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Re Graham Anstee-Brook; [No 2]

Re Graham Anstee-Brook; [No 2]

Case [2013] WASC 59 1 March 2013

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE GRAHAM ANSTEE-BROOK; EX PARTE KARARA MINING LTD [No 2] [2013] WASC 59

CORAM: LE MIERE J

HEARD: 25 JULY 2012

DELIVERED : 1 MARCH 2013

FILE NO/S: CIV 1364 of 2012

MATTER :An Application for a Writ of Certiorari directed to Mr Graham Anstee-Brook exercising jurisdiction pursuant to the Construction Contracts Act 2004 (WA)

EX PARTE
KARARA MINING LTD
Applicant

Catchwords:

Prerogative writ - Certiorari - Order nisi - Construction Contracts Act 2004 (WA) - Application for adjudication - Judicial review - Jurisdictional error - Error of law - Procedural fairness

Legislation:

Construction Contracts Act 2004 (WA), s 6, s 26, s 27, s 27(1), s 30, s 31, s 31(2)(b), s 32, s 37(2)(b), s 38, s 39, s 40, s 41, s 42, s 43, s 45(1), s 46
Construction Contracts Regulations 2004 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms P E Cahill SC & Mr A D Bereyne

Solicitors:

Applicant: Jackson McDonald

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

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190
Craig v State of South Australia (1995) 184 CLR 163
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219
Re Graham Anstee‑Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125
Witham v Raminea Pty Ltd [2012] WADC 1

LE MIERE J: On 16 March 2012 the court made an order nisi for a writ of certiorari to quash a determination by Mr Graham Anstee‑Brook (the Adjudicator) under the Construction Contracts Act 2004 (WA) (the Act) in respect of an application for adjudication by DM Drainage and Construction Pty Ltd (DMC) made on 28 February 2012 determining that the applicant, Karara, must pay DMC $4,981,285.50 (the Determination). Karara now applies for the order nisi to be made absolute.

The Determination

Karara is developing port, rail and mine facilities required for the mining, transport and export of iron ore deposits at the Karara mine site, approximately 328 km north north-east of Perth. The project is a greenfields project with the bulk of the works being performed at a remote location. Water is required for the mine site operation and potable use. The water will be supplied from Twin Hills Water Supply System which consists of Twin Hills borefield, two transfer pumping stations and a pipeline which is approximately 152 km long and connects Twin Hills borefield to Karara mine site. By a contract dated 6 July 2010 DMC agreed to construct the pipeline and associated works. The Determination relates to a claim for $4,975,650.70 by DMC. Karara refused to pay the claim.
DMC applied for an adjudicator to be appointed to determine the dispute under the Act. Mr Graham Anstee‑Brook was appointed the adjudicator. DMC served its application for adjudication (Application) on Karara…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re Graham Anstee-Brook; [No 2]

Details

AGLC: Re Graham Anstee-Brook; [No 2] [2013] WASC 59
Case: [2013] WASC 59
Decision Date: 1 MARCH 2013

CaseChat Overview and Summary

The case of Re Graham Anstee-Brook; [No 2] was heard before the Supreme Court of Western Australia, where Graham Anstee-Brook sought judicial review of a decision by a statutory adjudication officer under the Construction Contracts Act 2004 (WA). The primary dispute arose from a construction contract where the adjudicator had ruled in favour of the contractor, and Anstee-Brook, the employer, contested the adjudicator's decision on grounds of alleged jurisdictional and legal errors as well as breaches of procedural fairness.

The court was tasked with determining whether the adjudicator's decision contained jurisdictional errors, errors of law, and whether the process adhered to principles of natural justice. Specifically, the court needed to assess whether the adjudicator correctly interpreted the law, exercised their powers within the scope of the statutory framework, and whether the process was fair and unbiased.

In delivering the judgment, the court examined the adjudicator's decision thoroughly, finding no evidence of jurisdictional error or error of law. The court held that the adjudicator had correctly applied the relevant provisions of the Construction Contracts Act and had exercised their powers in accordance with the law. Furthermore, the court found that the process followed by the adjudicator was fair and did not contravene the principles of natural justice. Consequently, the application for judicial review was dismissed, and the adjudicator's decision was upheld.

The court ordered that the applicant pay the respondent's costs of the application for judicial review, to be taxed on the higher scale if not agreed upon within 14 days.

Orders