Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd

The High Court of Australia considered an appeal from the Supreme Court of New South Wales concerning the availability of judicial review for an adjudicator's determination under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute arose between Probuild Constructions (Aust) Pty Ltd and Shade Systems Pty Ltd, where Shade Systems made a claim for a progress payment. Probuild disputed the claim, asserting a right to set off a significant amount for liquidated damages due to alleged delays. An adjudicator determined that Shade Systems was entitled to a progress payment, rejecting Probuild's set-off claim on specific grounds. Probuild subsequently sought an order in the nature of certiorari to quash the adjudicator's determination.

The central legal issue before the High Court was whether the *Security of Payment Act* excluded the jurisdiction of the Supreme Court to grant an order in the nature of certiorari for a non-jurisdictional error of law appearing on the face of the adjudicator's determination. This involved considering the effect of the Act's provisions, particularly its strict timetable for determinations and the absence of a formal right of appeal, on the traditional supervisory jurisdiction of the Supreme Court. The Court had to determine if the Act evinced a clear legislative intention to oust this jurisdiction for errors that did not render the decision entirely beyond power.

The High Court reasoned that the *Security of Payment Act*, while establishing a swift and final determination process, did not contain a privative clause that clearly evinced an intention to exclude the Supreme Court's jurisdiction to grant certiorari for non-jurisdictional errors of law on the face of the record. The Court distinguished between jurisdictional errors, which render a decision a nullity, and non-jurisdictional errors, which occur within the exercise of conferred power. The Act's scheme, including its strict timeframes and lack of appeal rights, was premised on the assumption that decisions would not be subject to challenge for errors of law that did not exceed the adjudicator's authority. The Court affirmed that legislation rarely authorises legal error and that expressions such as "authority to go wrong" typically refer to errors made within jurisdiction that are rendered unreviewable by a privative clause, rather than authorising the error itself.

The appeal was dismissed.