Reiby Street v Winterton

Reiby Street Construction Pty Ltd (Reiby) sued Winterton Constructions Pty Ltd (Winterton) in relation to an adjudication determination made pursuant to the Building and Construction Industry Security of Payments Act 1999 (the Act). Reiby sought to have the adjudication determination reviewed on the basis that there was apprehended bias on the part of the adjudicator, Mr James, because of a previous dispute. Reiby argued that this meant the determination was void and should be quashed. The primary judge found that there was indeed apprehended bias and quashed the determination. Winterton appealed to the Supreme Court of Queensland.
The court had to determine whether there was apprehended bias on the part of the adjudicator. It also had to determine whether Reiby was estopped from now seeking an order in the nature of certiorari because it had elected to continue with the adjudication process. The court also needed to consider whether there was a waiver of the right to object to the adjudicator on the basis of apprehended bias by continuing with the adjudication process.
The court found that there was apprehended bias in the circumstances. This was because the adjudicator had previously been involved in a dispute with Reiby which was not fully resolved at the time of the adjudication. The court found that this was sufficient to establish apprehended bias. The court found that Reiby was not estopped from seeking an order in the nature of certiorari. This was because there was no election or waiver of the right to object on the basis of apprehended bias. The court quashed the adjudication determination.
The court made an order quashing the adjudication determination and remitted the matter back to the parties for further adjudication in accordance with the Act.