justice Palmer’s decision in Multiplex at paragraph 232, which we respectfully would say is the correct position, and it is really that passage starting at the bottom of page 497, “It seems to me”, et cetera. 

At 233, Justice Blue then notes that that decision has been followed in various first instance decisions.  He goes on to say:

All of these cases involved jurisdictional error and none involved mere error of law on the face of the record.

We say when you consider those decisions it is apparent that nothing was made to turn in those cases on the nature of the review.  What was critical in

those cases was the fact that there was one indivisible decision and that was what had to be quashed.  Despite that, in paragraph 234, Justice Blue goes on to say that, in his view, even a decision affected by jurisdictional error can be partially quashed.  He then goes on to say:

An error of law on the face of the record differs fundamentally from a jurisdictional error. 

He puts that on the basis of a passage from Re McBain, and the critical passage is at the top of page 499.  It involves the proposition that jurisdictional error involves an unlawful exercise of power, whereas error on the face of the record involves a lawful exercise but mistaken.  We say that, true though that that is, that is no justification for finding that the court can, in effect, amend the order.

The respondent then makes an argument concerning the Supreme Court Rules and section 13 of the Acts Interpretation Act. We say that the Supreme Court Rules do not affect the underlying jurisdiction which is in section 17 of the Supreme Court Act and it simply involves the inherentness of the ancient jurisdiction of various English courts, and that has been regarded as attracting the prerogative jurisdiction.  The rules do not alter that either, if indeed they could.

The respondent then invokes section 13 of the Acts Interpretation Act, but that is a provision about statutory or other instruments being able to be read down so as not to exceed power.  In our respectful submission, an adjudication is not a statutory or other instrument within the concepts of that section because that section, when you read it in its entirety, is plainly speaking to instruments which speak at large, not something like an adjudication which merely speaks inter partes. 

In our respectful submission, the appeal should be allowed and the determination should be quashed.  The question of any consequential orders based upon the grant of certiorari quashing the determination in its entirety, in our respectful submission, should be remitted to the Full Court because there are some quite complicated issues involved in payments which have been made into a suitors fund, where money still stands, and payments which have been made out of a suitors fund, and then possible orders in the nature of restitution and rather than tax this Court with the suggestion that that be worked out here, it is our respectful submission that that is an appropriate matter for a remitter.  They are our submissions, if the Court pleases.

KIEFEL CJ:   Yes, Mr Christie.

MR CHRISTIE:   May it please the Court.  Your Honours, I propose to deal first with the issue common to both appeals and I shall do so through the prism of the Probuild appeal and I shall then turn to the specific issues that arise in the Maxcon appeal. 

We submit that the New South Wales Court of Appeal was correct in concluding that relief was unavailable in the nature of certiorari to quash an adjudicator’s determination other than on the grounds of jurisdictional error.  We submit that Parliament never intended that an order in the nature of certiorari could be made quashing an adjudicator’s determination for mere error of law on the face of the record. 

Our submissions are founded in the process of statutory construction.  This case is ultimately one concerning the interpretation of statutes, attempting to see whether they can live together in the case of two statutes of the same Parliament.  My learned friend, Mr Walker, commenced by taking your Honours to Hockey v Yelland to the passage where the Chief Justice said that clear words are required to limit or curtailed the Court’s power to issue certiorari in non‑jurisdictional error of law.

He conceded or acknowledged, I should say, that the necessity for clear words did not require express words and, indeed, when one looks at all of the recent or subsequent authorities, one sees language such as - if I could take your Honours briefly to S157, I have given the reference in our written submissions, where this Court said:

it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies.

We respectfully submit that in this case it does necessarily imply but how can one determine whether or not it necessarily implies without embarking on a process of statutory construction. 

This Court in Commissioner of Police v Eaton which is a case I will be taking your Honours to in a moment, held that when one is attempting to reconcile statutes of the same Parliament, one has recourse to all statutory indications.  All principles of statutory interpretation are to be employed in the reconciliation process and if reconciliation is not possible, all principles of statutory interpretation are to be considered in determining whether, in this case, the Security of Payment Act, has limited the Supreme Court’s powers under section 69 and that is something absent from both appellants’ submissions. 

Both appellants adopt the view that one needs clear words - there are no clear words and that is the end of the story. Well, with great respect to them, if one adopts the modern approach which asks the question are there express words or does the latter statute by necessary implication reduce the power of the court under the previous statute one needs to go through the whole process of statutory interpretation and that includes looking at the objects, context, as your Honour Justice Gordon suggested.  It requires looking at certain principles and maxims, and this will come up when I take your Honours to Butler v Attorney‑General (Vic).

So, with great respect, it is not simply a matter of saying there are no clear words and the suggestion seems to be implicitly there are no express words, although Mr Walker acknowledged that that was not required. One must embark on a process of looking at the Security of Payment Act in its entirety in terms of its objects and purpose and text and looking at that as against section 69 of the Supreme Court Act. 

Can I just begin with four basic propositions, your Honours?  The first, as the Court of Appeal held is this.  The remedial nature of the Security of Payment Act is clear and the Court of Appeal referred to the judgment of your Honour Justice Keane in the RJ Neller Case, and in a passage quoted by the Court of Appeal at paragraph 66 your Honour noted that the Act provides for a “speedy and effective means of ensuring cash flow to builders”.  As your Honour also noted:

the legislature [appreciated] that an assured cash flow is essential to the commercial survival of builders –

and conversely, delayed payment may result in the builder being “ruined”.  The second proposition, again adopted by the Court of Appeal, is that an integral part of that “speedy and effective process” is, to use the language of the Court of Appeal, the “coherent, expeditious and self‑contained scheme for resolving disputes with respect to payment claims.”  The third proposition, again adopted by the Court of Appeal, is that that coherent, expeditious and self‑contained procedure would be undermined to a significant extent if a determination were to be subject for judicial review on the basis of non‑jurisdictional error of law.

GAGELER J:   Or any error of law.

MR CHRISTIE:   I accept that, your Honour.  Fourthly, we submit the Parliament did not intend that that coherent, expeditious and self‑contained scheme be undermined in any way notwithstanding section 69.  Quite opposite is the case, in our respectful submission.  Our learned friends’ approach, if adopted, would represent a very substantial change to the way in which this legislation operates, and it would do so in a way harmful to the interests of the very class of persons whom this legislation is aimed to protect and assist, and that is tradesmen, tradeswomen, small subcontractors, sole traders like Mr Vadasz and small family businesses like Shade Systems. 

It would be harmful to their interests, your Honours, because it would undermine three cardinal goals of the Act, and they are speed, informality and, related to informality, keeping costs to an absolute minimum.  We respectfully submit that a small subcontractor would be discouraged from pursuing a progress claim under this Act through to adjudication, itself not a process free from cost, if there were the likelihood that a well‑cashed head contractor would take every legal point in judicial review proceedings. 

The Maxcon Case itself serves as a salutary example of what I am referring to.  This is a case where there have been three decisions of single judges in the Supreme Court of South Australia, one final decision, two interlocutory decisions, a decision of the Full Bench, even though the amount in dispute is $60,000, and, in our respectful submission, Parliament did not intend that to occur. 

Could I take your Honours to the Act itself?  This Court summarised the scheme in Southern Han Breakfast Point v Lewence Constructions last year and I only wish to take your Honours to certain specific provisions relevant to the Probuild appeal.  Can I commence by taking your Honours, firstly, to the objects and in addition to noting the object in section 3(3)(d), which your Honour Justice Keane referred to, we would also like to emphasise paragraph (1) of section (3):

The object of this Act is to ensure –

and then going to the third line:

and is able to recover, progress payments –

Can I then take your Honours to other provisions which really highlight the three cardinal goals of this Act which I refer to?  The first is speed.  The Act requires the parties to make any submissions in an extremely tight timeframe and that is not conducive to high quality submissions necessarily.  An adjudicator is required to make his or her determination within an extremely strict time limitation.  If one goes to section 21, your Honours will see section 21(3) says:

Subject to subsections (1) and (2), an adjudicator is to determine an adjudication application as expeditiously as possible and, in any case:

(a)within 10 business days after the date on which the adjudicator notified the claimant and the respondent as to his or her acceptance –

In other words, within 10 days of agreeing to be the adjudicator, the adjudicator must make his or her determination.  But in fact the time in practice may be much limited because by reason of the operation of section 20(1) the adjudicator may only receive the respondent’s submissions five days into that 10 day period which may leave the adjudicator effectively with five days to weigh the competing submissions, documents, statutory declarations, perhaps, contractual provisions, disputes about whether something is a variation or not – one could go on. 

So it is not surprising that Professor Aronson and his co‑authors have referred to this scheme as containing a brutally fast time line and that is at page 1070 of judicial review.  It is not surprising that the courts have on numerous occasions used the metaphor of “pressure cooker” to describe the circumstances in which adjudicators are required to operate.  According to our researches, we are unable to find any legislative scheme even remotely like this in terms of the strict time limitations and the pressures on decision‑makers to deal with what may be difficult claims to adjudicate upon. 

So, speed is a fundamental feature of the adjudication process.  So, too, is informality.  That was noted by his Honour Justice Handley in the Falgat decision, which I think is the decision your Honour Justice Gordon was referring to, and that is manifested in this way.  First, matters are dealt with effectively on the papers. 

Can I take your Honours to section 21(4).  Your Honours will see that in section 21(4)(c) the adjudicator “may call a conference of the parties”.  But your Honours will note in subsection (4A) legal representation is not permitted at such a conference.  That really enforces the purpose of the Act to retain a high degree of informality.  That informality is one of the main reasons why costs are kept to an absolute minimum. 

Another feature of the Act which bears emphasis, your Honours, is the limited circumstances in which a judgment arising from an adjudication determination can be challenged.  If I can take your Honours to section 24.  Section 24(1)(a) provides that if the respondent fails to pay the adjudicated amount, the claimant may obtain or seek to obtain an adjudication certificate.  If one goes to section 25(1):

An adjudication certificate may be filed as a judgment for a debt –

and then section 25(4) recognises that the respondent may commence proceedings to have that judgment set aside.  But the section severely limits the respondent’s rights to do so.  So your Honours will see, for instance, in section 25(4)(a), that the respondent:

is not, in those proceedings, entitled:

. . . 

(iii)     to challenge the adjudicator’s determination –

If there has been a jurisdictional error, there is no adjudicator’s determination, but in all other cases there is a clear legislative intention here not to permit any challenge to an adjudication determination once the claimant has adopted the mechanical step of applying for a certificate and filing with the court. 

That certificate may be filed in any court.  It may be in a Local Court or the District Court.  But on our friend’s case, no matter how small the matter – a tradesman files a certificate to $10,000 – Parliament intended that the party required to pay the money can commence Supreme Court proceedings and seek to quash that determination.  In our respectful submission, when one looks at the overall statutory scheme, that is a most unlikely intention to impute to Parliament.

Finally, your Honours, could I take your Honours to section 32, which your Honours are familiar with because although section 25(4) severely limits the rights of the party paying to challenge the determination, section 32 does ensure that that party’s rights are preserved.  So against that background, your Honour, can I take your Honours to the issue in this appeal and as I said in opening, in our respectful submission, whether or not the Supreme Court has the power to quash a determination for non‑jurisdictional error turns on construing the two statutes. 

The parties seem to be in agreement on that, but they seem to disagree on the relevant principles of statutory construction and how they apply.  Can we just make three propositions which, in large measure, I do not think are in dispute, although the first one may be, based on what Mr Walker had to say. 

First, we submit that the jurisdiction or power to make an order in the nature of certiorari derives from statute. In New South Wales it has its source in section 69 and in South Australia it has its source in section 35 of the Supreme Court Act.  Secondly, as this Court held in Kirk the Supreme Court’s power or jurisdiction to issue certiorari for non‑jurisdictional error of law is not constitutionally entrenched and your Honours will find the reference in Kirk at paragraph 100.

Thirdly, we submit that ultimately, to quote the Chief Justice in Ferdinands’ Case, the problem is one of statutory interpretation whenever one has two statutes which seem to compete, being two statutes of the same legislature.

GAGELER J:   Is it really? Section 69(5) of the Supreme Court Act really seems to say, look, this extension of the concept of error of law on the face of the record does not affect the ordinary question of jurisdiction being ousted or not ousted according to the ordinary construction of particular legislation.  So, if you find on the face of the Building and Construction Industry Security of Payment Act that it is meant to authorise a legally erroneous determination, on one view that is enough to oust the jurisdiction of the Supreme Court to grant this remedy, and that is what section 69(5) is really allowing for. So it is not a clash of statutes; it is just a question of ‑ ‑ ‑

MR CHRISTIE: If your Honour is suggesting that section 69(5) contemplates that there may be another statutory provision which departs from the ordinary course, then we embrace that submission, your Honour.

GAGELER J:   What I am saying is it is not really implied repeal.

MR CHRISTIE: The Court of Appeal held exactly as your Honour is putting it, but our alternative argument is that there is implied repeal, if I can put it that way, your Honour. On either view, one needs to adopt a process of statutory interpretation which is expressly contemplated as your Honour suggests, by section 69(5). So, our first submission is that the two statutes can live harmoniously for the reasons the Court of Appeal has stated. Section 69(5) contemplates that there may be statutes of the type your Honour has just referred to, and that is our primary submission.

But to the extent that they cannot live harmoniously, we respectfully submit that by necessary implication, the Security of Payment Act has limited Parliament’s – has limited the Supreme Court’s powers under section 69.  But I wish to emphasise that is an alternative submission.

KIEFEL CJ:   Will you be dealing with the South Australian statute later when you deal with the specific features of the Maxcon matter?

MR CHRISTIE: Yes, I can deal with that now, your Honours. I do not think a different analysis really pertains in the case of the South Australian statute, section 35. It is couched obviously in different terms to section 69. But, in our respectful submission, Maxcon’s position is no stronger than Probuild’s case is. I will return to that when I deal with Maxcon, your Honour, on reflection.

KIEFEL CJ:   Okay.

MR CHRISTIE:   So, can I start with the harmonious operation of statutes, because the Court of Appeal itself posed the question before it as involving the quest for coherence between two statutes of the same legislature.  That is at paragraph 37 of the Court of Appeal’s decision.

In relation to that concept, can I take your Honours to the decision of this Court in Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1? Can I take your Honours to page 16 of the judgment and that is the judgment of your Honour the Chief Justice, your Honour Justice Bell and her Honour Justice Crennan and if your Honours turn to page 18, paragraph 45, your Honours deal with the issue of two Acts being read together and then on the fifth‑last line of page 18, your Honours referred to the advice of the Privy Council in Associated Minerals Consolidated Ltd v Wyong Shire Council and your Honours said this:

Lord Wilberforce pointed to several possible interpretations where the field of application of two related statutes is different, but where the later statute does not expressly repeal or override the earlier -

His Lordship said this:

“The problem is one of ascertaining the legislative intention:  is it to leave the earlier statute intact, with autonomous application to its own subject matter ‑ ‑ ‑

KIEFEL CJ:   But are these related statutes?

MR CHRISTIE:   These are separate statutes – two statutes of the same legislature.  His Lordship appears to have adopted a tripartite classification.  The first and third examples his Lordship gave were of statutes living harmoniously, and the second example his Lordship gave was one where they do not live harmoniously and they conflict.  If one goes to page 19, just above paragraph 47, the Court said:

That intention is to be extracted “from all available indications”. 

We rely on the principle of statutory interpretation that every attempt should first be made to reconcile competing statutes and that it is only where they are irreconcilable that they should be held to conflict.  We refer in our written submissions in particular to the judgment of your Honours Justice Nettle and Justice Gordon in Northern Australian Aboriginal Justice Agency v Northern Territory (2015) 256 CLR 569 at paragraph 227. In that judgment your Honours relied upon the judgment of Sir Wilfred Fullagar in Butler v Attorney-General, which I shall take your Honours to in a moment.

That process of reconciliation has also been the subject of Justice Gaudron’s decision in Saraswati, which we referred to in our written submissions.  Her Honour said:

there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other –

We do not think that those principles are in any way controversial.

GAGELER J:   Mr Christie, I am not quite sure what you are doing with this submission.  You accept that there is a general principle of construction to the effect that an established jurisdiction of the Supreme Court is not to be ousted other than by clear words or necessary indication.  Now you are going to a series of cases that are concerned with conflicting statutes.  Are you saying that it is the same principle of construction or an analogous principle of construction, or what?

MR CHRISTIE:   I am going to the first issue of harmonisation and asking whether the two statutes can live together.  I am not suggesting that by necessary implication the power of the Supreme Court has been ousted.  I am not suggesting there is an implied repeal, not at this stage.  The first submission is one of seeking to discern whether there is harmony between the two statutes.

GORDON J:   Mr Christie, is this directed at an ultimate submission that because the ultimate determination is deferred – a reference to 32(4), “they are living harmoniously”?  Is that the endplay? 

MR CHRISTIE:   That is part of the reason why we say they can live harmoniously, your Honour – if I can put it that way.

GAGELER J:   They could only live harmoniously by making the Building and Construction Industry Security of Payment Act prevail. 

MR CHRISTIE:   Correct, your Honour.  But her Honour in Saraswati suggested that one can characterise two statutes of living harmoniously when one is subject to the other.  There may be not a huge difference between saying they live harmoniously in the way your Honour has said and to say that there has been an implied repeal.

Can I take your Honours to Butler v Attorney‑General (1961) 106 CLR 268? Can I take your Honours to page 276? His Honour said, around the middle of the page starting with the words “But” – just below the middle of the page:

But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate.  It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other.  In other words it will commonly be found that the appropriate maxim is –

skipping the first maxim:

generalia specialibus non derogant.

We say this is such a case.  His Honour dissented but not on those grounds.  We respectfully submit that in determining whether the two statutes can be read harmoniously, for example, by reading one as being subject to the other, all relevant principles of statutory interpretation need to be considered – to use the language in Commissioner of Police v Eaton.  Parliament’s intention is to be extracted from all available indicators.

One of those is the generalia specialibus non derogant principle which we rely upon in these proceedings.  But there are others.  Firstly and primarily we submit it is necessary to look at the context, structure and objects of the Security of Payment Act.  Secondly, we rely on the principle of interpretation that Parliament will prefer a construction which promotes the purpose or objects of an Act.  Thirdly, we submit that remedial legislation should be read generously.

So, however one looks at this, in our respectful submission, if one adopts these primary maxims and principles of statutory interpretation, in our respectful submission, the Court of Appeal was entirely correct to conclude that section 69 was to be read subject to the Security of Payment Act, or, to put it in another way, section 69(5) contemplated an Act such as the Security of Payment Act acting in the way it does to oust the powers contained in section 69.

Can I take your Honours just back to Butler for a moment?  That was a case concerning two statutes of the Victorian Parliament.  The first statute gave preference in promotion to ex‑servicemen and the second statute governed appointments in the Victorian public service, and the question was whether the first statute really survived the second. 

Although Sir Wilfred Fullagar’s judgment is the most cited judgment, I would say, in my respectful submission, he did dissent ultimately on the final end result and if I could take your Honours to Sir Frank Kitto’s judgment, at page 280 his Honour said at around two‑thirds of the way down, just after the reference to Viscount Dunedin:

the question must be whether they could stand together, “live together” –

and then going to the next page at page 281 at about line 15, or two lines below reference to the Public Service Act, his Honour said:

the Act has every appearance of intending to cover the ground comprehensively –

We respectfully submit that that is another principle of statutory interpretation which assists our argument.  In this case, we respectfully submit that the security of payment has every appearance of it intending to cover the field comprehensively. 

KIEFEL CJ:   That might be a convenient time.  In relation to the amount of time necessary this afternoon, I think there was some discussion about whether there would be a need to extend the sitting time this afternoon.  How much longer will you be, Mr Christie?

MR CHRISTIE:   Your Honour, we have divided up our time.

KIEFEL CJ:   If we adjourned until 2.15, would all the parties be concluded by 4.15?

MR CHRISTIE:   I am not sure, your Honour, to be honest.  I mean, we arranged our time on the incorrect premise that we would be finishing at 1 o’clock and on the assumption that there was a 1.00 to 2.00 pm break, I estimated that I would finish just before 3.30 and that my friends would fill the rest of the time up.

KIEFEL CJ:   I see.  All right, well, we will proceed on that basis.

MR CHRISTIE:   May it please the Court.

KIEFEL CJ:   We will sit through till 1 o’clock.

MR CHRISTIE:   Thank you, your Honour.  Now, I have already taken your Honours to the legislation and I have emphasised, in our respectful submission, the importance of the context and objects of the Act.  That has been referred to in Southern Han Breakfast Point.  In paragraph [4] of the judgment, your Honours quoted from the second reading speech.  I do not think I need to take your Honours to that.  I think the remedial nature of this legislation is clear.  In fact, I might just take your Honours to Southern Han Breakfast Point (2016) 91 ALJR 233, being the only decision of this Court on this legislation. And I would ask your Honours to note at paragraph 4 where your Honours quoted from the second reading speech:

The Act was designed to ensure prompt payment and, for that purpose, the Act set up a unique form of adjudication of disputes . . . Parliament intended that a progress payment, on account, should be made promptly and that any disputes over the amount finally due should be decided separately.  The final determination could be by a court or by an agreed alternative dispute resolution procedure.  But meanwhile the claimant’s entitlement, if in dispute, would be decided on an interim basis by an adjudicator, and that interim entitlement would be paid.

Then there is reference to the Minister, Mr Iemma, and I would just ask your Honours to note the passage there to the critical importance of:

Cash flow is the lifeblood of the construction industry.

And the Court of Appeal made similar observations about the objects of the Act.  I would just ask your Honours to note the reference at paragraph 62 to Justice Handley’s judgment in Falgat and, in particular, to your Honour Justice Keane’s judgment in R J Neller.  And your Honours will find that in the judgment of the Court of Appeal in the appeal book, at the foot of page 125.  After stating that:

The remedial nature of the legislation is clear –

their Honours quote from the passage of your Honour’s judgment in R J Neller and I do not think I need to take your Honours to that.  Suffice to say that there is a strong and specific public policy discernable in the Act; it is to ensure “the commercial survival of builders”, as your Honour Justice Keane said.

But more than that, if one goes to the second reading speech, your Honours will note that the Act contemplates the severe consequences of non‑payment not just for tradesmen and subcontractors and tradeswomen but also for their families, and that is expressly referred to in the second reading speech. 

There is one feature of the Act which I wish to take your Honours to which I have not mentioned, and that is that there is no right of appeal.  As the Court of Appeal noted – this is clear from the second reading speech – Parliament expressly rejected the prospect of appeals from adjudicators’ decisions.  Their Honours dealt with this at appeal book page 111, at paragraph 27.

KIEFEL CJ:   I am sorry, what paragraph was that?

MR CHRISTIE:   It is paragraph 27 on appeal book 111.  Their Honours  noted:

It is clear from the second reading speech that the omission of any right of appeal was deliberate and was seen as consistent with the intention of the Security of Payment Act that there be a simple and expeditious procedure for ensuring that contractors in the industry obtained prompt payment of any progress payments under the contract.

Can I just take your Honours briefly to the second reading speech and to the relevant passage.  Can I ask your Honours to turn to page 107, left‑hand column, third‑last line:

The bill does not specifically provide for an appeal from an adjudicator’s decision.  The adjudicator’s decision is only an interim decision until the final amount due in respect of the payment claim is finally decided in legal proceedings or in a binding dispute resolution process.  This is the appeal.

Now, I pause to note technically of course, that is not correct but one understands exactly what Parliament means.  Then the Minister said:

Inserting by statute yet a further adjudication appeal process between the adjudicator’s interim decision and the final decision would be unnecessarily burdensome and costly for parties to construction contracts.

So, we respectfully submit, to use the language of your Honour Justice Gageler and your Honour Justice Keane in Lee v New South Wales Crime Commission in a passage we referred to in our written submissions that Parliament has made plain – I withdraw that.  Perhaps I might just take your Honours to that case.  It is Lee v New South Wales Crime Commission (2013) 251 CLR 196. Can I take your Honours to page 310? At paragraph 314, your Honours say this:

The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed.

Now, this is a slightly different point.  We are just making the point that the fact that Parliament has considered whether to have an appeal process and has decided not to have one is a relevant consideration.  We do not say it is determinative because we acknowledge that obtaining relief pursuant to section 69 is not in the nature of an appeal, but it is a relevant consideration for your Honours to take into account.

Your Honours, can I just return to a fundamental feature of the Act and it is what we describe as the statutory trade‑off inherent in this Act?  There is a trade‑off inherent in any scheme which requires submissions to be drafted extremely quickly and which requires adjudicators to make their decisions under intense pressure within extremely tight timeframes.  The price one pays is that the quality of adjudication determinations would not be as high as they would be if the decision‑maker had the time to deal with matters in a less time‑limited manner.

We respectfully submit that this is an inherent feature of the Act, it is not just an incidental feature of it, it is an inherent feature which Parliament must have been aware of.  Parliament was aware that any scheme which permitted or required an adjudicator to make a determination on potentially difficult legal and factual issues within five business days was likely to lead to what the cases on many occasions have referred to as “rough justice”. 

That statutory trade‑off, we respectfully submit, has been most succinctly and eloquently expressed recently by the Supreme Court of Singapore.  Can I just say something about Singapore?  They have an Act with exactly the same name.  That Act has been based on the New South Wales Act, according to their Supreme Court.  A recent decision of the Court of Appeal of Singapore, I think articulates our submission in ways which make it worthy of drawing to your Honours’ attention.  The case is Didwania v Hauslab Design and Build Pte Ltd [2017] 1 SLR 890. This case concerned the 18th progress claim by the builder. I think that is something worth noting because by their very definition, progress payments are normally one of a series of payments.

If our learned friends are correct, every single building contract which contemplates a series of progress claims has built into it the potential for multiple Supreme Court proceedings and, in our respectful submission, that is totally foreign to Parliament’s purpose.  If I can take your Honours to the judgment of the Chief Justice Sundaresh Menon, if your Honours go to page 900, his Honour observed that:

this abbreviated process of dispute resolution is a species of rough justice –

referring to a previous decision of the Singapore Court of Appeal, but I do think the term emanates from Australia.  Then his Honour said this:

But we tolerate this because it ensures that payments are made upfront.  Because cash flow is the life blood of those in the building and construction industry, timeous payment for work done or materials supplied ensures that the construction work will proceed with minimal disruption as far as this is possible.  Any shortcomings in the process is offset by the fact that the resultant decision only has temporary finality in that there remains the possibility of argument and reversal of the adjudicator’s determination after the construction project is completed in another more thorough and deliberate forum –

Then, might I ask your Honours to turn to page 903?  The Chief Justice also made this observation at paragraph 43, at the bottom of the page:

As we also observed in Grouteam at [40], in many construction disputes, the documents will be incomplete and messy and so will the case that is put forward. 

That is to the adjudicator, and we respectfully submit that that approach is entirely consistent with the approach reflected in the objects stated or quoted in Southern Han Breakfast Point and your Honour Justice Keane’s judgment in R J Neller.

GAGELER J:   Was this a judicial review case?

MR CHRISTIE:   I do not think it was, your Honour.  I think it was a jurisdiction case where there was a jurisdictional issue.

GAGELER J:   So do they have certiorari for error of law on the face of the record in Singapore?

MR CHRISTIE:   I do not know, your Honour.  I was not taking the case to your Honour ‑ ‑ ‑

KEANE J:   At page 891 it appears to be in the second and third full paragraphs on the page, an application based on an assertion of want of jurisdiction.

MR CHRISTIE:   Yes.  So, in our respectful submission, what the appellants contend is to the effect that Parliament intended something fundamentally different to what the Court of Appeal has expressed, what the second reading speech states, what your Honour Justice Keane has stated, what the Chief Justice of Singapore has stated and it would involve every single contentious progress claim, no matter how small, having the potential to give rise to proceedings such as the Maxcon proceedings where the amount in dispute is modest and we respectfully submit, that is clearly not what Parliament intended.

KIEFEL CJ:   That might be a convenient point.  We will adjourn until 2.00 pm.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

KIEFEL CJ:   Yes, Mr Christie.

MR CHRISTIE:   Thank you, your Honour.  Before the luncheon adjournment I took your Honours to the objects and the context of the Act.  I took your Honours to the decision of your Honour Justice Keane in RJ Neller which was adopted by the Court of Appeal, I took your Honours to Southern Han Breakfast Point which states the objects and the context of the Act, and I took your Honours to the decision of the Court of Appeal of the Supreme Court of Singapore.

I also put to your Honours that on the appellant’s case, Parliament intended something fundamentally different to what those cases suggest Parliament intended.  On the appellant’s case, Parliament intended that every single contentious progress claim, no matter how small, would have the potential to give rise to Supreme Court proceedings for non‑jurisdictional error, that legal advisers with their fine‑tooth combs could pour through adjudication determinations looking for legal error, and we respectfully submit that that would result in more delay and more costs and nothing could have been further from Parliament’s mind, in our respectful submission.

Can I then turn to the Maxcon appeal?  Our submissions on error of law on the face of the record are the same in that appeal.  Can I then turn to the issues which arise specifically and only in the Maxcon appeal?  Mr Vadasz’s submissions can be reduced to two propositions.  Firstly, we submit that the Full Court was correct in concluding that the error that it identified was not jurisdictional.  Secondly, we submit the Full Court was correct in concluding that, if there was an error of law, the court had the power to sever the determination.  Further, by way of notice of contention, we submit that in fact there was no error of law at all.

Can I commence by taking your Honours to the notice of appeal, which your Honours will find in volume 2 of the Maxcon appeal book at page 521 and ask your Honours to note ground of appeal 3:

The Full Court erred by holding that the error of law made by the adjudicator in the application of s 12 . . . did not amount to jurisdictional error.

I think that requires careful noting.  What the appellant is saying is that the error which the Full Court held that the adjudicator made was not a jurisdictional error, not some other error but the error which the Full Court identified.  I think that becomes relevant because, in our respectful submission, my learned friend, Mr Whitington, with great respect, has wandered away from the notice of appeal, upon which special leave was granted, and has attempted to identify another error or other errors which do not come within the scope of the grant of special leave.

Can I commence by taking your Honours very briefly to some of the provisions of the South Australian Act.  They replicate the New South Wales Act, but I am taking your Honours to them because they are relevant only to this appeal and were not relevant to the Probuild appeal.  Can I commence by taking your Honours to Part 2 which commences with section 8.  Part 2 comprises sections 8 to 12.  I would just like your Honours to note that sections 9 and 10 deal with quantum – how much is required to be paid and the methodology to be employed in determining how much is to be paid.

Section 11 concerns when the amount is to be paid and section 12(2)(c) also relevantly concerns when payment is to be made.  Just going forward for a moment to section 22 – if your Honours go to section 22, your Honours will note section 22(1) states that:

An adjudicator is to determine –

(a)the amount of the progress payment (if any) . . . and

(b)the date on which any such any such amount –

becomes due.  This Court has held in Southern Han Breakfast Point that it is section 22(1) which confers jurisdiction upon the adjudicator.  The adjudicator, in making the determination, is required to consider the matters in section 22(2) and that includes, relevantly, paragraph (b):

the provisions of the construction contract –

So, the adjudicator considers the provisions of the construction contract for the purpose of determining the amount payable and the date that it is payable upon.  The criteria for determining the amount and the date are contained in sections 9, 10, 11 and 12. 

Now, can I just focus on section 12 for one moment?  I said section 12 relevantly deals with when payment is due.  I said that because when one goes to section 12(2)(c), relevantly for the purposes of these proceedings the key issue is whether the relevant provision of the construction contract was a provision that otherwise makes the due date for payment contingent or dependent on the operation of another contract.

Section 12 raises this question:  does a contractual provision satisfy the statutory criterion?  I would ask your Honours to note section 12(2)(c) uses the words “contingent or dependent on the operation of another contract”.  It does not use the words “the terms of another contract” but “the operation of another contract” which invites an inquiry as to the practical workings of the contract, not merely the terms, which in turn calls for in part a factual inquiry.

The question as to whether a contractual provision satisfies a statutory criterion is well known in other statutory contexts. Two examples that come to mind would be Part 4A of the Income Tax Assessment Act 1936 where one has a contractual provision forming part of the scheme and the question arises as to whether that contractual provision satisfies a certain statutory criterion.

Another example might be a contract which has an anticompetitive effect and the question would be whether that contractual provision satisfies a certain statutory criterion and usually, if not always, it will invite a factual inquiry, not just a matter of construing the provisions but a factual inquiry, particularly where one has matters of causation.  In this instance, Justice Blue did make some observations about causation which, in our respectful submission, really are matters of fact not law, and I will come to that in a moment. 

Can I then take your Honours to Part 3 of the Act? Part 3 is headed “Procedure for recovering progress payments”. If your Honours go to section 13, your Honours will see that the process for recovering a progress payment is triggered by the making of a progress claim by the claimant. Then section 14 provides that the respondent to the claim “may” provide “a payment schedule” if he or she or it disputes the whole or part of the amount claimed.

Your Honours will see in 14(2)(b) that a payment schedule must indicate the amount of payment, if any, that the respondent proposes to make.  Now, often that sum will be zero.  In this case, as your Honours will see in a moment, Maxcon conceded that it proposed to pay the vast majority of the amount claimed. 

Can I then take your Honours to section 16 which is headed “Consequences of not paying claimant in accordance with payment schedule” which is self‑explanatory and it provides in section 16(1)(c) that the section applies if:

the payment schedule indicates a scheduled amount that the respondent proposes to pay to the claimant –

and I should have said, the scheduled amount is the statutory term to describe the amount which the respondent proposes to pay, section 14.  Section 16(1)(d):

the respondent fails to pay the whole or a part of the scheduled amount to the claimant on or before the due date . . . 

(2)In those circumstances –

your Honours will see in paragraph (a) the claimant has two choices.  He, she or it can:

(i)recover the unpaid portion –

in the normal way, often by summary judgment or may:

(ii)make an adjudication application under section 17(1)(a)(ii) in relation to the payment claim –

Now, one might wonder why would not a claimant go straight to summary judgment under subsection (2)(a)(i)?  Why would a respondent do as the respondent in this case did and go to adjudication?  The answer normally is that it avoids the necessity to go to court because once one goes through the adjudication process one automatically obtains an adjudication certificate under section 24, files it with the court under section 25 and obtains a judgment debt.

Can I then just for completeness take your Honours to section 33 just to avoid any confusion.  Can I then turn to the claim by Mr Vadasz and your Honours will find that in appeal book volume 1 at page 269.  This is the first page of the adjudicator’s determination.  Your Honours will see at line 21 that there is reference to my client’s “Payment Claim” for $204,000, or thereabouts, at line 21, on page 269.

Then on the next line the adjudicator sets out the scheduled amount – that is, the undisputed amount which Maxcon stated in its payment schedule that it proposed to pay.  So your Honours will note that the amount in dispute before the adjudicator was some $63,000.  A little over half of that comprised the retention moneys which are the subject of the dispute in this appeal.

If your Honours go to page 271 your Honours will see at about line 36 next to the reference to d), a back charge of $35,000 excluding GST.  Now, Maxcon’s position in this Court is that because the adjudicator wrongly allowed my client’s claim for that amount the entire adjudicated amount is not payable – not just the retention sum of $35,000 plus GST, not just the entire amount disputed before the adjudicator, which was some $63,000, rather Maxcon’s position is that the entire adjudicated amount is not payable even though Maxcon never disputed the $141,000 and, indeed, expressly stated in its progress payment schedule that it proposed to pay that amount. 

Now, I mention this because it is relevant to the severability issue, which I will turn to in due course.  Against that background, can I take your Honours back to the ground of appeal which I started with and which your Honours will find at page 521.  As I said before, this ground of appeal concerns whether the error identified by the Full Court was a jurisdictional error, not whether some other error or some other alleged error was a jurisdictional error.  Can I take your Honours to the judgment of the Full Court where the Full Court clearly and unambiguously referred to the error?  Your Honours will find it at two locations.  The first is at appeal book 460.

KIEFEL CJ:   Paragraph?

MR CHRISTIE:   In paragraph 109 on page 460 at about line 17 where his Honour Justice Blue said:

Nevertheless, the adjudicator did err in law in his construction of the definition of “CFO” in the Contract essentially for the reason submitted by Maxcon to the adjudicator -

which presumably is a reference to Maxcon’s submission at the top of page 459.  Again, if your Honours turn to page 473, his Honour Justice Blue giving the majority judgment said this at paragraph 145 – that is page 473, paragraph 145.  It is at about line 15 of the page:

The adjudicator did not misunderstand the limits of his functions and powers.  He did not exclude from consideration, or fail to take account of, the relevant provisions of the Contract and in particular the definition in the Contract of “CFO”.  He correctly identified his task and the question to be determined; he merely got the answer wrong by misconstruing the definition of “CFO” in the contract.  This was an error made within jurisdiction and within power.

In our respectful submission, that is the only clear statement by his Honour to the effect that there was an error of law by the adjudicator.  Now, can I take your Honours back to his Honour Justice Blue’s judgment where he sets out section 12 on page 456, and my learned friend has already taken your Honours to the relevant language of 12(2)(c).  We have emphasised the words “operation of another contract”.  But your Honours ought also note the use of the words “contingent or dependent on” do raise notions of causation.

In paragraph 99 on that same page his Honour then sets out the retention clause which in essence provides that the retention amount or the balance of the contract price will not be paid to my client until an occupation certificate is issued.  Then on the next page, if one turns the page over to page 458, I would ask your Honours to note his Honour at line 30 referring to the relevant regulation in South Australia, and it is important to note that that regulation as paraphrased by his Honour – line 30:

imposes as the principal requirement for obtaining a certificate of occupancy the submission of a statement of compliance duly completed in accordance with the requirements of Schedule 19A.  Schedule 19A comprises Part B being a statement by the owner . . . and Part A being a statement by the builder –

So, in order to obtain the certificate, one needs a statement by both the builder and the owner.  Then, turning to the adjudicator’s reasoning, the adjudicator concluded at the foot of page 459, line 50:

The retention provision makes the payment of retention monies subject to the respondent’s performance under the head contract –

I pause to note that is a statement to the effect that the contractual provision satisfies a particular statutory criterion.  That is not necessarily a statement of law.  It may well be a statement of fact.  Just turning the page over to page 460, his Honour disagreed with that at paragraph 112.  It is not clear in 112 whether his Honour is making a statement of law or fact.  His Honour says in page 460, paragraph 112, third‑last line:

The retention provisions of the Contract made payment of the retention sum contingent on an independent event which was exogenous to both the Contract and the head contract.

There is obviously a disagreement expressed there with the decision of the adjudicator but it is by no means clear whether the learned judge is suggesting there is an error of law.  Certainly when it comes to encapsulating the error, his Honour only referred to the definition of “CFO” as being the subject matter of an error. 

Can I just take your Honours back up the page to page 460, where his Honour identified what his Honour held was an error in the definition of “CFO”.  That is at about line 18, which is replicated in his Honour’s conclusion at page 473, which I took your Honours to a moment ago.

We submit in our notice of contention that there was no error in the adjudicator’s construction of CFO, and indeed, when one goes to the previous page, page 459, at around line 40, the paragraph starting with the words “The release of”, in the second sentence the adjudicator accurately, in our respectful submission, paraphrases the relevant definition of an occupancy certificate. 

Now, assuming against us that there was an error in construing the contract and assuming against us that that led to the adjudicator wrongly applying section 12 of the Act, in our respectful submission that is not a jurisdictional error and we put the submission at a general level and at a specific level. 

At a general level we submit that the class of errors which are to be characterised in the context of this Act ought to be read narrowly and that it would be contrary to Parliament’s intention to read or to construe the class of jurisdictional error to be broad for the very reasons that we have dealt with in our submissions on error of law on the face of the record where I took your Honours to the objects of the Act and the texts of the Act and the remedial nature of the Act. 

But there are also specific reasons why this provision in particular ought not be read as one which would give rise to a jurisdictional error if there has been an error in construing the contract leading to the application of the section.  There are two ways I wish to put that.  The first is, as I put to your Honours before, the jurisdiction conferred on an adjudicator is conferred by section 22(1) and the jurisdiction is to determine the amount and the time of progress payments.  Any error in construing a contract, any material error, is likely to affect those issues.  In fact, apart from jurisdictional issues, such as whether there actually is a construction contract or whether the work has been done within the relevant jurisdiction, it is hard to think of a material error of contractual misinterpretation by an adjudicator which would not affect how much is to be paid – sections 9 and 10, and when they are to be paid – sections 10 and 11.

So if our friends are putting the proposition that an error in construing the contract is a jurisdictional error because it gives rise to a misapplication of section 12, in our respectful submission it would follow that virtually every misconstruction of the contract would be a jurisdictional error, whether it be in applying sections 11 and 12 when payment is due, or 9 and 10 – how much is due.  In our respectful submission, Parliament clearly did not intend that to be the case.

Now, in our written submissions we have referred to the lengthy test for determining whether there was a jurisdictional error or not and I do not think I need to take your Honours to Kirk.  However, I would like to take your Honours to one more recent case and that is the decision of this Court in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22. Your Honours Justices Gageler and Keane dealt with jurisdictional error at page 32 and on page 33 at paragraph 26, after referring to Project Blue Sky, your Honours said this – line 4 of paragraph 26:

To label a particular statutory duty either “imperative” or “directory” is to express the conclusion of a process of statutory construction.  Central to that process of statutory construction is an inquiry as to whether the statutory purpose of the duty, when considered within the particular statutory scheme of which it forms part, would or would not be advanced by holding an exercise of decision‑making power affected by breach of the duty to be invalid.

Considerations bearing on an inquiry of that nature have long been recognised to include the justice and convenience of holding that a breach of the duty invalidates an exercise of the decision‑making power.

We would respectfully submit that to hold that an error of law in construing a contract which is relevant to issues of quantum and time – sections 9, 10, 11 and 12 – ought not be construed as jurisdictional errors because the hold otherwise would not be advancing the objects of the Act and would be inconvenient, to say the least, for the reasons to which I have already adverted.

So, the question ultimately to be decided is:  did Parliament intend that an adjudicator would exceed his or her jurisdiction if the adjudicator misconstrued the terms of the contract resulting in a finding that a term was a “pay when paid” clause and we say for the reasons I have given, the answer is no. 

Can I just return to Justice Blue’s judgment, just for one moment.  I said before that the only clear and unambiguous findings of an error of law by his Honour was at pages 460, paragraph 109 and page 473 at paragraph 145 but I acknowledge that his Honour also doubted the correctness of the adjudicator’s decision in relation to the application of section 12 and that is at page 460, paragraph 40 in the passage I took your Honours to.  But to return to where I started on section 12, it is by no means clear, in our respectful submission, that misapplying a statutory criterion to a particular contractual provision – I withdraw that. 

Determining whether a contractual provision satisfies a particular statutory provision is purely a matter of law in any event and we would respectfully submit that if there is any error discernible in paragraph 40 of his Honour’s judgment, referring to the adjudicator’s determination, we respectfully submit, it is a matter of fact.  Encapsulating the adjudicator’s finding was one as to the operation of the contract, issues of causation and these are, in our respectful submission, quintessentially factual issues.  They are not legal issues.

GAGELER J:   They do not have to be legal issues for jurisdictional error.

MR CHRISTIE:   I appreciate that, your Honour, but there is no suggestion there is some jurisdictional fact here.

GAGELER J:   No, all I am saying is the fact/law distinction is not a critical distinction if the question is one of jurisdictional error; that is all.

MR CHRISTIE:   Yes, I accept that, your Honour, but it is not suggested in this case that there is a factual error which constitutes a jurisdictional error.

GAGELER J:   Well, one, you are now addressing the alternative way of looking at the error and that is that it is a misapplication of section 12(2)(c).

MR CHRISTIE:   Yes, that is not the way Justice Blue framed it though, in our respectful submission.  His Honour, in our respectful submission, did not make a clear finding that there has been a misapplication of 12(2)(c).  His Honour concluded that the contract did not operate in a certain way.  That is how we read his judgment, your Honour.

NETTLE J:   Well, he put it that the adjudicator misconstrued the definition of CFO in the contract.

MR CHRISTIE:   Yes, your Honour.

NETTLE J:   I suppose the reverse of the coin is necessarily that he erred in his application of section 12(2)(c) to the definition of CFO in the contract.  Does it make any difference?  One way or the other he made an error of law, at least as it is said.

MR CHRISTIE:   It makes a difference, at least in terms of the notice of appeal, because the notice of appeal is dependent upon the error of law identified by Justice Blue, not some other error.  It is not as if the appellant is saying that there was an error of law by the Full Court because it should have held that section 12 was misapplied.

GAGELER J:   That might be a slightly too precious reading of the notice of appeal, because the appellant does rely on the dissenting judgment of Justice Hinton, and Justice Hinton, at page 512, clearly has an alternative way of characterising the jurisdictional error.  It is a misapplication of a statutory provision.

MR CHRISTIE:   May it please the Court.  In any event, we say that his Honour is wrong, if I can get straight to that point.  If your Honour goes to page 460, his Honour says, in that sentence I have taken your Honours to more than once ‑ ‑ ‑

GORDON J:   This is Justice Blue, though.  I thought Justice Gageler was putting Justice Hinton to you.  Is not page 460 Justice Blue?

MR CHRISTIE:   Yes, your Honour.  I am trying to make the point that Justice Blue, in the majority judgment, was wrong.  The reason I say that his Honour is wrong is this:  his Honour said:

The retention provisions of the Contract made payment of the retention sum contingent on an independent event which was exogenous to both the Contract and the head contract.

We say that is wrong for these reasons. 

GAGELER J:   So you say there is no error in the construction of the contract and you say there is no error in the application of section 12(2)(c).  I follow that. 

MR CHRISTIE:   We do, your Honour.

GAGELER J:   But if there is an error in the application of section 12(2)(c) to the contract, is that a jurisdictional error?

MR CHRISTIE:   We say no.  I take on board what your Honour ‑ ‑ ‑

GAGELER J:   Justice Hinton says yes, it is; your opponent says yes, it is.  If you have got a reason for saying it is not, you should say it.

MR CHRISTIE:   Our submission is simply this:  the question of whether a contractual provision satisfies the statutory criterion is not simply an issue of law.  It is also an issue of fact.  That is our submission, your Honour.

NETTLE J:   I thought your submission was that jurisdiction derived from section 21 and what the adjudicator was doing was applying the statutory definition to a contractual provision in order to produce an amount.

MR CHRISTIE:   That is our primary submission, your Honour.

NETTLE J:   What is the secondary submission?

MR CHRISTIE:   Well, the secondary submission is ‑ the particular question posed to me as I understand it is:  is a misinterpretation of a contract resulting in a misapplication of section 12 a jurisdictional error?  Your Honour Justice Nettle is quite right, that is our submission and I do not need to add to that.

GAGELER J:   I follow that.  Thank you.

MR CHRISTIE:   We say there was no error, in any event, and can I explain why that is so?  The starting point for the submission is that the contract itself made payment dependent upon the issue of an occupancy certificate.  That is not in dispute.  Secondly, we know from regulation 83 that the occupancy certificate required – this is on page 458 of the appeal book – a statement from both the owner and the head contractor, Maxcon. 

We also know from his Honour’s reasoning that as between the owner and the head contractor, Maxcon, Maxcon had promised to obtain the certificate and that is in the judgment at page 458, line 49.  So, against that factual background, one asks the question, was payment contingent or dependent in any way upon the operation of the head contract, and we respectfully submit the answer clearly is yes.

KIEFEL CJ:   Was this issue before the Full Court?

MR CHRISTIE:   Yes, it was. 

KIEFEL CJ:   Is it referred to in the reasons of Justice Blue?

MR CHRISTIE:   His Honour puts the counterargument, particularly on page 460.  I think it is fair to say his Honour’s counterargument is in paragraph 111.  Perhaps I should read it, it is on page 460.  His Honour said:

It is not essential for issue of a certificate of occupancy that there be a builder –

I pause to note, well, that may be so, but in our case there is a builder and the builder has promised the owner that it would obtain the certificate.  Continuing on:

the owner might itself construct the building by directly engaging subcontractors, in which event there will be no head contract between owner and builder.  If there is a builder, while commercially uncommon for there not to be a contract, it is not essential that there be a contract between owner and building.  These examples illustrate that the issue of a certificate of occupancy depends on completion of the building in accordance with the plans and specifications the subject of the development approval and not upon any contract that may have been entered into between owner and builder.

Now, those last words seem to suggest his Honour is stating this at a high level of principle when, in our respectful submission, one must actually look at the head contract and ask oneself, has the builder promised to obtain the occupancy certificate?  If it has, then the obtaining of the certificate is at least in part dependent upon the builder doing something under that contract, fulfilling its contractual obligations, and it would follow ‑ ‑ ‑

EDELMAN J:   It is a question of multiple sufficient causes, is it not, under 12(2)(c)?  You say 12(2)(c), properly characterised, encompasses the possibility of multiple causes.

MR CHRISTIE:   Well, might I say, with great respect, your Honour has hit the nail on the head.  That is exactly the problem with his Honour’s reasoning, that it does not acknowledge that there may be more than one cause.  We do not disagree with his Honour that there may be other causes.  All we say is that one cause here is the way your Honour has just put it.  So we say, for that reason, in support of our notice of contention, there was no error of law at all.

EDELMAN J:   Was there any issue about whether Mr Vadasz’s allegations that are set out in paragraph 106 could be accepted as being the fact?

KEANE J:   Well, 107 seems to accept the assertion.

MR CHRISTIE:   Correct.  Your Honour means Mr Vadasz’s assertion?

KEANE J:   Yes.

MR CHRISTIE:   That is correct, your Honour.

EDELMAN J:   And the appeal proceeded on that basis. 

MR CHRISTIE:   I think that was the no evidence point that I think my learned friend may have referred to.

EDELMAN J:   Yes.

KEANE J:   Mr Christie, in paragraph 111, on page 460, that last sentence that says:

the issue of a certificate of occupancy depends on completion of the building in accordance with the plans and specifications . . . and not upon any contract that may have been entered –

In the universe of possible causes of the issue of the building contract, was there any way in which the building could be completed in accordance with the plans and specifications otherwise than by the head contractor, building it for the owner?

MR CHRISTIE:   To my knowledge, no, your Honour.  Can I then turn to the issue of severability, your Honours.  Your Honours will appreciate, of course, that part of the adjudicated amount, which is said to be infected by error, jurisdictional or otherwise, is very modest.  Out of the $200,000 it is $35,000, plus GST.

And as I explained to your Honours, Maxcon in its payment schedule expressly stated that it did not dispute and proposed to pay the $141,000.  Nonetheless, in these proceedings it claims that if the adjudication determination is set aside it is not required to pay one cent, notwithstanding its payment schedule that it did not dispute the bulk of the payment claim.

The issue of severability arises in Maxcon’s notice of appeal, but it also is mirrored in our notice of contention.  And we respectfully submit that it is open to a court to severe an adjudicated determination.  We rely in our written submissions upon general principles ‑ and so did his Honour Justice Blue, I should say ‑ and in particular on the decision of this Court in Re Media, Entertainment and Arts Alliance.  But before I take your Honours to that, can I take your Honours to the Acts Interpretation Act (SA).

GAGELER J:   When you are talking about severance here, what are we assuming – jurisdictional error or error of law on the face of the record?  Or, is there a different argument applicable depending on which it is?

MR CHRISTIE:   Either, your Honour, either. Can I commence by taking your Honours to the South Australian statute? In our list of authorities, section 13 is the relevant provision which, I think, Mr Whitington has already taken your Honours to and section 13 says:

A statutory or other instrument –

And I think the dispute, ultimately, between us is what the meaning of the word “instrument” is:

made pursuant to a power conferred by or under an Act will be read and construed so as not to exceed that power, so that, where a provision of the instrument, or the application of a provision of the instrument to any person or circumstances, is in excess of that power, the remainder of the instrument, or the application of the provision to other persons and circumstances, is not affected.

My learned friend says, that is all very well but this is not an instrument.  The question does raise the question, what is the common law meaning of the term “instrument”?  We rely on the decision of Justice Finn who collected the authorities in X v Australian Crime Commission. Your Honours will find that at (2004) 139 FCR 413. And at 420, your Honours will see a heading at paragraph 27:

“Is a s 7C determination an instrument?”  

His Honour says:

The term “instrument” is not defined in the ActsInterpretation Act –

Then skipping some words to line 4:

Its meaning in this setting has, in consequence, been derived primarily from ordinary legal usage.

Then there is a reference to a decision of the Court of Appeal of the Supreme Court of Victoria and I will not read it, your Honours, but it is couched in very broad terms and, in our respectful submission, there is no reason to doubt that an adjudicator’s determination is not an instrument for the purposes of that definition.

KIEFEL CJ:   Is not an instrument?

MR CHRISTIE:    We say, it is an instrument, I should say.  There is no reason to doubt that it is an instrument, I should have said. 

KIEFEL CJ:   At the conclusion of paragraph 28, referring to Barton v Croner, it is said that:

the term instrument . . . is used to include at least “any writing designed to carry into effect a statute”.

MR CHRISTIE:    Yes.  Yes, we would say it is not limited to that, though.

KIEFEL CJ:   What is your authority for that?  What is your authority for something like an adjudicator’s determination in one case involving the rights inter se between parties is meant to be an instrument under a provision dealing with statutes and instruments connected with statutes?

MR CHRISTIE:   I do acknowledge the force of your Honour’s observation that it is an unusual application of the term insofar as it binds the rights of the parties inter se and does not have any public element; I acknowledge that, but when one looks at the definition as encapsulated by the Court of Appeal in Victoria, it does seem to be a term of extremely broad import and then if Parliament wanted to use the term “statutory instrument” or some other like term, it could have.

BELL J: Well, Parliament did use the term “statutory instrument” in the heading of section 13.

MR CHRISTIE:   I withdraw that.  Statutory instrument was the wrong term.  It could have limited the scope of the term “instrument” but, in any event, we do not depend just on that provision, your Honours.  We also rely upon the decision of this Court at a more general level in Re Media, Entertainment and Arts Alliance;Ex Parte Arnel (1994) 179 CLR 84. Can I take your Honours to page 90 of that decision? This was a case ‑ at page 90, your Honours will see in the last new paragraph, this was a case where 445 individual employees filed submissions with the Full Bench of the Industrial Relations Commission and the employees wished to be heard on two issues. Those issues are referred to on page 94.

The first is what is described as ‑ this is at page 94, five lines from the bottom ‑ the first is what are called section 101 proceedings and they are defined on page 87 and the second issue was what is referred to as “differential rate” at the top of page 95.  The Full Bench of the Commission declined to allow the employees to be heard and the Full High Court referred to the Full Bench’s decision at page 94, point 3; that is the second new paragraph on page 94, around point 4 on the page:

It is clear that the Full Bench decision on 19 May 1993 –

just pausing there, that is the decision which had two aspects to it.  The Commission held that the employees were not entitled to be heard on either issue.  The High Court held that the Full Bench erred in not allowing the employees to be heard but only in relation to one of those two issues and your Honours will find that on page 95 and, in the first new paragraph their Honours say, after referring to prohibition in line 5:

To the same extent, certiorari should issue to quash the decision of 19 May1993.

So, the decision of 19 May 1993 had two aspects to it but the Full High Court is saying that, only to that extent – I withdraw that – only to the extent that the employees were not permitted to be heard on one of those issues was certiorari to be issued.

And so in our respectful submission, the notion that a decision can be the subject of partial certiorari is not novel in light of that statement.  Your Honours, based on the principle reflected in that decision, even before one gets to the South Australian statute, in our respectful submission, it is open for the Court to sever the determination if it can be severed in accordance with principles.  I am not suggesting that every error can lead to severance – obviously not.  Sometimes it is impossible to disentangle the error from the entire decision.

Your Honours, I have dealt with all the matters I wish to deal with.  In relation to the issue of functus, we have dealt with that in our written submissions.  I do not really wish to add to what is in our written submissions on that.  Suffice to say that, in the Probuild Case, his Honour Justice Emmett did hold the matter should be remitted to the adjudicator, and there has been no appeal from that finding at any stage.  There was no cross‑appeal or notice of contention in the Court of Appeal, and the matter is not disputed in these proceedings.

To answer your Honour Justice Gageler’s question earlier on, it might be said that the remitter really is in substance an order in the nature of mandamus.  I really have no further submissions to make on that, other than what is in our written submissions.  May it please the Court.

KIEFEL CJ:   Thank you, Mr Christie. Yes, Mr Walker.

MR WALKER:   Your Honours, on that last question – not really, I should say, by way of reply – could I just add some case law references to elaborate the answers I gave in‑chief to Justice Gageler.  It really is also germane to what my learned friend has just said in his closing remarks.  There are two decisions which raise questions, only partially answering them, not, I think, in any binding way concerning ‑ one of them remitter, and both of them in relation to the effect of the time limits having been passed, of course, by the time the putative certiorari produces the possible remitter or at least quashes the determination.

They are, first, the decision of Justice McDougall in Richard Crookes Construction v CES Projects (Aust) (No. 2) [2016] NSWSC 1229; and Mount Lewis Estate v Metricon HomesPty Ltd [2017] NSWSC 1121, a decision of Justice Hammerschlag. I do not need to take your Honours to them; they are places where you find – I think the correct word is “discussed” – frankly some of the difficulties that are raised by the matters that Justice Gageler has raised with me. We maintain the position I put in‑chief, namely, that though remitter is not necessary, no harm done, and that the process can pick up where it left off, the time limits not being such as to impose a jurisdictional limit.

GAGELER J:   Where did it leave off?

MR WALKER:   It left off, in our case, when the determination is quashed for exhibiting error of law on the face of the record.

GAGELER J:   Where does it pick up?

MR WALKER:   It picks up at making a determination.

GAGELER J:   So it goes back a bit?

MR WALKER:   Yes, just to a point of ‑ ‑ ‑

GAGELER J:   It flips a few steps?

MR WALKER:   Yes, your Honour.

GAGELER J:   Rewinds.

MR WALKER:   The discussions I have drawn to attention address both what I might call the pragmatic aspect of that, but also the difficulties of that.  On our researches, it has never been a critical question.  It is related to a matter to which some reference has been made, namely, does the power to condition the exercise of the judicial review discretion introduce the possibility of what I might call some remedial flexibility?  The answer is in general terms, yes.

I did not draw to attention in‑chief – I do not know that my learned friend has found it necessary to refer to it – but your Honours may have noticed that the time limits have their own hearty derived flexibility, and in particular they contemplate that the – in section 21(3)(b), that the claimant and the respondent may agree on further time.

In some cases, the interests of a person who had benefited from a determination which has been quashed for non‑jurisdictional error would be such as to render realistic imposing a term on the successful plaintiff in those judicial review cases that there be an agreement that the process can continue within a certain agreed time.  I raise that as a possibility.  I cannot say that we found any trace of such an expedient having been adopted.

Could I then move to the main matter for reply?  Your Honours, in Craig (1995) 184 CLR 163, at the commencement of the analysis relevant for present issues at page 175, there is a very general - what their Honours described as “summary identification” of the various grounds for certiorari. Their Honours use the expression “a number of distinct established grounds”, and then a familiar list which concludes with “error of law on the face of the record”.

If I may say so, slightly facetiously, nothing is to be taken to the detriment of that as an established distinct ground by the fact that the phrase is included within inverted commas.  The decision in Craig, of course, continued to deal with what I will call the first and last of those grounds – that is, the first was jurisdictional error and the last was error of law on the face of the record which is a non‑jurisdictional error.

The distinction between them in that respect was critical according to this very passage in Craig and at that time in the jurisprudence of this country.  One sees the sentence ending that paragraph at the top of page 176 commences with the phrase “In contrast”, and that contrast is one which determines what can be done and what can be looked at in judicial review proceedings. 

You can look more broadly in the case of jurisdictional error, procedural fairness, fraud, than you can in the case of error of law on the face of the record, as one might imagine from the description of that last.  But of course since then in Kirk there is now a Constitutionally – capital C – Constitutionally required continuance of the distinction between the jurisdictional and non‑jurisdictional errors that may give rise to a certiorari.

None of that suggests that there is anything in the nature of a dead letter about error of law on the face of the record as a ground of judicial review by way of certiorari in case of a decision under a statutory scheme of a kind which otherwise is final and determinative of rights.

In relation to the record, of course Craig wound back what is described at page 180 by reference to some New South Wales Court of Appeal decisions as the “modern record”.  The modern record was resisted, if I may say so, and their Honours then very squarely placed the matter back in the hands of the legislature.  One gets that last from what you see on page 180 at the end of the paragraph starting at the subheading “The face of the record”.  You will see a reference to the legislative reforms:

Their practical effect was, however, to bring about a general confinement of the content of an inferior court’s “record” for the purposes of certiorari –

et cetera.  It was by contrast with what was then called the modern record that their Honours then went on in particular to deprecate the notion that a transcript is to be included in the record, not least because as a matter of what I will call the policy of the law their Honours say on page 181, an inch down, that:

would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error.

There is the policy of the law being enlisted for the purpose of the definition, perhaps the vindication of an earlier more robust view of “record” but not, of course, so as to say this is a form of judicial review that should be regarded as contraindicated by the mere creation of a statutory scheme otherwise final and determinative of rights, nothing like that at all.  At the end of that very paragraph on page 181, their Honours conclude by saying:

the question whether there should be such an increase in the availability of certiorari –

that is, by adjusting the nature of the record:

or of orders in the nature of certiorari –

that is, the kind of relief that a provision like section 69 of the Supreme Court Act (NSW) had substituted for the writs:

is one that is best left to the responsible legislature -

which, in New South Wales’ case, fairly promptly in the nature of things, was taken up and attended to. Now, that then naturally leads to a consideration of a matter that was raised with my learned friend, namely, what, if anything, is to be gathered in this context by the provisions of section 69(5) of the Supreme Court Act.

GAGELER J:   Mr Walker, were you going to come back to Craig or have you finished with Craig at the moment?

MR WALKER:   No, I have not.  I want to come back, as it were, to the end of Craig in a moment.

GAGELER J:   I will wait.

MR WALKER: Section 69(5) is one of those notable provisions which incorporate the common law explicitly in a legislated provision. It appears either to have been made out of an abundance of caution, or perhaps as a matter of principle to ensure that what I am going to call the Hockey v Yelland approach would remain undisturbed or intact, notwithstanding what had been done by subsections (3) and (4).

Now, I say it might have been out of more abundant caution because it is not obvious how taking up the High Court’s invitation for a legislative to consider the narrowing of record would have anything to do with the way in which one interprets a statute to see whether the decision‑making in question is to be immune or not from certiorari for error of law on the face of the record.

In any event, what subsection (4) says of subsections (3) and (4) is that they do not affect the operation of any legislative provision to the extent to which the provision is according to common law principles - those are common law principles of statutory interpretation but obviously also specifically the common law principles to which Hockey v Yelland speaks and disregarding those subsections effective to prevent the Court from exercising its powers to quash or otherwise review a decision.

In other words, the question which will arise, decision by decision, by which I mean species of decision by species of decision, as to whether the general jurisdiction to quash for error of law on the face of the record is one where there is not to be any alteration of the approach by reference specifically to subsections (3) and (4), having declared what might be regarded as an expanded view of the record.

One thing that speaks to, of course, is what their Honours in Craig had warned, that if the record is too broad it might become functionally very similar simply to an appeal, different only in the sense that it is discretionary.  The Parliament is here saying that that consideration which, as your Honours have heard, might be regarded by some as relevant to the question of statutory interpretation, had certiorari for error of law on the face of the record been excluded, see what they have or have not done about appeal, what is being done in subsection (5) is to say that that is not the way, in the question of statutory interpretation “according to common law principles”, by which that removal of the jurisdiction, the ouster of the jurisdiction, is to be considered.

Can I then come back in Craig to the way in which thereafter their Honours proceed, first, to consider the question of jurisdictional error and, as a matter of characterisation not otherwise relevant for today’s purposes, concludes that there was no error which bore that character, if there had been error by the judge in what I will call the Dietrich determination.  That is to be found at page 186.

Then, because the two simply separate grounds of the possible certiorari had been raised, their Honours turn, at the foot of page 186, to the other one ‑ error on the face of the record – and determine that because the record did not include the transcript or exhibits, both of which would be necessary in order to make good the point, that there was no such error available there either. 

In no case, of course, was it said that the ground of error on the face of the record stood in what might be called some different plight in terms of whether it could be made out or not by reason of the fact that it was non‑jurisdictional.  In our submission, the convenient labels “jurisdictional” and “non‑jurisdictional” ought not be understood in this Court as meaning, as it were, important and less important, or serious and not so serious, or mortal or venial. 

True, as to the last pair, jurisdictional is mortal in one sense and non‑jurisdictional is venial in one sense but in cases where the jurisdiction to grant certiorari has not been ousted then the quashing is a quashing is a quashing.  The determination is quashed be it for jurisdictional error or non‑jurisdictional error. 

The significance of Hockey v Yelland and, in our submission, the significance of the inability to locate anything since then that has reversed this position is that in that Court, in that case, not for the first time but as what was obviously regarded as an extremely important politically relevant aspect of our jurisprudence, the access to the courts is set aside decisions - to have reviewed and to set aside decisions of a particular kind, that is, with the particular public aspect, which displayed error on the face of a relatively circumscribed error, was regarded as self‑evidently important. 

That, in particular, comes from the reasons of Justice Wilson with whom Justice Dawson agreed, in Hockey v Yelland - I do not need to read any of it but your Honours would be familiar with the passage that starts at the foot of 157 CLR at 141 and continues over to the top of page 143 in the course of which his Honour commences by referring to this Court’s slightly earlier decision in Houssein (1982) 148 CLR 88 and to the way in which there had been an exclusion in that case by using the time‑honoured and black letter expression “quashed or called into question”. That was sufficient to exclude. That had led his Honour Justice Wilson to say that judicial review will only be excluded if a clear legislative intent, for which I have been using the shorthand “clear words”, to that effect is shown.

There is a reference to a requisite lack of ambiguity and the concluding explanation by his Honour is in these terms.  The subsection, that is, the provision that was not sufficiently privative in Hockey v Yelland, is directed at securing the finality of a determination on the merits of a claim, we interpolate, just as one would see from the scheme in this case, and is not apt to deny the supervisory jurisdiction of the Supreme Court by way of a prerogative writ. 

The distinction between the finality - and our scheme is final in the sense that your progress claim is once and for all determined, even if your financial rights can be readjusted at the end - but that was not seen by Justice Wilson as contraindicating the availability of prerogative relief and that is because, we stress, it is hardly to be supposed that under the slogan “the right to be wrong” a scheme which includes provisions to which I have drawn attention in‑chief, section 9 in particular, is one which contemplates with equanimity or is complacent about the commission of error sufficiently obvious to be manifest on the face of a relatively circumscribed record.

GAGELER J:   Mr Walker, can I ask you a question about Craig at this point?

MR WALKER:   Yes, your Honour. 

GAGELER J:   It is 184 CLR 163 at 179, the paragraph which includes the quote from Lord Diplock:

“Parliament can . . . confer upon administrative tribunals . . . power to decide questions of law . . . but this requires clear words, for the presumption ‑ ‑ ‑

Now, in accepting what you describe as “the right to go wrong” on the part of an adjudicator, you accept, I think, that there is in this statute clear words that confer the right to go wrong.

MR WALKER:   Yes, but not complacency or equanimity about it.

GAGELER J:    No.  Do you require clearer words to oust jurisdiction or certiorari or error of law on the face of the record?

MR WALKER:   Yes.

GAGELER J:    It is a higher level presumption, is it?

MR WALKER:   No.  I do not want to state it otherwise than the Court has in Hockey v Yelland.  Clear words will do.

GAGELER J:   Do you need another set of words?

MR WALKER:   No.

GAGELER J:    You see in the legislative scheme the right to go wrong.

MR WALKER:   Yes.

GAGELER J:   But if you go wrong, you get quashed.

MR WALKER:   The right to go wrong is true of a scheme in relation to which a non‑jurisdictional error of law on the face of the record can be seen.  That is of the essence.  It is definitionally true of a non‑jurisdictional error.  To put it another way – and that is why I was trying to say there is nothing inferior about a non‑jurisdictional error - if it is a ground, as it is at common law for certiorari, it will lead to quashing subject to discretions that are not currently material. 

My point is this.  It is definitional of the existence of such an error that it was committed by a person who, in the sense of the slogan, had the right to be wrong, the slogan merely meaning that being wrong did not deprive the decision‑maker of jurisdiction to do what he, she or it has done.  That is my point about it is never enough, simply, to say that these adjudicators who are given the power to decide something which everybody must suppose may include error which will not be jurisdictional – which will not be jurisdictional and I accept that of course.  How could it be otherwise?

The time limit alone is enough to suggest that but I will go further – they being human will be enough to suggest that.  The question always

raised, will such errors, such as getting the section 9 question wrong – is this the progress payment in accordance with the terms of the contract – whether that is jurisdictional.  For non‑courts, for non‑legally trained tribunals in relation to matters of law, sometimes as a matter of interpretation that will render such errors jurisdictional.

We do not argue that in this case and for obvious reasons, pace our friends in Maxcon.  We say this is a non‑jurisdictional error, if it be error and it is conceded that it was error.  What we do say is that there is no footing in the authorities and there is every reason against it principle, to suppose that that premise for the availability of that established ground of certiorari, namely, that it be non‑jurisdictional but that it be error on the face of the record, repels or contradicts or immediately disapplies the availability of certiorari.

There is a fundamental disconnect in saying that a character of a decision, namely that it is a non‑jurisdictional error, being of law on the face of the record, is such as by that fact to mean there can be no certiorari because all the doctrine says no, no, no, that is the character that gives you certiorari and you look for something else other than it being within jurisdiction in order to find the contraindication of the certiorari. 

I fear I am repeating myself, but that is really at the heart of our case concerning why Hockey v Yelland is not an old‑fashioned, excessively black letter approach but rather an approach which treats correctly a scheme – coherent, self‑contained, expeditious, does not matter what epithet you apply – a scheme which gives rise to such decision‑making as a scheme which in accordance with the general jurisdiction of the court would attract certiorari to address something that matters to the system, namely, errors of law on the face of the record, unless there be the sufficiently clear legislative intention, clear words is the compressed version, to say otherwise. 

It is not available simply to say but it is within jurisdiction to make an error, therefore, there can be no certiorari to quash for an error within jurisdiction because one starts – the starting point is there is such a jurisdiction and you look for something other than the premise of that jurisdiction to remove that jurisdiction.  That is the point I have been trying to make.  May it please your Honours.

KIEFEL CJ:   Mr Whitington.

MR WHITINGTON:   Can I start by referring to my learned friend’s reliance on the likely incidence of error, the suggestion there would be a number of factors which would be likely to generate error as a reason for exclusion of the supervisory jurisdiction.  Can I repeat that our submission about the discretionary remedies and orders available to the Court to control those kind of issues and to ensure that if judicial review is sought it is achieved on what might be called satisfactory terms.

Now, if I might just illustrate that by reference to this case.  My learned friend, I think was want to emphasise the procedural history of this matter and emphasise the small amount in issue.  It needs to be understood that Mr Vadasz elected not to pursue the admitted amount as a debt due.  Instead he went to adjudication.  Following the adjudication in the Supreme Court proceedings, a stay of the order that was entered following adjudication was granted on the basis that Maxcon pay the court the full amount. 

The procedure around stays then became quite complicated in part for this reason, that it was following the adjudication determination that my client said it became aware for the first time that Mr Vadasz had been bankrupt at all material times, including the time he entered into the contract, and that had the potential to render the contract void and that was an issue then that was agitated and it informed to some extent the way in which stays were ordered.

KIEFEL CJ:   Which point are you addressing in reply, Mr Whitington?

MR WHITINGTON:   My learned friend suggested that in some way Mr Vadasz’s circumstances in this case was a demonstration of the fact that it was all too easy for errors to be used to in effect frustrate someone in the position of a subcontractor, and I was simply trying to make the point to the Court that in this particular case there were many complicating features, including a revelation of bankruptcy. 

But the ultimate result was that Mr Vadasz has been paid out of court the amount of money representing the concession my learned friend referred to in the payment schedule, and I simply wanted the Court to have that understanding in its appreciation of the way in which this scheme can work for or against contractors.

A small matter - my learned friend referred to section 35 of the Supreme Court Act as containing the relevant investiture of jurisdiction. In fact, it is in section 17.

KIEFEL CJ:   And section 6?

MR WHITINGTON: Yes, and section 6, but generally it is regarded as section 17 as well. Now, I will perhaps address the – we simply say there is no issue around the ground of appeal, ground of appeal 3. The ground of appeal focuses on the identification of error by the adjudicator and it complains about error by the adjudicator. It does not in terms, and does not need to, couch that ground of appeal in terms of the Full Court’s articulation of that error. But I will come to that on the notice of contention in a moment.

The Court asked my learned friend to what extent it challenged the finding of error in the Full Court.  Can I go to our submissions at paragraph 36 and ask the Court to note what we say there.  The respondent did not directly put in issue before the Full Court the nature of the error.  There was a foreshadowed notice of contention to put that in issue and then that was abandoned.

While the Court has our submissions there could I ask the Court to turn to page 16.  This is addressing my learned friend’s submissions on cases such as Re Media, Entertainment and Arts Alliance.  The submission we put in answer to those cases is at paragraph 65 and footnote 40.  I simply direct the Court’s attention to that.

Can I then come finally to the notice of contention.  Could I ask the Court to take up our learned friend’s submissions and go to page 9 and the section at paragraph 41 through to 56.  The Court will see that in paragraph 43 reliance is placed on paragraph 107 in the Full Court’s reasons and that reliance is in effect repeated throughout the submissions.  You see that in paragraph 46.  There are there elements and this is really a syllogism – point 1 is the major premise, point 2 is the minor premise and then the consequence is said to follow in 46, point 3.

Paragraph 49 picks up again on the reliance on paragraph 107 and paragraph 51 does the same in the second sentence.  Paragraph 53 does the same in the first sentence under point 1.  It is as a result of that it is said in paragraph 56 that the adjudicator did not err in construing the contract.

Now, the Court has been to it before but we simply want to make this submission, that all of those contentions are based upon a reliance on paragraph 107 as being the Full Court’s relevant identification of the error.  But you need to read from 107 through to 112, and ultimately go to 112 to understand the nature of the error that the Full Court identified.  The Full Court did not find error in terms of paragraph 107.  The first sentence – that is:

that Maxcon was obliged under the head contract to . . . procure a certificate of occupation thereupon.

Rather, the Full Court, as I said in my principal submissions, found that, based upon the submissions which the adjudicator accepted, Maxcon was obliged to undertake certain matters and attend to certain requirements, but

then whereupon a certificate of occupancy could be issued.  That means that the finding is that Maxcon was to do two specific things which would facilitate the issue of a certificate of occupancy, not that Maxcon itself was to obtain the certificate of occupancy.  When one understands that that is the effect of the judgment, that, in effect, destroys the premise upon which the contentions are advanced.

NETTLE J:   But you say you are supposed to read down 107 in light of 112 ‑ ‑ ‑

MR WHITINGTON:   Exactly, your Honour, yes.  That is the only way you can rationalise these reasons.

NETTLE J:   Either that or 112 ill accords with the factual finding at 107.

MR WHITINGTON:   It is, with great respect, maybe 107 is a little loose.  As I said to this Court a little earlier, the first sentence, in effect can be taken as read.  It is true to say that:

Maxcon did not take issue –

That of course does not make the allegation the fact of the matter.  The sting, I suppose, for Maxcon is in the second sentence:

Maxcon’s submissions accepted that this was so, but contended that it was irrelevant.

NETTLE J:   Yes.

MR WHITINGTON:   That, we say, is only a partial or not entirely accurate statement of the submission which was a submission in response, in the nature of confession and avoidance but without an actual confession.  It was really a confession by way of assumption that said well, assuming that to be true, nonetheless you do not make out a section 12(2)(c) case.

But we say you cannot anywhere fairly read the Maxcon submissions as conceding the fact of the matter, that is, that the head contract contained a requirement that Maxcon was to procure a certificate of occupation and when you understand that and read paragraph 112 in light of that we say that paragraph 112 is the final and conclusory finding on this question.  It is the statement of the error identified, for better or worse, by the Full Court and that does not sit well with - indeed, it is incompatible with the contention submissions because they are founded on a different error.  If the Court pleases.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns until 10.15 am on Tuesday, 14 November.

AT 3.30 PM THE MATTER WAS ADJOURNED