Salini-Impregilo S.P.A. v Francis - [2020] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SALINI-IMPREGILO S.P.A. -v- FRANCIS [2020] WASC 72
CORAM:   ARCHER J
HEARD:   31 JULY, 10 & 11 SEPTEMBER 2019
DELIVERED          :   6 MARCH 2020
FILE NO/S:   CIV 3152 of 2018
BETWEEN:   SALINI-IMPREGILO S.P.A.
First Applicant
NRW PTY LTD
Second Applicant
AND
DAVID FRANCIS
Respondent
GEODATA ENGINEERING PTY LTD
Other Party

FILE NO/S: CIV 1338 of 2019
BETWEEN: SALINI IMPREGILO S.P.A.
First Applicant
NRW PTY LTD
Second Applicant
AND
DAVID FRANCIS
Respondent
GEODATA ENGINEERING PTY LTD
Other Party

Catchwords:

Judicial review - Construction contract - Simultaneous adjudication - Criteria - Determination within time - Apprehension of bias - Issue estoppel - Unreasonableness

Legislation:

Construction Contracts Act 2004 (WA), s 30, s 31, s 32, s 34(2), s 36, s 41, s 44

Result:

Applications dismissed

Representation:

CIV 3152 of 2018

Counsel:

First Applicant	:	M R Collins
Second Applicant	:	M R Collins
Respondent	:	No appearance
Other Party	:	J M Healy

Solicitors:

First Applicant	:	Squire Patton Boggs
Second Applicant	:	Squire Patton Boggs
Respondent	:	No appearance
Other Party	:	Murcia Pestell Hillard

CIV 1338 of 2019

Counsel:

First Applicant	:	M R Collins
Second Applicant	:	M R Collins
Respondent	:	No appearance
Other Party	:	J M Healy

Solicitors:

First Applicant	:	Squire Patton Boggs
Second Applicant	:	Squire Patton Boggs
Respondent	:	No appearance
Other Party	:	Murcia Pestell Hillard

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

Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1
BGC Construction Pty Ltd v Citygate Properties Pty Ltd [2016] WASC 88
Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17
Briginshaw v Briginshaw [1938] HCA 34;(1938) 60 CLR 336
Clough Projects Australia Pty Ltd v Floreani [2018] WASC 101
Cornerstone Danks Street v Parkview Constructions [2014] NSWSC 866
Dain Pty Ltd v Shire of Peppermint Grove [2019] WASC 264
Day v Sanders [2015] NSWCA 324; (2015) 90 NSWLR 764
Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69
Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185
Duro Felguera Australia Pty Ltd v Samsung C & T Corporation [2018] WASCA 28; (2018) 52 WAR 323
Easy Stay Mining Accommodation Pty Ltd v Grounded Construction Group Pty Ltd [2018] FCA 519
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Ichthys LNG Pty Ltd v JKC Australia LNG Pty Ltd [2019] NTSC 71
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd [2011] NTCA 1; (2011) 29 NTLR 1
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Modscape Pty Ltd v Francis [2017] TASSC 55
Mohammadi v Bethune [2018] WASCA 98
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217
Pinnacle Construction Group Pty Ltd v Dimension Joinery & Interiors Pty Ltd [2018] NSWSC 894
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 138
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Samsung C & T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281
Sanders v City of South Perth [2019] WASC 226
Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145

ARCHER J:

Table of Contents

Introduction

The application for judicial review

The grounds

The issues

Legislation

Payment dispute and payment claim
The adjudication process under the Act

The adjudicator
Time limit for decision - dismissal or determination
Deemed dismissal

Determinations
Payment of adjudicator
The parties' costs
Simultaneous adjudications
Multiple applications in relation to the same dispute

Judicial review

Legal principles - reasonableness

Approach to statutory construction
The Second Determination

Simultaneous adjudication of the First and Second Applications (Grounds 1 and 2)

Power to adjudicate simultaneously
Did the Adjudicator adjudicate two disputes simultaneously?
If there was simultaneous adjudication, did the Adjudicator comply with the necessary preconditions?
If there was simultaneous adjudication, was this unreasonable? (Ground 2)

When was the Second Determination made and was it amended? (Ground 3)

Relevant provisions
The evidence
When was the Second Determination made? (Ground 3 first sentence)
Did the Adjudicator invalidly amend the Second Determination? (Ground 3 second and third sentences)
Conclusion on Ground 3

The Third Determination

Was the Third Application validly made? (Ground 1)

Relevant facts
Was the First Application dismissed by the Adjudicator's emails?

Is there a reasonable apprehension of bias in relation to the Third Determination? (Ground 2)

Legal principles
The relevant facts
The allegations

Conclusion

Was the Adjudicator's Costs Decision unreasonable? (Ground 5)

Do the costs under s 34(2) include an adjudicator's fees under s 44?
The structure of the decision

Conclusion

Was the Adjudicator's failure to consider the merits of a defence a jurisdictional error? (Ground 6)

Legal principles - issue estoppel in the Act

Conclusion

Ground 7

Conclusion

Annexure

ARCHER J:

Introduction[1]

[1] I gratefully acknowledge that what follows is taken from, or draws on, the comprehensive Statement of Agreed Facts provided by the parties prior to the hearing (Agreed Facts).

The applicants (Salini) seek judicial review of two decisions made by an adjudicator under the Construction Contracts Act 2004 (WA) (Act) in relation to payment disputes. The hearing was originally listed for a single day, 31 July 2019. It was not possible to complete the hearing on that day, and it continued on 10 and 11 September 2019.
In 2016, Salini engaged the Other Party (Geodata) to provide architectural, engineering and other design related services in relation to the development of the Forrestfield Airport Link Project (Contract). The Contract was a 'construction contract' within the meaning of that term in the Act.
Under the Contract, Geodata was able to claim payment for its work progressively by making progress claims (called interim payment applications or 'IPAs') at or after the 24th day of each month, supported by evidence of the amount claimed and showing the value of the deliverables achieved.
A dispute arose over two interim payment applications, IPA 23 and IPA 24. On 11 September 2018, Geodata made an application (First Application) under the Act for an adjudication of the dispute in relation to IPA 23. On 1 October 2018, Geodata made an application for an adjudication of the dispute in relation to IPA 24 (Second Application).
The Act permits multiple applications to be determined simultaneously in certain circumstances. Geodata sought to have the two applications determined simultaneously.
The respondent was appointed to be the adjudicator of each dispute (Adjudicator).
By s 31(2) of the Act, an adjudicator must either dismiss an application (under s 31(2)(a)) or determine it (under s 31(2)(b)) within a prescribed time, unless the parties agree to an extension of time. An adjudicator must dismiss an application if, among other things, he or she is satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time, or any extension of the prescribed time, is not sufficient for any other reason. If the adjudicator does not dismiss an application or determine it within the prescribed time (or within any consensual extension of time), the application will be taken to have been dismissed when the time elapses.
On 3 October 2018, the Adjudicator emailed the parties requesting, among other things, an extension of time to determine the First Application. The Adjudicator informed the parties that he could dismiss the application if he was satisfied that it was not possible to fairly make a determination because of the complexity of the matter or the prescribed time was not sufficient for any other reason. Salini refused to consent to an extension of time.
On 5 October 2018, the Adjudicator emailed the parties advising that he had 'decided to exercise the right of dismissal' and would 'formally do so' the following week unless Salini decided to grant the extension of time. Salini submits that, by the 5 October email, in the context of the previous email, the Adjudicator dismissed the First Application. Geodata says the Adjudicator was simply setting out what he intended to do and the fact the Adjudicator referred to the possibility that Salini might grant an extension of time demonstrates that he had not dismissed it at that point.
On 9 October 2018, the Adjudicator asked the parties to provide him with submissions as to whether Geodata had served its Second Application in accordance with s 26(1)(b) of the Act. That subsection requires an applicant to serve the application on each other party to the contract.
The prescribed time within which the First Application had to be dismissed or determined expired on 10 October 2018. The parties did not receive a determination on or before 10 October 2018. Therefore, unless the Adjudicator had dismissed the First Application by his email of 5 October 2018, it would be taken to have been dismissed on 10 October 2018 because the Adjudicator did not dismiss or determine it within the prescribed time. As I will later explain, the dispute as to whether the First Application was dismissed by the Adjudicator or taken to be dismissed due to the elapsing of time is relevant to the assessment of the validity of a third application made by Geodata.
To be determined within the prescribed time, the Second Application had to be determined on or before 29 October 2018. On that date, the Adjudicator advised the parties that he had made the determination, but would not release it until his fees were paid. Under the Act, an adjudicator has the power to refuse to communicate his or her determination until he or she has been paid. The Adjudicator advised Geodata of his fees in the early hours of the next morning. The same day, the Adjudicator's fees were paid and he emailed the parties a document in which his determination (Second Determination) was recorded (Second Determination Record). Salini submits that, although the Adjudicator advised the parties that he had made the determination on 29 October 2018, I should infer that was not true.
Salini contends in the alternative that, if the Adjudicator did make the Second Determination within the prescribed time, the Adjudicator amended the Second Determination after the prescribed time had elapsed, without satisfying the preconditions to the power to do so.
Under s 41 of the Act, an adjudicator cannot amend a determination unless the parties consent or the amendment is to correct an accidental slip or omission, or material arithmetic errors or descriptive mistakes, and is made either on the application of a party or, after notifying the parties, on the adjudicator's own initiative.
Under s 36 of the Act, where an adjudicator makes a determination under s 31(2)(b), the adjudicator is required to produce a 'decision' evidencing or recording the determination.[2] Section 36 requires the 'decision' to, among other things, be in writing and state the determination and the reasons for the determination. I will refer to the document required by s 36 as the 'Section 36 Record'. The Second Determination Record, which the Adjudicator emailed to the parties on 30 October 2018, appeared to meet the requirements of s 36.
[2] Duro Felguera Australia Pty Ltd v Samsung C & T Corporation [2018] WASCA 28; (2018) 52 WAR 323 [110] and see also Samsung C & T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281 [131].
There was evidence that the Second Determination Record had been amended on 30 October 2018, before it was emailed to the parties. The parties had not consented to the amendments, neither party applied for the amendments to be made, and the Adjudicator did not notify the parties he was going to make the amendments.
Salini contends that the amendments were therefore made without power. Central to Salini's contention is its assumption that amendments to the Second Determination Record were amendments to the Second Determination itself. Geodata submits that the only substantive amendments to the Second Determination Record were to other matters recorded in that document and not to the Second Determination itself. Geodata submits that the amendments to the Second Determination were minor and could not constitute jurisdictional error.
Salini further contends that the Adjudicator made a jurisdictional error by adjudicating the First Application and the Second Application simultaneously, when the preconditions to the power to do so had not been satisfied.[3] Salini also submits that the Adjudicator made a jurisdictional error in doing this because it was unreasonable, illogical or irrational. Geodata disputes that the Adjudicator adjudicated the Applications simultaneously.
[3] The preconditions are set out in s 32(3) of the Act, discussed later.
Returning to the sequence of events, on 7 November 2018, after the Second Determination had been made, Geodata made another application for adjudication (Third Application). The Third Application involved the same dispute that had been the subject of the First Application (IPA 23).
Under the Act, if an application for adjudication is dismissed or determined within the prescribed time or any extension of time, a party may not apply for another adjudication of the same dispute. A party may only apply for another adjudication of a dispute if the previous application had been taken to have been dismissed when the prescribed time or any extension of time had elapsed. Therefore, if the First Application had been dismissed by the Adjudicator, as Salini contends, the Third Application would have been invalid.
The Adjudicator was appointed to adjudicate the Third Application and made a determination (Third Determination). The Third Determination was recorded in a document that appeared to meet the requirements of s 36 (Third Determination Record).
Salini alleges that the Third Determination gave rise to an apprehension of bias.[4] Salini alleges that the apprehension arose from the Adjudicator's finding that he had the jurisdiction to adjudicate the Third Application because he had not dismissed the First Application. Salini submits that this might cause a fear that the Adjudicator had a conflict of interest or had prejudged the issue.
[4] Salini's ground of review, ground 2 of the application for judicial review in CIV 3152 of 2018 (Application for Judicial Review of the Third Determination), alleged an apprehension of bias and procedural unfairness. However, it became clear that Salini intended to allege only that an apprehension of bias gave rise to procedural unfairness, and did not intend to make any separate challenge by the inclusion of those words (see, for example, the particulars to ground 2 and Applicants' Outline of Submissions 23 August 2019 and dated that date (Salini's Third Written Submissions) [16]).
As to the feared interest, Salini submits that the Adjudicator, in finding that he did not dismiss the First Application, was, in effect, 'marking his own homework'.
As to the feared prejudgment, this was said to arise from something the Adjudicator had written in the Second Determination Record. In that document, the Adjudicator dealt with a submission by Salini that, because he had dismissed the First Application on the ground that it was too complex to determine within the prescribed time, he should dismiss the Second Application for the same reason. The Adjudicator rejected the premise that he had dismissed the First Application on that ground (or indeed at all), saying the First Application had been taken to be dismissed by the elapsing of time.[5]
[5] The Adjudicator also rejected Salini's submission that the Second Application was too complex to determine within the prescribed time.
Salini's application for judicial review also included an allegation that the Adjudicator should have been disqualified from acting as he had a material personal interest.[6] Salini withdrew this ground after the first day of hearing.[7]
[6] Ground 3 of the Application for Judicial Review of the Third Determination.
[7] ts 191 ‑ 192.
One of Salini's defences to the Third Application was a defence of negative variation. In his reasons for the Third Determination, the Adjudicator said that the principle of issue estoppel prevented him from considering this defence, as he had rejected that defence in making the Second Determination. Salini submits that issue estoppel did not apply, and the failure to consider the defence on the merits was a jurisdictional error. Salini had also alleged that this meant the Third Determination was legally unreasonable,[8] but withdrew this allegation on the second day of hearing.[9]
[8] It was alleged to be an alternative basis for alleging jurisdictional error in ground 6 of the Application for Judicial Review of the Third Determination Application.
[9] ts 235 ‑ 238.
In the Third Application, Geodata sought costs against Salini on the basis that its conduct had been unreasonable, frivolous or vexatious. Ordinarily, each party to an adjudication bears its own costs. However, an adjudicator has the power, under s 34(2) of the Act, to decide otherwise if he or she is satisfied that a party incurred costs because of frivolous or vexatious conduct by the other party. In its response, Salini sought costs against Geodata on the ground that Geodata's conduct had been frivolous or vexatious. The Adjudicator decided that Salini was to pay the full amount of the Adjudicator's fees under s 34(2) (Costs Decision).
Salini's application for judicial review alleged that it was not afforded procedural fairness in relation to the Costs Decision.[10] Salini withdrew this allegation after the first day of hearing.[11]
[10] Ground 4 of the Application for Judicial Review of the Third Determination Application.
[11] See Salini's Third Written Submissions [18] and ts 190 ‑ 191.
Ground 5 of Salini's application for judicial review alleged that the Adjudicator's decision that Salini was to pay Geodata's costs of the adjudication under s 34(2) was unreasonable.
Salini's initial contention was that the outcome was legally unreasonable; that it was legally unreasonable to conclude that its conduct had been frivolous and vexatious. During the first day of hearing, it became apparent that Salini did not intend to demonstrate from the evidence why this was so.[12]
[12] See Applicants' Outline of Submissions dated 7 May 2019 (Salini's First Written Submissions) [70], [72] and [73], Applicants' Outline of Reply Submissions dated 11 June 2019 (Salini's Second Written Submissions) [40] ‑ [42] and ts 144 ‑ 150.

In submissions filed following the first day of hearing, Salini advanced submissions that did not relate to ground 5 as it was cast.[13]
[13] Salini's Third Written Submissions [19] ‑ [22].
Ground 5 sought to challenge a decision that Salini was to pay Geodata's costs. Salini had originally submitted that it was legally unreasonable to conclude that its conduct had been frivolous and vexatious.[14] In its further submissions, Salini sought to challenge the Adjudicator's decision to recover all of the Adjudicator's fees from Salini, not because it was legally unreasonable to conclude that its conduct had been frivolous and vexatious, but because Salini submitted that s 34(2) did not give the Adjudicator power to make orders in relation to the payment of his own fees. Salini submitted that s 34(2) is not concerned with an adjudicator's fees, but only with a party's costs.[15] While, as I will later explain, I consider that a party's costs include its liability to pay the adjudicator's fees, it can be seen that the basis on which Salini challenged the Costs Decision had fundamentally changed.
[14] Salini's First Written Submissions [72] ‑ [73].
[15] See Salini's Third Written Submissions [19] ‑ [22] and ts 242 ‑ 246.
Salini did not accept its new argument would require an amendment to ground 5. In my view, it did. However, as it could not have caused any prejudice to Geodata, I allowed Salini to amend ground 5 to substitute the new challenge.[16]
[16] ts 238 ‑ 240.
Salini's final ground of review in relation to the Third Determination was that it was unreasonable. During the second day of hearing, Salini explained that it was intended to capture the accumulation of the errors alleged in the other grounds if they were found not to be jurisdictional errors.

The application for judicial review

Salini first commenced judicial review proceedings in relation to the Third Determination.[17] Subsequently, Salini commenced judicial review proceedings in relation to the Second Determination.[18] It was agreed that the two proceedings would be heard together.
[17] CIV 3152 of 2018.
[18] CIV 1338 of 2019.
The Adjudicator filed a notice of intention to abide, save as to costs.

The grounds

The grounds of review in relation to the Second Determination are:
1.The Respondent committed jurisdictional error because he did not have the power to adjudicate simultaneously 2 or more payment disputes between the same parties (i.e. involving IPA‑23 (the September Application) and IPA‑24 (the October Application)) without obtaining the parties' consent and satisfying the balance of the statutory criteria contained in section 32(3)(b) of the Construction Contracts Act 2004 (WA) (Act), alternatively, without satisfying the statutory criteria contained in section 32(3)(c) of the Act.
Particulars
(a)In September 2018, the Respondent was appointed to adjudicate the September Application, which required the Respondent to provide his determination by 10 October 2018, absent an extension of time.
(b)In October 2018, the Respondent was appointed to adjudicate the October Application while the September Application was on foot, and purported to adjudicate the October Application without obtaining the consent of the parties under section 32(3)(b) of the Act or satisfying himself that he could adjudicate the payment disputes simultaneously and consistent with the object and purpose of the adjudication process (section 30)).
(c)The Applicants did not consent to the Respondent adjudicating the October Application. The Other Party initially consented, before withdrawing its consent.
(d)The Respondent requested the consent of the Applicants and the Other Party for an extension of time to determine the September Application, in part due to the complexity of the matter, and because the prescribed time was not sufficient. The Applicants denied the request and refused consent.
(e)The Respondent dismissed the September payment claim (IPA‑23) under section 31(2)(a)(iv) of the Act: Respondent correspondence dated 3 and 5 October 2018. Alternatively, the Respondent neither dismissed nor determined the September Application within the prescribed timeframe.
(f)Insofar as it may be asserted that section 32(3)(b) should be read subject to section 32(3)(c), which is denied, the Respondent was required, in the exercise of his discretion, to be satisfied that he could simultaneously adjudicate the payment disputes (September Application and October Application) in accordance with section 30 of the Act. In the circumstances, the Respondent was not satisfied.
2.The Respondent's decision to adjudicate the September and October Applications, whether under section 32(3)(c) of the Act or otherwise, involved jurisdictional error as it was unreasonable, alternatively, illogical or irrational.
Particulars
(a)The Applicants repeat the particulars to Ground 1.
(b)It was a pre‑condition to the exercise of the Respondent's jurisdiction to adjudicate more than one payment dispute between the parties simultaneously under section 32(3)(c), that the Respondent be satisfied that doing so, will not adversely affect his ability to adjudicate the payment disputes in accordance with section 30 of the Act.
(c)On 3 October 2018, the Respondent requested the consent of the Applicants and the Other Party for an extension of time to determine the September Application, in part due to the complexity of the matter, and because the prescribed time was not sufficient. The Applicants denied the request and refused consent. On 5 October 2018, the Respondent dismissed the September Application under section 31(2)(a)(iv) of the Act.
(d)It may be inferred from the Respondent's request and response that he was not satisfied that he could adjudicate more than one payment dispute between the parties simultaneously, without adversely affecting his ability to adjudicate the payment disputes in accordance with section 30 of the Act: Respondent correspondence dated 3 and 5 October 2018.
(e)The Respondent's decision to adjudicate simultaneously 2 or more payment disputes between the same parties (i.e. the September Application and the October Application) without obtaining the parties' consent and satisfying the balance of the statutory criteria contained in section 32(3)(b) of the Act, alternatively, without satisfying the statutory criteria contained in section 32(3)(c) of the Act, involved a failure to take into account mandatory relevant considerations, alternatively, was not rational or logical and was so unreasonable that no reasonable person could have made that decision because at the same time as adjudicating the October Application, the Respondent was informing the parties that he needed more time to determine the September Application.
(f)The Respondent's adjudication of the September and October Applications involved the improper exercise of power conferred by section 32(3)(b), alternatively, section 32(3)(c) of the Act.
3.The Respondent did not dismiss or determine the October Application within the prescribed time required by section 31(2) of the Act with the consequence that under section 31(3) of the Act, the determination is taken to have been dismissed when the time elapsed and is otherwise of no effect. Further, or in the alternative, if the Respondent's determination of the October Application was made within the prescribed time, being on or before 29 October 2018 (Prescribed Time) (which is denied), the Respondent subsequently purported to amend his determination on 30 October 2018 (after the Prescribed Time), without obtaining the consent of the parties, as required under section 41(1)(a) of the Act, which was a pre‑condition to the exercise of the Respondent's jurisdiction to subsequently amend his determination, and accordingly, involved jurisdictional error. Further, the purported amendment of the Respondent's determination did not comprise a correction of any of the matters set out in section 41(2) of the Act, and the Respondent did not notify the parties of his intention to do so. As a result, the Respondent lacked jurisdiction to correct his determination of the October Application under section 41(2) of the Act.
Particulars
(a)The Respondent was required to either dismiss or determine the October Application by the Prescribed Time.
(b)The Respondent did not deliver his determination of the October Application to the parties by the Prescribed Time.
(c)The Respondent delivered his determination in respect of the October Application on 30 October 2018, which was after the Prescribed Time.
(d)The determination refers to events that occurred on 30 October 2018, after the Prescribed Time.
(e)The Respondent was required under section 41(1) of the Act to obtain the consent of the parties if he wanted to amend his determination. The Respondent did not seek nor obtain the parties consent to amend his determination.
(f)The Respondent made his determination after the Prescribed Time, and consequently, pursuant to section 31(3) of the Act, the determination is taken to have been dismissed and is otherwise of no effect.
(g)Alternatively, the Respondent has committed jurisdictional error by purporting to amend his determination without obtaining the consent of the parties as required under section 41(1) of the Act.
(h)Alternatively, the Respondent has committed jurisdictional error by purporting to correct his determination under section 41(2) of the Act, in circumstances where he has no power or entitlement to do so.
Omitting the grounds that were withdrawn, the grounds of review in relation to the Third Determination are:
1.The Respondent committed jurisdictional error because there was no payment dispute before him for the purposes of sections 6, 25, 26 and 31(2)(b) of the Construction Contracts Act.
Particulars
The Respondent had previously dismissed the relevant payment claim under section 31(2)(a)(iv) of the Act: Respondent correspondence dated 3 and 5 October 2018.
2.The Respondent's determination of the payment dispute under sections 6, 25, 26 and 31(2)(b) of the Construction Contracts Act or otherwise, gave rise to a reasonable apprehension of bias and procedural unfairness[19] because the Respondent had previously adjudicated (dismissed on the Applicants' case - which the Other Party disputes) an application regarding the same payment dispute in an earlier adjudication. In the circumstances:
[19] As noted earlier, Salini intended to allege only that an apprehension of bias gave rise to procedural unfairness, and did not intend to make any separate challenge by the inclusion of those words.
(1)the Respondent's determination was vitiated by jurisdictional error; alternatively,
(2)the determination should be quashed as the Respondent made his determination without the Applicants being accorded procedural fairness.
Particulars
(a)The Respondent had previously dismissed the relevant payment claim under section 31(2)(a)(iv) of the Act: Respondent correspondence dated 3 and 5 October 2018.
(b)The Respondent disputed whether he had previously dismissed the relevant payment claim under section 31(2)(a)(iv) of the Act.
(c)The Respondent's conduct involved a reasonable apprehension of bias.
…
5.The Respondent's determination that the Applicants were to pay the Other Party's costs of the adjudication under section 34(2) of the Construction Contracts Act was unreasonable, alternatively, illogical or irrational, such that the determination (or that part concerning the costs' determination) amounted to jurisdictional error.
6.The Respondent failed to perform his function under section 31(2)(b) of the Act, which amounted to jurisdictional error, alternatively, the Respondent's determination of the payment dispute under section 31(2)(b) of the Construction Contracts Act, as augmented by section 32, was unreasonable, alternatively, illogical or irrational, such that it amounted to jurisdictional error.
Particulars
(a)The Respondent determined that he was in effect, bound by his second determination of 30 October 2018, in which he determined that the Applicants had no entitlement to a negative variation. In the circumstances, the Respondent did not determine on the balance of probabilities whether a party to the payment dispute was liable to make a payment as required under section 31(2)(b) of the Act.
(b)The Respondent's second determination of 30 October 2018 was void and of no effect.
7.The Respondent's determination of the payment dispute was unreasonable, alternatively, illogical or irrational, such that it amounted to jurisdictional error.

The issues

In relation to the Second Determination, the issues are:
(1)Did the Adjudicator purport to simultaneously adjudicate the payment disputes in the First and Second Applications? (Premise for grounds 1 and 2);
(2)If the answer to question 1 is yes:
(a)Was the Adjudicator required to satisfy the statutory criterion in s 32(3)(b) in order to simultaneously adjudicate those payment disputes or was it sufficient for the Adjudicator to satisfy the statutory criterion in s 32(3)(c)? (This is a construction question relevant to the next question);
(b)Did the Adjudicator satisfy the necessary criteria?
(c)If the Adjudicator did not satisfy the necessary criteria:
(i)did his decision to simultaneously adjudicate those payment disputes involve jurisdictional error (Ground 1);
(ii)was the Adjudicator's simultaneous adjudication of the two payment disputes unreasonable? (Ground 2);
(3)Did the Adjudicator determine the Second Determination within the prescribed time under s 31(2) of the Act, namely, on or before 29 October 2018? (Ground 3 first sentence);
(4)If the answer to question 3 is yes, did the Adjudicator breach the Act by making amendments to the Second Determination Record? (It is assumed in the second and third sentences of Ground 3 that an amendment to the Second Determination Record was an amendment to the determination);
(5)If the answer to question 4 is yes, was the breach a jurisdictional error? (Ground 3 second and third sentences);
(6)If the answer to question 5 is yes, can the offending portion be severed?
In relation to the Third Determination, the issues are:
(1)Did the Adjudicator dismiss the First Application (in which case, he would not have had jurisdiction to adjudicate the Third Application)? (Ground 1);
(2)Did the Adjudicator's adjudication of the Third Application give rise to a reasonable apprehension of bias because he had to consider whether he had dismissed the First Application in order to determine whether he had jurisdiction to determine the Third Application and:
(a)this required him to, in effect, 'mark his own homework'? (This is the allegation in Ground 2 of apprehended bias on the basis of conflict of interest);
(b)he had already found, in the Second Determination Record, that he had not dismissed the First Application? (This is the allegation in Ground 2 of apprehended bias on the basis of prejudgment);
(3)Was the Costs Decision unreasonable because the Adjudicator had purported to make it under s 34(2)? (Recasting of Ground 5);
(4)Did the Adjudicator's conclusion that he was, in effect, bound by the finding he made in relation to the Second Determination that Salini had no entitlement to a negative variation (as a result of which he did not consider the merits of that defence afresh in the Third Determination Record) involve jurisdictional error? (Ground 6);
(5)Was the Third Determination unreasonable due to the accumulation of non‑jurisdictional errors? (Ground 7).
It is convenient to set out the legislative framework and relevant legal principles before dealing with the issues.

Legislation

Part 3 of the Act provides for the adjudication of payment disputes arising under construction contracts.
The object of an adjudication process is to determine payment disputes fairly and as quickly, informally and inexpensively as possible.[20]
[20] Act s 30.
An adjudicator's determination does not finally determine the rights of the parties. A party is not prevented from instituting proceedings before an arbitrator or other person or a court or other body in relation to a dispute arising under the contract, including a dispute that has, or is being, adjudicated under pt 3.[21]
[21] Act s 45(1).
In Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd,[22] Pullin JA (Newnes and Murphy JJA agreeing) said (citations omitted):
The broad purpose of the Act, insofar as it relates to payment disputes, is to ensure that, in construction contracts, progress claims are paid on time and that principals obliged to pay do not act as their own judge and jury and hold up payment on their own assertion that they have a defence warranting refusal to pay … It is a 'pay now, argue later' system, with the primary aim of keeping the money flowing by enforcing timely payment … If a payment dispute arises, then the Act provides for a system of rapid and summary adjudication which is conducted without any oral hearing. If the adjudicator, having received written submissions, makes a determination that the payment has to be made, then that determination gives rise to a debt 'presently due' and payable by the principal.
[22] Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 [55].
In Duro Felguera Australia Pty Ltd v Samsung C & T Corporation,[23] Buss P and Murphy JA said:
[I]t is an Act, according to the long title, 'to provide a means for adjudicating payment disputes arising under construction contracts'. In relation to the adjudication of 'payment disputes' the Act is plainly beneficial legislation. Adjudicators may, but need not, be legally qualified and the prospect of jurisdictional error occurring at times is perhaps unavoidable. In this context, and given the relatively short time frames under which the adjudicator must work, and the 'primary aim of keeping the money flowing down the contractual chain',[24] the Parliamentary intention to be inferred is that decisions of adjudicators, to the extent that they deal with the adjudication of a 'payment dispute', within the meaning of s 31(2)(b), are to have the fullest operation.

Payment dispute and payment claim

[23] Duro [149].

[24] Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 [87].

By s 6(1)(a), and subject to s 6(2), a 'payment dispute' arises if, among other things, a payment claim is rejected or wholly or partly disputed. A 'payment claim':[25]
[25] Act s 3.
(a)means a claim made under a construction contract ‑
(i)by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract; or
(ii)by the principal to the contractor for payment of an amount in relation to the performance or non performance by the contractor of its obligations under the contract;
and
(b)includes a payment claim that includes matters covered by a previous payment claim.
By s 6(2), a payment dispute will not arise to the extent to which the payment claim includes matters that were the subject of an application for adjudication that has been dismissed or determined under s 31(2).[26]

The adjudication process under the Act

[26] It is apparent from the reference to s 31(2) that this does not include a matter that was deemed to be dismissed by the elapsing of time (which occurs under s 31(3)). This is confirmed by s 37(2).

A party may apply to have a payment dispute adjudicated if it arises under a construction contract.[27] The application must be prepared and served within 90 business days of the dispute arising.[28] Other parties have 10 business days to serve their response.[29]

The adjudicator

[27] Act s 25.

[28] Act s 26.

[29] Act s 27.

An 'appointed adjudicator', in relation to a payment dispute, means the registered adjudicator who, having been appointed under pt 3 to adjudicate the dispute, has been served with the application for adjudication.[30] Adjudicators may be appointed in one of three ways.[31]
[30] Definition in s 3 of the Act.
[31] See s 26 and s 28 of the Act and the definition of 'appointed adjudicator' in s 3.
First, if the parties have appointed a registered adjudicator, and that person consents, service of the application on that person makes him or her the 'appointed adjudicator'.[32]
[32] See s 26(1)(c)(i) of the Act and the definition of 'appointed adjudicator' in s 3.
Second, if the parties have appointed a 'prescribed appointor',[33] the application is first served on that person.[34] Then, the appointor must, within five business days, appoint a registered adjudicator to adjudicate the payment dispute. The person appointed becomes the 'appointed adjudicator'.[35]
[33] A 'prescribed appointer' is defined, in s 3 of the Act, to mean a person prescribed by the regulations.
[34] See s 26(1)(c)(ii) of the Act.
[35] Section 28(1) and the definition of 'appointed adjudicator' in s 3.
Third, if the parties have not appointed an adjudicator or an appointor, the applicant may serve its application on a prescribed appointor.[36] Again, the appointer must appoint a registered adjudicator who then becomes the 'appointed adjudicator'.[37]
[36] See s 26(1)(c)(iii) of the Act.
[37] Section 28(1) and the definition of 'appointed adjudicator' in s 3.
An appointed adjudicator who has a material personal interest in the payment dispute is disqualified from adjudicating the dispute.[38]

Time limit for decision - dismissal or determination

[38] Act s 29(1).

By s 31(2), an appointed adjudicator must, within the 'prescribed time' or any extension of time under s 32(3)(a), either dismiss the application (without making an assessment of its merits) or determine the matter on the balance of probabilities.[39] A 'determination' means a determination, made on an adjudication under pt 3, of the merits of a payment dispute.[40]
[39] Section 31(2) is set out in full under the heading 'Power to adjudicate simultaneously'.
[40] Definition in s 3 of the Act.
The 'prescribed time' is 10 business days after the receipt of the response or, if no response is received, 10 business days after the last date upon which a response is required to be served.[41] Section 32(3)(a) permits the time limit to be extended by consent.

Deemed dismissal

[41] Act s 31(1).

Section 31(3) covers the situation where an adjudicator fails to comply with the statutory requirement in s 31(2). It provides that, if an application is not dismissed or determined within the prescribed time, or any consensual extension of time, it is taken to have been dismissed.
Section 31(3) is a provision for the benefit of the parties, not a 'third option' open to the adjudicator. Section 31(2) requires an adjudicator to, within the prescribed time (or any consensual extension of that time), either dismiss the application without making a decision of its merits or determine the matter. These are the only options open to an adjudicator. Section 31(3) covers the situation where an adjudicator fails to comply with the requirements in s 31(2).

Determinations

An adjudicator must act informally, and, if possible, make the determination on the basis of the application, any response and any attachments to those documents.[42] An adjudicator is not bound by the rules of evidence.[43]
[42] Act s 32(1)(a).
[43] Act s 32(1)(b).
An adjudicator may request a party to make written submissions (or further written submissions) or to provide information or documentation.[44]
[44] Act s 32(2)(a).
An adjudicator cannot amend a determination unless the parties consent or, in relation to accidental slips or omissions, or material arithmetic errors or descriptive mistakes, if a party applies for an amendment or the adjudicator first notifies the parties.[45]
[45] Act s 41.
Where an adjudicator makes a determination under s 31(2)(b), the adjudicator is required to produce a 'decision' evidencing or recording the determination. Section 36 requires the 'decision' to, among other things, be in writing and state the determination and the reasons for the determination. I refer to the document required by s 36 as the 'Section 36 Record'.
Later, in the discussion of ground 3 of the application for judicial review of the Second Determination, I analyse the legislative requirements relating to a determination in more detail.[46]

Payment of adjudicator

[46] See under the heading 'When was the Second Determination made and was it amended? (Ground 3)'.

An adjudicator is entitled to be paid for his or her work and is entitled to refuse to communicate his or her determination of a payment dispute until he or she has been paid.[47]

The parties' costs

[47] Act s 44.

Generally, the parties bear their own costs in relation to an adjudication. However, if an appointed adjudicator is satisfied that a party incurred costs of the adjudication because of frivolous or vexatious conduct on the part of, or unfounded submissions by, another party, the adjudicator may decide that the other party must pay some or all of those costs.[48]

Simultaneous adjudications

[48] Act s 34.

An adjudicator may adjudicate payment disputes simultaneously in certain circumstances.[49]

Multiple applications in relation to the same dispute

[49] Act s 32(3)(b) and (c). This is discussed under the heading 'Power to adjudicate simultaneously'.

If an application for adjudication is dismissed or determined within the prescribed time or any extension of time, a party may not apply for another adjudication of the same dispute.[50]
[50] Act s 6(2), s 41(1)(b).
If, however, an application is not dismissed or determined within time, and is taken to have been dismissed by the elapsing of time, a further application for adjudication of the same dispute may be made within 20 business days after the previous application is taken to have been dismissed.[51]
[51] Act s 37(2).

Judicial review

A determination made by an adjudicator under s 31(2)(b) of the Act is amenable to judicial review for jurisdictional error.[52]
[52] Perrinepod [96], [118].
In dealing with the application for judicial review, the court's jurisdiction does not extend to engaging in a review of the merits of the decision. The court's jurisdiction is confined to determining whether the Adjudicator made a jurisdictional error.

In Re Refugee Review Tribunal; Ex parte Aala,[53] Hayne J explained:
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[53] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [88].
As was recently explained by the High Court in Hossain v Minister for Immigration and Border Protection,[54] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.
[54] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision‑maker to embark on the decision‑making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[55]
[55] Hossain [23], [27] (Kiefel CJ, Gageler & Keane JJ).
It is ordinarily an implied condition that the decision‑maker proceed by reference to 'correct legal principles, correctly applied'.[56] It is also ordinarily an implied condition that the decision‑maker comply with the standard of legal reasonableness.[57]
[56] Hossain [29].
[57] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle & Gordon JJ), and [134] (Edelman J).
Second, if the decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction.[58]
[58] Hossain [24], [27].
In Hossain, the plurality said:
[A] statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non‑compliance. … [The] threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.[59]

Legal principles - reasonableness

[59] Hossain [29] ‑ [30]. See also Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

In Minister for Immigration and Border Protection v Eden,[60] the Full Court of the Federal Court summarised the relevant principles (citations omitted):
First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision‑making.
Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an 'outcome focused' conclusion without any specific jurisdictional error being identified.
…
Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of 'decisional freedom' within which a decision‑maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.
Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision‑making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.
Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.
Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. … The expressions that have been utilised include decisions which are 'plainly unjust', 'arbitrary', 'capricious', 'irrational', 'lacking in evident or intelligible justification', and 'obviously disproportionate'. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a 'checklist' exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
[60] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 [58] ‑ [60], [62] ‑ [65], cited by Buss P in Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145 [172].
In Pinnacle Construction Group Pty Ltd v Dimension Joinery & Interiors Pty Ltd,[61] Stevenson J noted '[i]t has been said that the time limits under the [similar New South Wales] Act are "brutally fast", that the Act provides a form of "rough justice" and that rights under the Act are to be determined informally, summarily and quickly'. His Honour said 'it would require a most extraordinary case for a court to find an adjudicator's decision to be unlawful because it is irrational or fails to disclose a logical connection between the findings made and the evidence'. Salini accepted that this statement applied to the Western Australian Act.[62]
[61] Pinnacle Construction Group Pty Ltd v Dimension Joinery & Interiors Pty Ltd [2018] NSWSC 894 [89] ‑ [90].
[62] ts 74 and 76.

Approach to statutory construction

As was recently said by the Court of Appeal in Mohammadi v Bethune,[63] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.
[63] Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].

The Second Determination

Simultaneous adjudication of the First and Second Applications (Grounds 1 and 2)

Power to adjudicate simultaneously

Section 32(3) provides:
An appointed adjudicator may ‑
(a)with the consent of the parties, extend the time prescribed by section 31(2) for making a determination;
(b)with the consent of the parties, adjudicate simultaneously 2 or more payment disputes between the parties;
(c)adjudicate a payment dispute simultaneously with one or more other payment disputes if satisfied that doing so will not adversely affect the adjudicator's ability to adjudicate the disputes in accordance with section 30.
Section 32(4) allows an adjudicator simultaneously adjudicating two or more disputes to take into account information received in relation to one dispute in the adjudication of the other(s).
I will refer to the criterion in s 32(3)(b) as the 'Consent Criterion' and the criterion in s 32(3)(c) as the 'Object Criterion'. I will refer to them collectively as the 'Criteria'.
The Act does not define what it means to 'adjudicate simultaneously'. The ordinary meaning of 'simultaneously' is at the same time. I would construe 'adjudicate simultaneously' as meaning where an adjudicator adjudicates a dispute during a period which overlaps the period in which the adjudicator is adjudicating another dispute.
Therefore, to determine whether two disputes were adjudicated simultaneously, it is necessary to determine when the adjudication of each began and ended. The Act does not expressly define when 'adjudication' begins.
Salini's submissions on this issue were fluid.
Salini initially contended that adjudication begins at the moment of appointment. Salini submitted that an adjudicator will adjudicate two disputes simultaneously when there is a temporal overlap in the periods between the adjudicator's appointment and the end of the prescribed time in respect of each dispute. Geodata submitted that this construction was unworkable. I agree. In particular, this construction would mean that, if an adjudicator was appointed to adjudicate a dispute at a time when he or she was already adjudicating another dispute, the adjudicator would, at the moment of appointment, be adjudicating simultaneously in breach of s 32(3). It is highly unlikely this was intended.[64]
[64] See also Ichthys LNG Pty Ltd v JKC Australia LNG Pty Ltd [2019] NTSC 71 [21] ‑ [22].
In apparent recognition of this, Salini withdrew its first construction. Instead, Salini contended that an adjudication begins once the adjudicator does anything under pt 3 of the Act. In particular, Salini contended that 'adjudicating' encompassed a decision that the application should be dismissed under s 31(2)(a) without a determination of the merits.[65]
[65] See ts 311 ‑ 314.
I do not accept this. In my view, as I will explain, adjudicating means evaluating and determining the merits of a dispute.

Legislative provisions

The Act defines 'adjudication' to mean 'the adjudication of a payment dispute in accordance with Part 3'.
The heading to pt 3 is 'Adjudication of disputes'. The division headings are:
Division 1 - Preliminary
Division 2 - Commencing adjudication
Division 3 - The adjudication process
Division 4 - Effect of determinations
Division 5 - Enforcing determinations
Division 6 - General
Part 3 of the Act, and div 3 in particular, distinguishes between a 'determination' and a 'dismissal'.[66]
[66] See, in particular, s 31(2), 36, 37 and 41. As to s 46(3), see Duro [113] and, in relation to the similar provision in the Northern Territory Act, K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd [2011] NTCA 1; (2011) 29 NTLR 1 [135].
Section 31(2) provides:
(2)An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) -
(a)dismiss the application without making a determination of its merits if -
(i)the contract concerned is not a construction contract; or
(ia)the applicant gives written notice, to the adjudicator and each other party to the dispute, that they wish to withdraw the application; or
(ii)the application has not been prepared and served in accordance with section 26(1) and (2)(b) and (c); or
(iia)the application has not been prepared in accordance with section 26(2)(a), unless the adjudicator is satisfied that the application complies with section 26(2)(a) sufficiently for the adjudicator to commence adjudicating the dispute; or
(iii)an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or
(iv)satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason;
(b)otherwise, determine on the balance of probabilities whether any party to the payment dispute is liable to make a payment, or to return any security and, if so, determine -
(i)the amount to be paid or returned and any interest payable on it under section 33; and
(ii)the date on or before which the amount is to be paid, or the security is to be returned, as the case requires.

As stated in s 31(2)(a), a 'dismissal' is a dismissal of an application without making an assessment of its merits. By s 3, 'determination' means a determination, made on an adjudication under pt 3, of the merits of a payment dispute.[67]
[67] Definition in s 3 of the Act.
The power (and obligation) to dismiss under s 31(2)(a) is a separate and distinct function to the power under s 31(2)(b). An application must be dismissed if any of the matters in s 31(2)(a)(i)‑(iv) exist. The proper exercise (or non‑exercise) of the function in s 31(2)(a) determines whether s 31(2)(b) has any application. An adjudicator may not determine an application on its merits under s 31(2)(b) if it is required to be dismissed under s 31(2)(a). If an adjudicator purported to proceed to determine an application which ought to have been dismissed, the adjudicator would be acting outside his or her jurisdiction.[68]
[68] Perrinepod [112] ‑ [115].
Applications under pt 3 of the Act are applications for adjudication of payment disputes.[69] Dismissing an application is to dismiss an application for adjudication. By contrast, a determination is a determination of the merits 'made on an adjudication'.[70]
[69] See, in particular, s 25 and s 26 of the Act.
[70] Definition in s 3 of the Act.
Finally, s 30 of the Act, in div 3 of pt 3, defines the object of an adjudication of a payment dispute as being to determine the dispute fairly and as quickly, informally and inexpensively as possible.[71]

Authorities

[71] And see Samsung [123].

The parties cited two authorities on the meaning of 'adjudicate'.
The first is Samsung C & T Corporation v Duro Felguera Australia Pty Ltd,[72] a decision of the Western Australian Court of Appeal. In that case, the court did not expressly identify the meaning of adjudication. However, it implicitly considered it to mean determining the merits of a dispute as distinct from a dismissal of an application.[73]
[72] Samsung C & T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281.
[73] Samsung [121] ‑ [129], in particular, [129] (if not dismissed under s 31(2)(a), then '[w]here the adjudicator properly enters into the adjudication of the payment dispute, the adjudicator must, 'if possible', make the determination on the basis of the applicant's materials[73] and the other party's responsive materials (if any)'). See also at [161] ‑ [163] and [167] ‑ [170], in particular [167] (if the condition in s 31(2)(a)(i) is met, 'then there will be no payment dispute to adjudicate').
The second is Ichthys LNG Pty Ltd v JKC Australia LNG Pty Ltd,[74] a decision of the Supreme Court of the Northern Territory. In that case, Barr J was not satisfied that the adjudicator had adjudicated two disputes simultaneously. This was because there was no evidence that the adjudicator had taken any steps in relation to the second payment dispute before completing the first. His Honour held that the question of when an adjudication is occurring is a question of fact.[75]
[74] Ichthys LNG Pty Ltd v JKC Australia LNG Pty Ltd [2019] NTSC 71.
[75] Ichthys [21].
His Honour said, in effect, that the adjudicator in that case had commenced to adjudicate the second dispute when he made inquiries to establish whether the application had to be dismissed.[76] However, this conclusion was not determinative of the outcome, as the inquiries had been made the day after the first application had been determined. There was no evidence that any work had been done on the second application prior to that date.[77] Further, his Honour's reasons did not include any analysis as to why 'adjudication' should be interpreted to include work done in relation to the dismissal function. For these reasons, I do not consider that I must be satisfied that Barr J was 'plainly wrong'[78] before rejecting the proposition that 'adjudication' includes such work.
[76] Ichthys [25].
[77] Ichthys [26] ‑ [27].
[78] Duckworth v Water Corporation [2012] WASC 30; (2012) 261 FLR 185 [31] (Edelman J).
I also raised with the parties a decision of the Northern Territory Court of Appeal, K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd.[79] Similarly to Samsung, the court in K & J Burns did not expressly identify the meaning of adjudication, but implicitly considered it to mean determining the merits of a dispute as distinct from a dismissal of an application.[80]

Analysis

[79] K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd [2011] NTCA 1; (2011) 29 NTLR 1.

[80] See, for example, K & J Burns [30] and [56] ('The right to apply for adjudication, being a conditional right, is lost when the [time limit] condition is not satisfied').

The ordinary meaning of 'adjudicate' is to make a decision. However, in the context of the Act, 'adjudicate' should not be construed as limited to only the moment at which the decision is made. Neither party contended otherwise.
As I have said, in my view, adjudicating means evaluating and determining the merits of a dispute.
This construction is supported by s 30 of the Act, which defines the object of an adjudication of a payment dispute as being to determine the dispute fairly and as quickly, informally and inexpensively as possible.[81]
[81] And see Samsung [123].
It is further supported by the fact that dismissing an application is to dismiss an application for adjudication. A dismissal under s 31(2)(a) is more naturally understood as a refusal to adjudicate, rather than as part of an adjudication.
Accordingly, in my view, an adjudication will begin when the adjudicator commences evaluative work in relation to the merits of the dispute. The time at which that evaluation of the merits occurs will be entirely fact dependent. However, by reason of the statutory regime, it cannot be before the adjudicator is appointed.
Not all work will be evaluative work in relation to the merits of a dispute. For example, an adjudicator may seek an extension of time, make enquiries as to whether the parties would consent to simultaneous adjudications under s 32(3)(b), and contemplate the exercise of his or her discretion under s 32(3)(c). An adjudicator may undertake other administrative tasks, such as seeking a deposit for his or her anticipated costs of the adjudication under s 44(8).
Making a decision under s 31(2)(a) as to whether the application must be dismissed is not evaluative work in relation to the merits of a dispute.
Further, the decision as to whether any of the matters in s 31(2)(a) exist (and therefore whether the application must be dismissed) is logically to be treated as preceding the evaluation of the merits. It is something that must occur before an adjudicator is permitted to proceed to determine an application on the merits. In my view, it must occur before the adjudication can be said to have begun.
An adjudicator will cease to adjudicate a dispute when he or she stops evaluating the merits. This will usually be when the adjudicator makes a determination. An adjudicator may also cease to adjudicate a dispute if the adjudicator stops evaluating the merits before the period elapses. In addition, if the prescribed period (or any extension of time) elapses without a determination having been made, the adjudicator could not be said to be adjudicating after that time.
Therefore, in my view, an adjudicator is adjudicating a dispute from the time at which he or she commences an evaluation of the merits of that dispute up until the time at which the adjudicator stops evaluating the merits.[82] I will refer to this as the 'period of adjudication'.
[82] This will usually be the time of the determination or, if no determination is made, the end of the prescribed time (or any extension of time) in respect of that dispute.
An adjudicator will adjudicate two disputes simultaneously when there is a temporal overlap in the periods of adjudication of the two disputes.

Did the Adjudicator adjudicate two disputes simultaneously?

The First Application was dismissed or taken to have been dismissed no later than 10 October 2018.
Salini submits that the Adjudicator began adjudicating the two disputes simultaneously by his email of 3 October 2018. In that email,[83] the Adjudicator:
(1)requested further submissions from the parties on particular matters concerning the First Application;
(2)requested an extension of time in order to determine the First Application, having regard to the timetable, the complexity of the matter, the time remaining for determination of the First Application, the making of the Second Application, and Geodata's application that the Second Application be determined simultaneously with the First Application;
(3)informed the parties that, under s 31(2)(a)(iv) of the Act, he could dismiss the First Application without making a determination of its merits if he was satisfied that it was not possible to fairly make a determination because of the complexity of the matter or the prescribed time was not sufficient or for any other reason. The Adjudicator further stated that he reserved his rights in that regard, if the parties' consent was not forthcoming; and
(4)required the parties to 'communicate their consent' to an extension of time by no later than 5.00 pm AWST on Thursday, 4 October 2018.
[83] See Agreed Facts. The email itself is in the affidavit of Arohi Kaila affirmed 25/02/2019 (Kaila Affidavit) AK‑12 page 215.
I do not accept that the 3 October email showed that the adjudication of the Second Application had begun. The content of the Adjudicator's 3 October email did not indicate he was involved in any evaluation of the merits of the dispute in the Second Application.
The only work proved to have been done by the Adjudicator in relation to the Second Application prior to 10 October 2018 was his email of 9 October 2018.[84] By that email, the Adjudicator asked the parties for submissions as to whether Geodata had served its Second Application in accordance with the requirements of the Act. If Geodata had not, the Adjudicator would have been obliged to dismiss the application without making a determination of the merits.[85] I have explained why, in my view, such an inquiry would not be part of an 'adjudication' of the Second Application. It did not involve an evaluation of the merits.
[84] This was effectively conceded by Salini - see ts 323.
[85] Section 31(2)(a)(ii) of the Act.
Therefore, there is no evidence that the Adjudicator engaged in any evaluation of the merits of the Second Application before the First Application was dismissed or taken to have been dismissed on 10 October 2018. Accordingly, I am not satisfied that there was any temporal overlap in the periods of adjudication of the two applications. Therefore, I am not satisfied that the Adjudicator simultaneously adjudicated the two disputes.
Even if I am wrong to conclude that the inquiry in the 9 October 2018 email would not involve any 'adjudication' of the Second Application, I would still not be satisfied that the Adjudicator simultaneously adjudicated the two disputes, as I will explain.
On 5 October 2018, the Adjudicator indicated, in effect, that he had stopped working on the First Application and it would be dismissed on the ground that there was insufficient time to determine it unless Salini granted an extension of time.[86] In effect, the Adjudicator advised that he was ceasing to adjudicate the First Application at that time, and would not recommence adjudicating it unless an extension of time was granted.[87] There is no evidence of any evaluation by the Adjudicator of the merits of the First Application after that date.
[86] This is discussed further below under the heading 'Was the First Application dismissed by the Adjudicator's emails?'
[87] And see Salini's characterisation of him having 'downed tools' at ts 118.
Accordingly, even if the 9 October 2018 email involved adjudication of the Second Application, there is no evidence that the Adjudicator adjudicated the First Application at any time after 5 October 2018. There would therefore not have been any overlap in the periods of adjudication of the two applications. This is another basis upon which I am not satisfied that the Adjudicator simultaneously adjudicated the two disputes.
In case I am wrong about this, I will consider Salini's contentions that, if the Adjudicator did purport to simultaneously adjudicate the two disputes, this involved jurisdictional error.

If there was simultaneous adjudication, did the Adjudicator comply with the necessary preconditions?

Salini contends that the Adjudicator did not comply with the preconditions that apply to an adjudicator's power to simultaneously adjudicate two disputes.

When can an adjudicator adjudicate simultaneously?

Section 32(3) provides:
(3)An appointed adjudicator may -
(a)with the consent of the parties, extend the time prescribed by section 31(2) for making a determination;
(b)with the consent of the parties, adjudicate simultaneously 2 or more payment disputes between the parties;
(c)adjudicate a payment dispute simultaneously with one or more other payment disputes if satisfied that doing so will not adversely affect the adjudicator's ability to adjudicate the disputes in accordance with section 30.
Salini submits that subparagraphs (b) and (c) of s 32(3) are not independent ways in which an adjudicator may be entitled to adjudicate the disputes simultaneously. Salini submits that s 32(3)(b) applies only where the disputes are between the same parties, while (c) applies only where the disputes are between different parties. It submits that 'same' should be added before the word 'parties' in s 32(3)(b), and 'unrelated' should be added before the word 'other' in s 32(3)(c).[88]
[88] ts 49.
It was common ground that the Consent Criterion in s 32(3)(b) had not been met. Salini submits that it follows that the Adjudicator did not have the power to simultaneously adjudicate the two disputes.
Salini's construction is the same construction that was rejected by Tottle J in Clough Projects Australia Pty Ltd v Floreani.[89] His Honour found that an adjudicator may simultaneously adjudicate disputes between the same parties if either of subparagraphs (b) or (c) are satisfied. Salini submits that the reasoning of Tottle J 'has difficulties'.[90]
[89] Clough Projects Australia Pty Ltd v Floreani [2018] WASC 101.
[90] Salini's First Written Submissions [30].
In Clough, Tottle J comprehensively explained his reasons for rejecting the proposed construction. I am not satisfied Tottle J was 'plainly wrong'.[91] On the contrary, and with respect, I entirely agree with his Honour's reasons and conclusion.
[91] Duckworth [31] (Edelman J).
First, as noted by Tottle J, there are no words in s 32(3)(c) that limit its application to disputes between different parties. There is no textual foundation for the proposed construction.
Second, contrary to Salini's submission,[92] Tottle J did not read s 32(3)(b) as 'subject to' s 32(3)(c). His Honour read it as an independent provision. This is entirely consistent with the overall structure of s 32(3). Section 32(3)(a) is clearly independent of both s 32(3)(b) and s 32(3)(c).[93]
[92] Salini's First Written Submissions [30] ‑ [31].
[93] As explained under the heading 'If there was simultaneous adjudication, was this unreasonable? (Ground 2)', I also do not accept Salini's contention that an adjudicator cannot adjudicate simultaneously, under either s 32(3)(b) or (c), unless he or she is satisfied he or she can determine the dispute within the prescribed time without any extension of time.
Third, Salini submits that Tottle J's construction would render s 32(3)(b) otiose. This submission is based on Salini's assumption that the achievement of the object set out in s 30[94] is a mandatory consideration in the exercise of the power to adjudicate simultaneously under s 32(3)(b) or (c).[95]
[94] s 30 of the Act defines the object of an adjudication of a payment dispute as being to determine the dispute fairly and as quickly, informally and inexpensively as possible.
[95] See, for example, Salini's First Written Submissions [29] and [31].
In my view, this cannot be assumed. First, the Object Criterion (being the requirement that the adjudicator be satisfied that simultaneous adjudication would not adversely affect the adjudicator's ability to adjudicate in accordance with the s 30 object) is an express condition to the power in s 32(3)(c), but is not expressed as a condition of the exercise of other powers. This tends against Salini's assumption. So too does the mandatory requirement to dismiss an application if the Adjudicator is satisfied of the matters set out in s 31(2)(a)(iv).[96] In any event, even if the assumption is made, this does not render s 32(3)(b) otiose on Tottle J's construction,[97] as I will explain.
[96] Under this subsection, an adjudicator must dismiss an application if he or she is satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason.
[97] As contended in Salini's First Written Submissions at [31].
Of the three subparagraphs in s 32(3), only s 32(3)(c) makes the exercise of the power conditional on satisfaction of the Object Criterion. Section 32(3)(c) is clearly intended to ensure that an adjudicator does not adjudicate simultaneously over the objection of one or more parties unless he or she is satisfied that the Object Criterion has been met.[98] If an adjudicator was required to reach the same conclusion in the exercise of each power under s 32(3), the Object Criterion in s 32(3)(c) would have no work to do.
[98] See Clough [39].
The absence of the Object Criterion from s 32(3)(a) and (b), given its presence in s 32(3)(c), indicates that s 32(3)(a) and (b) should not be construed as requiring that criterion to be met. Even if it is assumed that the object set out in s 30 is a mandatory consideration, an adjudicator would only need to consider it: he or she would not need to be positively satisfied that the Object Criterion was met before exercising a power under s 32(3)(a) or (b).
Accordingly, s 32(3)(b) is not otiose on Tottle J's construction. It will have operation where the parties consent to simultaneous adjudication, regardless of whether the Object Criterion in s 32(3)(c) would have been met.
Fourth, Tottle J's construction is not inconsistent with the statutory scheme. Salini submits that, if its construction was not accepted, an adjudicator could be imposed on the parties, irrespective of whether they wanted him or her to adjudicate their dispute, which, it submits, 'seems inconsistent with the statutory scheme' and would be unfair.[99] I do not accept that the imposition of an adjudicator is inconsistent with the statutory scheme or that it would be unfair. Under the Act, if the parties do not nominate an adjudicator, an adjudicator will be imposed on them, whether for one dispute, multiple disputes determined individually, or multiple disputes determined simultaneously. Further, I do not accept that s 32(3)(b) and (c) are directed to a party's ability to choose the adjudicator. They are directed to the appointed adjudicator's power to adjudicate simultaneously and the preconditions to that power.
[99] Salini's First Written Submissions [32], [34]. See also ts 64 ‑ 68.
Fifth, it is entirely reasonable to surmise, as Tottle J did, that, all else being equal, payment disputes between the same parties are less likely to adversely affect an adjudicator's ability to adjudicate in accordance with s 30 than if the adjudicator was to simultaneously adjudicate disputes between different parties.[100] No evidence is required to support the supposition.[101] I agree with Tottle J that it is unlikely the legislature would have intended to confer a discretion on an adjudicator to undertake simultaneous adjudications between different parties but not simultaneous adjudications between the same parties.
[100] Clough [41].
[101] See Salini's First Written Submissions [33], effectively to the contrary.

Prejudgment

[219] Isbester [24], [32], [33]. See also [46] ‑ [50].

[220] Isbester [32] ‑ [33].

Prejudgment in this context means that the decision‑maker is not 'open to persuasion'.[221]
[221] Jia Legeng [71], [105] (Gleeson CJ & Gummow J); McGovern [15] ‑ [23].
Applying the test of apprehended bias to an allegation of prejudgment, the question is whether a fair‑minded lay observer might reasonably apprehend that the decision‑maker might not be open to persuasion.[222]

Conflict of interest

[222] McGovern [23].

In Isbester, the High Court was considering an allegation of conflict, not prejudgment.
The appellant had been convicted of an offence under s 29(4) of the Domestic Animals Act 1994 (Vic) as her dog had attacked a person and caused serious injury. Section 84P(e) of that Act provided the relevant council with the power to destroy a dog where its owner had been found guilty of such an offence. Following a hearing, a panel of three delegates of the relevant council decided that the dog should be destroyed.
One of the members of that panel, Ms Hughes, had been involved in the prosecution on behalf of the council. Ms Hughes had directed council employees to further investigate the identity of the dog involved in inflicting the injury and she spoke with the complainant herself. She determined that six charges should be laid with respect to the attack, arranged for charges and summonses to be drafted and signed some of the charges as informant. Ms Hughes gave instructions to the council's solicitors to prosecute the charges and to negotiate pleas which might be accepted from the appellant. Those pleas were subsequently entered, resulting in the appellant's conviction.
Subsequently, Ms Hughes organised the panel hearing and drafted the letter advising the appellant of it. She supplied the panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog.
The plurality said the question before the court was whether it might reasonably be apprehended that a person in Ms Hughes' position would have an interest in the decision to destroy the dog which could affect her proper decision‑making.[223]
[223] Isbester [32] ‑ [33].
The plurality said that Ms Hughes' involvement in the prosecution created an interest in the final outcome. The plurality noted that her involvement had continued after the Magistrates Court proceedings had ended, and said that she could properly be described as the 'moving force' with respect to the decision to destroy the dog.[224]
[224] Isbester [42] ‑ [43].
The plurality explained that a 'personal interest' is not limited to where a person will receive some material or other benefit.[225]
In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted, as the two cases referred to show, that it might reasonably be thought that the person's involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making. This is not to equate such a person with a judge.
[225] Isbester [46].
The plurality noted that the Ebner test still applied to allegations of conflict. They said:[226]
The test directs attention, as a first step in cases where apprehended bias is alleged, to the critical question of the decision‑maker's interest. The difference in the application of the test is that in cases like the present one that concern incompatibility of roles, once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious.
[226] Isbester [49].
I note, however, it has been suggested that, where the decision is not an evaluative one, an interest held by the decision‑maker may not inevitably mean that a connection will be established.[227]

The fair-minded lay observer

[227] See Day v Sanders [2015] NSWCA 324; (2015) 90 NSWLR 764 [97] ‑ [98] (Basten JA, with whom Leeming & Simpson JJA agreed at [117], [131]).

In applying the test, the hypothetical fair‑minded lay observer is to be taken to be 'aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision'.[228]
[228] Isbester [23] (plurality) and [57] (Gageler J); see also McGovern [78] ‑ [83].
The fair‑minded lay observer is reasonable. He or she is 'neither complacent nor unduly sensitive or suspicious'.[229]

The relevant facts

[229] Bodycorp Repairers v Holding Redlich [84], quoting Kirby J in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488[53].

The Adjudicator dealt with all three applications.
I have found that the First Application was taken to have been dismissed because the Adjudicator did not dismiss it or determine it within the prescribed time.
In the Second Determination Record, the Adjudicator dealt with a submission by Salini that, because he had dismissed the First Application on the ground that it was too complex to determine within the prescribed time, he should dismiss the Second Application for the same reason. The Adjudicator rejected the premise that he had dismissed the First Application on that ground (or indeed at all) and therefore rejected Salini's submission. He wrote:[230]
The Respondents submitted that as the Previous Adjudication had been dismissed under section 31(2)(a)(iv) of the Act I should now do likewise. That submission is based on the false factual premise that the Previous Adjudication had been dismissed under 31(2)(a)(iv) of the Act, when there is no evidence that such a decision had been made, and I so find.
As the Previous Adjudication had not been dismissed or determined under subsection (2) within the prescribed time, it was taken to have been dismissed when the time has elapsed in accordance with section 31(3) of the Act and I so find, rejecting the Respondents' submissions in doing so.
I do not accept the Respondents' submission that this is an adjudication to which section 31(2)(a)(iv) otherwise applies. That is, I consider that the matter is not too complex to be fairly determined by adjudication nor would the time limits preclude that outcome.
[230] Kaila Affidavit AK‑32 page 428.
As noted earlier, the Adjudicator would only have jurisdiction to deal with the Third Application if he had not dismissed the First Application. In the Third Determination Record, the Adjudicator found that he had not dismissed the First Application and gave reasons for that finding.[231]

The allegations

The alleged interest

[231] Kaila Affidavit AK‑56 pages 636 ‑ 639.

Salini submits that there was a reasonable apprehension of bias because the Adjudicator had to determine whether he had dismissed the First Application in order to determine whether he had jurisdiction to adjudicate the Third Application. Salini submits that the Adjudicator was being asked, in the Third Application, to review his own decision in the First Application and determine whether he had in fact dismissed it. Salini submits he was being asked, in effect, to 'mark his own homework'.[232]
[232] ts 127 ‑ 130.
Salini says this might cause a fear that the Adjudicator had an interest in the outcome. Salini submits that the Adjudicator's interest was similar to the interest of Ms Hughes in Isbester.[233]
[233] ts 127.
I do not accept this.
In Isbester, Ms Hughes was found to have been the moving force with respect to the decision being made. The plurality explained that the 'personal interest' in the case of a prosecutor or other moving party refers to the view that they may have of the matter and which is in that sense personal to them. A prosecutor may have an interest in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment. The plurality said that it is well accepted that it might reasonably be thought that a person's involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision‑making.[234]
[234] Isbester [43] and [46].
The Adjudicator did not have an interest of this type or an interest even resembling such an interest. Nor was the Adjudicator being asked, in the Third Application, to, in effect, 'mark his own homework'. In order to have the jurisdiction to deal with the Third Application, the Adjudicator needed to be satisfied that he had not dismissed the First Application. This was not a review of the correctness of any decision he had made in the First Application. Rather, he was merely required to determine what in fact he had done - not whether or not he was right to have done it.
I am not satisfied that it could reasonably be apprehended that the Adjudicator would have an interest in the decision as to whether the First Application was dismissed which could affect his proper decision‑making.

The alleged prejudgment

Salini submits that there was a reasonable apprehension of bias because although the Adjudicator was required to determine whether he had dismissed the First Application in order to determine whether he had jurisdiction to adjudicate the Third Application, the Adjudicator had already found, in the Second Determination Record, that he had not dismissed the First Application. Salini says this might cause a fear that the Adjudicator had prejudged the issue.
Salini points to the language the Adjudicator used to describe its submission in the Second Determination Record - that its submission was 'based on a false factual premise'.
I accept that the Adjudicator rejected Salini's submission in strong terms in the Second Determination Record. However, his comments were made in a particular context. He was rejecting Salini's argument that, because he had, according to Salini, dismissed the First Application on the ground that it was too complex to determine within the prescribed time, he should dismiss the Second Application for the same reason. The Adjudicator did not accept he had dismissed the First Application. The Adjudicator also did not accept that it was not possible to fairly make a determination on the Second Application because of the complexity of the matter or because the prescribed time was not sufficient for any other reason.
The Adjudicator understood that the Third Application would not be valid if he had dismissed the First Application. He understood that he would not, in effect, have jurisdiction to deal with the Third Application unless he had not dismissed the First Application. The Adjudicator did not simply assert that he had not dismissed the First Application. Rather, he set out the submissions of the parties in relation to whether he had dismissed the First Application, and gave detailed reasons for why he found he had not.
In all the circumstances, I am not satisfied that a fair‑minded lay observer might have reasonably apprehended that the Adjudicator might not be open to persuasion.

Conclusion

The hypothetical fair‑minded lay observer is to be taken to be aware of the nature of the decision and the context in which it was made, as well as to have knowledge of the circumstances leading to the decision. I am not satisfied that a fair‑minded lay observer might reasonably apprehend that the Adjudicator might not have brought an impartial mind to the decision.

Was the Adjudicator's Costs Decision unreasonable? (Ground 5)

Ground 5 was amended to allege that the Adjudicator's decision to recover all of his fees from Salini was unreasonable. I refer to this decision as the 'Costs Decision'.
Salini asserts the Costs Decision was unreasonable on both 'process' and 'outcome' grounds.[235] The difference between these two bases is explained in the extract quoted earlier from Minister for Immigration and Border Protection v Eden.[236]
[235] ts 240 ‑ 241.
[236] See the extract from Minister for Immigration and Border Protection v Eden quoted under the heading 'Legal principles - reasonableness'.
Salini submits it was unreasonable on process grounds because the Adjudicator relied on s 34(2), thereby identifying the wrong source of his power.[237] Salini submits that s 34(2) does not give an adjudicator the power to make orders in relation to the payment of his or her own fees.
[237] ts 240 and ts 242.
The basis for Salini's submission that it was also unreasonable on outcome grounds was not entirely clear. However, the submission appeared to be that, if the Adjudicator had not wrongly relied on s 34, he would not have made the Costs Decision.[238] Whatever the submission was, Salini did not seek to demonstrate that, if it was within the Adjudicator's power to make the Costs Decision, then, on the evidence, an adjudicator acting reasonably would not have made the decision. Rather, both Salini's 'process' basis and its 'outcome' basis challenged only the Adjudicator's reliance on s 34(2).
[238] See Salini's Third Written Submissions [22].
Salini submits that an adjudicator's fees are dealt with solely by s 44, and are not part of a party's costs under s 34.

Do the costs under s 34(2) include an adjudicator's fees under s 44?

Section 34(1) provides that, subject to subsection (2), parties to a payment dispute bear their own costs in relation to an adjudication of the dispute.
Section 34(2) provides that, if an appointed adjudicator is satisfied that a party to a payment dispute incurred costs of the adjudication because of frivolous or vexatious conduct on the part of, or unfounded submissions by, another party, the adjudicator may decide that the other party must pay some or all of those costs.
In these reasons, I have been using the expression 'the adjudicator's fees' to refer to an adjudicator's entitlement to be paid for his or her work under s 44(2) of the Act.[239] However, s 44 refers to this entitlement (and the entitlement to be reimbursed for expenses) as the costs of an adjudication.
[239] The entitlement only arises if the adjudicator has dismissed the application or made a determination within the prescribed period.
Section 44 of the Act provides:
(1)For the purposes of this section the costs of an adjudication are -
(a)the entitlements of the appointed adjudicator under subsection (2); and
(b)the costs of any testing done, or of any expert engaged, under section 32(2)(c).
(2)If an appointed adjudicator, within the prescribed time in section 31(2), dismisses an application for adjudication or makes a determination of the dispute, he or she is entitled -
(a)to be paid for his or her work -
(i)at a rate agreed between the adjudicator and the parties that is not more than the maximum rate, if any, prescribed by the regulations; or
(ii)if a rate was not agreed, at the rate published under section 51 in respect of the adjudicator;
and
(b)to be reimbursed any expenses reasonably incurred in connection with that work.
(3)An appointed adjudicator who is disqualified under section 29 has the entitlements in subsection (2) in respect of any adjudication work done before the disqualification is notified to the parties.
(4)Despite subsection (2), an appointed adjudicator may refuse to communicate his or her decision or determination under section 31(2) or 34(2) or subsection (10) until he or she has been paid and reimbursed in accordance with subsection (2).
(5)The parties involved in a payment dispute are jointly and severally liable to pay the costs of an adjudication of the dispute.
(6)As between themselves, the parties involved in a dispute are liable to pay the costs of an adjudication of the dispute in equal shares.
(7)Subsections (5) and (6) do not prevent a decision being made under section 34(2).
(8)An appointed adjudicator may at any time require one or more parties to provide a reasonable deposit, or reasonable security, for the, or any anticipated costs of the adjudication.
(9)A prescribed appointor, before appointing an adjudicator, may require the applicant for adjudication to provide a deposit, or reasonable security, for the, or any anticipated costs of the adjudication.
(10)If a party involved in a dispute has paid more than the party's share of the costs of an adjudication of the dispute, having regard to subsection (6), the appointed adjudicator may decide that another party must pay to the first mentioned party such amount of the costs as would result in all the parties paying an equal amount of the costs.
(11)If an appointed adjudicator makes a decision under subsection (10) -
(a)the adjudicator must include in the decision the date on which the amount is payable; and
(b)Divisions 4 and 5, with any necessary changes, apply to the decision as if it were a determination of an appointed adjudicator.
(12)An appointed adjudicator may recover the costs of an adjudication from a person liable to pay the costs in a court of competent jurisdiction as if the costs were a debt due to the adjudicator.
The express reference in s 44(7) to subsections (5) and (6) not preventing a decision being made under s 34(2) is directly inconsistent with Salini's construction. In my view, it demonstrates that an adjudicator's fees, referred to as the costs of an adjudication in s 44, are part of the parties' costs of the adjudication referred to in s 34.
Salini advanced several arguments in support of its contention to the contrary. Although not entirely clear, it appeared that Salini contended as follows.[240]
[240] ts 244 ‑ 246.
First, Salini relied on the headings to s 34 and s 44. Headings to individual sections are not part of the written law under the Interpretation Act 1984 (WA).[241] In any event, the headings do not alter the plain meaning of the sections. Both sections are contained in pt 3 of the Act.[242] Part 3 is titled 'Adjudication of disputes'. Section 34 is headed 'Costs of parties to payment disputes' and is in div 3 of pt 3. Division 3 is titled 'The adjudication process'. Section 44 is headed 'Costs of Adjudication' and is in div 6 of pt 3. Division 6 is titled 'General'. In my view, even if it was appropriate to have regard to the headings of the individual sections, they do not support Salini's construction.
[241] By s 32(2).
[242] Headings of parts and divisions form part of the written law - see s 32(1) of the Interpretation Act 1984.
Second, Salini submitted that the introductory words of s 44(1) demonstrate that s 44 is limited only to an adjudicator's fees and expenses. I accept this. However, it does not demonstrate that s 34 does not encompass an adjudicator's fees. Section 44 is limited to an adjudicator's fees and expenses because of the matters it regulates. Among other things, it gives an adjudicator the power to withhold a determination until he or she has been paid. It protects an adjudicator's right to be paid for his or her work. It would make no sense to include other costs of the parties in this context. Section 44 also sets out the liabilities of the parties to pay an adjudicator's fees and an adjudicator's power to make decisions to ensure each pays half, and to recover his or her fees as a debt. Again, it would make no sense to include other costs of the parties in this context.
Third, Salini submitted that s 44 deals with the 'broader' category of an adjudicator's fees, while s 34 relates 'only' to the parties' costs. It is difficult to understand this submission. The entitlements under s 44(2) are an adjudicator's entitlements to be paid for his or her work (which I refer to as the adjudicator's fees) and to have expenses reimbursed. This clearly does not include any costs incurred by the parties outside their obligations to pay an adjudicator's fees. In my view, the better construction is that s 34(2) is the broader category. That is, the parties' costs referred to in s 34(2) includes the costs the parties must pay under s 44 (being the adjudicator's fees and expenses).

Fourth, Salini referred to the differences in the wording of the two sections. Salini pointed out that s 34(2) uses the phrase 'costs of the adjudication', while s 44 uses the phrase 'costs of an adjudication'. This is a distinction of no substance. Indeed, s 34(1) uses the phrase 'Subject to subsection (2), … costs in relation to an adjudication'. In addition, two subsections of s 44 use the phrase 'costs of the adjudication'.[243]
[243] Section 44(8) and (9).
Fifth, Salini contended that, because s 34(2) referred to costs that had been incurred because of frivolous or vexatious conduct by the other party, this could not include an adjudicator's fees. Salini contended that this was so because it cannot be assumed that an adjudicator's fees would rise and fall on the parties' conduct as, for example, an adjudicator may charge a flat fee. I do not accept that the word 'incurred' supports Salini's construction. Section 34(2) will only arise if in fact costs have been incurred because of frivolous or vexatious conduct by a party. If an adjudicator charges a flat fee, any such conduct will not increase those fees and, unless the conduct increased the innocent party's other costs, the power under s 34(2) would not be enlivened. If an adjudicator does not charge a flat fee, and such conduct increased his or her fees, the power under s 34(2) would be enlivened regardless of whether the offending party's conduct increased the innocent party's other costs. No assumption is involved.
In my view, the reference in s 34 to the parties 'costs of the adjudication' includes an adjudicator's fees. This follows, in my view, from the plain meaning of costs in this context, supported by the context of s 44 (in particular s 44(7)) and the Act as a whole.
Further, even if the power to make the Costs Decision should be seen to have come from s 44 as well as s 34(2), jurisdictional error will not be established where a decision‑maker has a power to do something but misidentifies the source of the power.[244]

The structure of the decision

[244] Australian Education Union v Department of Education and Children's Services[2012] HCA 3; (2012) 248 CLR 1 [34] (French CJ, Hayne, Kiefel & Bell JJ).

On that construction (that an adjudicator's fees, referred to as the costs of an adjudication in s 44, are part of the parties' costs of the adjudication referred to in s 34), if an adjudicator decides under s 34(2) that, for example, the offending party should pay all of the innocent party's costs, this would require the offending party to pay all of the adjudicator's fees.
In my view, there is no reason to interpret s 34(2) as requiring an adjudicator to direct the offending party to pay to the innocent party the innocent party's costs (including what would otherwise be the innocent party's share of the adjudicator's fees under s 44(6)), and then for each party to pay to the adjudicator half of his or her fees, in order to achieve the same outcome.
Rather, if a decision is made under s 34(2) that one party must pay the other party's costs, the adjudicator may simply direct that the offending party pay all of his or her fees directly to him or her. The offending party would also be liable, by virtue of that costs decision, to pay to the innocent party the innocent party's other costs of the adjudication (that is, any costs other than the adjudicator's fees).
Supporting this construction are s 44(5) and s 44(12). The parties are jointly and severally liable for an adjudicator's fees and it is open to an adjudicator to sue one party for all of his or her fees.

Immateriality

In any event, it would have been open to the Adjudicator to make a decision under s 34(2) that Salini must pay Geodata's costs (including what would otherwise be Geodata's share of the Adjudicator's fees under s 44(6)), and then to recover from each party half of his fees under s 44.
Accordingly, even if the Adjudicator was not permitted to structure the Costs Decision in the way that he did, it would have made no difference to the ultimate outcome. In my view, such an error would not have been jurisdictional.

Conclusion

For these reasons, I find that the Adjudicator's Costs Decision was not unreasonable. It did not involve jurisdictional error.

Was the Adjudicator's failure to consider the merits of a defence a jurisdictional error? (Ground 6)

One of Salini's defences in the adjudication of the Second and Third Applications was a defence of negative variation. The defence sought to set off an alleged negative variation against the amounts admittedly due by Salini to Geodata under payment claims IPA‑23 and IPA‑24. IPA‑23 was the payment claim the subject of the Third Determination. IPA‑24 was the payment claim the subject of the Second Determination.
In his reasons for making the Second Determination, the Adjudicator rejected the negative variation defence.
The Second Determination Record was attached to the Third Application. In his reasons for making the Third Determination, the Adjudicator said that the principle of issue estoppel prevented him from considering the negative variation defence, as he had rejected that defence in making the Second Determination.
Salini submits that issue estoppel could not arise in an adjudication, the Adjudicator therefore failed to determine the merits of the Third Application, and that this was a jurisdictional error.[245]

Legal principles - issue estoppel in the Act

[245] See, for example, ts 150.

It was common ground that an adjudicator's determination under the Act does not finally determine the merits and does not give rise to an issue estoppel in subsequent civil proceedings.[246] However, the parties disagreed as to whether a form of issue estoppel can arise when there are two or more adjudications between the same parties. I will refer to this as 'adjudication estoppel'.
[246] See the summary set out in Easy Stay Mining Accommodation Pty Ltd v Grounded Construction Group Pty Ltd [2018] FCA 519 [31] ‑ [32].
The parties agreed there were no Western Australian authorities on this issue.[247]
[247] See, for example, ts 194 (Salini) and Geodata's First Written Submissions [88].
The NSW Court of Appeal in Dualcorp Pty Ltd v Remo Constructions Pty Ltd[248] found that issue estoppel applied to the Building and Construction Industry Security of Payment Act 1999 (NSW) to, in effect, prohibit the repetitive agitation of an issue that had already been determined. I will refer to this Act as the 'NSW Act'.
[248] Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 [67] ‑ [72] (Macfarlan JA, with whom Handley JA agreed). See also Allsop P at [16].
In the Tasmanian Supreme Court, Blow CJ in Modscape Pty Ltd v Francis[249] said that, when there are two or more adjudications between the same parties, a limited form of issue estoppel can arise (in the adjudication proceedings), citing Dualcorp. His Honour noted, however, that it could only apply to a fact that was 'fundamental to the decision arrived at' or 'legally indispensable to the conclusion'.
[249] Modscape Pty Ltd v Francis [2017] TASSC 55 [4] ‑ [5].
In Modscape, Blow CJ found that the adjudicator had erred in determining that issue estoppel could operate in relation to a finding that was not indispensable to the original adjudication determination.[250] However, his Honour said it was 'an error which does not go to the validity of his determination, and which may be corrected upon a final hearing of the issues in dispute between the parties'.[251]
[250] Modscape [9] ‑ [12].
[251] Modscape [27].
Salini submits that Dualcorp is not relevant to the Western Australian Act because it was based on the NSW Act and there are significant differences in the legislative regimes. Salini submits that Modscape is also distinguishable.
Salini also placed reliance[252] on a decision of Colvin J in Easy Stay Mining Accommodation Pty Ltd v Grounded Construction Group Pty Ltd.[253] Salini relied on Colvin J's statement that 'there is no sense in which an issue estoppel arises from the adjudicator's decision'.[254] The context of this statement was:
So, although the determination of an adjudicator under the CCA creates a binding statutory obligation to pay, it is not a final determination of the merits. Further, none of the material put to the adjudicator or the reasoning of the adjudicator can be relied upon in any other proceedings. In those circumstances, there is no sense in which an issue estoppel arises from the adjudicator's decision. Rather, the adjudicator determines an amount that must be paid by operation of statutory provisions without affecting the underlying common law rights of the parties.
[252] See Salini's Third Written Submissions [23] ‑ [26].
[253] Easy Stay Mining Accommodation Pty Ltd v Grounded Construction Group Pty Ltd [2018] FCA 519.
[254] Easy Stay [32].
In my view, Colvin J's remarks cannot be interpreted as supporting the proposition that issue estoppel could never arise in relation to a finding made by an adjudicator under the Act so as to prevent that issue being re‑agitated in subsequent adjudications. His Honour was simply explaining that, while determinations are binding on the parties, they are not a final determination of rights; they do not affect the underlying common law rights, such as the right to institute proceedings in a court.
Two questions arise:
(1)Does adjudication estoppel apply under the Act? In relation to this question, is Dualcorp, being a decision based on the NSW Act, irrelevant to the Act?
(2)If adjudication estoppel does not apply under the Act, would it be a jurisdictional error for an adjudicator to apply it? In relation to this question, is Modscape distinguishable?

Does adjudication estoppel apply under the Act?

Salini submitted that Dualcorp was irrelevant due to the differences between the Act and the NSW Act. Salini relied in particular upon the absence of an equivalent provision in the Act to s 22(4) of the NSW Act.[255] Section 22(4) of the NSW Act provides:
If, in determining an adjudication application, an adjudicator has, in accordance with section 10, determined:
(a)the value of any construction work carried out under a construction contract, or
(b)the value of any related goods and services supplied under a construction contract,
the adjudicator (or any other adjudicator) is, in any subsequent adjudication application that involves the determination of the value of that work or of those goods and services, to give the work (or the goods and services) the same value as that previously determined unless the claimant or respondent satisfies the adjudicator concerned that the value of the work (or the goods and services) has changed since the previous determination.
[255] See Salini's Third Written Submissions [29] ‑ [36] and ts 194, 199.
Section 22(4) was one of the reasons why Macfarlan JA, with whom Handley JA agreed, held in Dualcorp that the NSW Act demonstrated a legislative intent to render adjudication determinations 'relevantly conclusive' (that is, conclusive as to the issues determined for the purposes of any further adjudications under the NSW Act, not more generally).[256]
[256] Dualcorp [60] and [67].
Although there is no equivalent of s 22(4) of the NSW Act in the Western Australian Act, there are other provisions, not present in the NSW Act, that support the conclusion that the Western Australian Act demonstrates the same intention. Sections 6(2) and 41(1)(b) are such provisions:
(1)By s 6(2), a payment dispute will not arise to the extent to which the payment claim includes matters that were the subject of an application for adjudication that has been dismissed or determined under s 31(2).[257]
(2)By s 41(1)(b), if an application for the adjudication of a dispute is determined, a party may not apply for another adjudication of the dispute.
[257] Compare s 37(2) in relation to dismissed applications.
In my view, the Western Australian Act manifests an intention that adjudication determinations are conclusive in the sense that, once a payment dispute has been determined, it cannot be the subject of further adjudication.
Further, the observations in Dualcorp as to issue estoppel went well beyond an actual 'determination', and well beyond s 22(4). Macfarlan JA said:[258]
I do not consider however that s 22(4) should be regarded as an exhaustive statement of the matters determined by an earlier adjudication which are binding on a subsequent adjudicator. For reasons I have given, I consider that the Act when read as a whole manifests an intention to preclude reagitation of the same issues. Thus, if questions of entitlement have been resolved by an adjudication determination, those findings may not in my view be reopened upon a subsequent adjudication.
[258] Dualcorp [67] (Macfarlan JA, with whom Handley JA agreed). See also Allsop P at [16].
I do not consider that the differences between the two Acts[259] means that Dualcorp is distinguishable. Nor am I satisfied it is 'plainly wrong'. Therefore, I conclude that adjudication estoppel applies to the Western Australian Act.[260]
[259] In relation to the various provisions in the NSW Act relied upon by Macfarlan JA, there is an equivalent or 'better' in the Western Australian Act, apart from s 22(4). See the Western Australian Act s 30 (compared to s 3 of the NSW Act), s 6(2) and s 41(1)(b) (compared to s 13(5) of the NSW Act), s 39(1) (compared to s 23(2) of the NSW Act), s 42 (compared to s 24 of the NSW Act), s 43 (compared to s 25 of the NSW Act), s 25, s 37(2) and s 41 (not an equivalent, but of similar intent to s 26 of the NSW Act) and s 45 (compared to s 32 of the NSW Act).
[260] Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135].
The clear legislative intent of the Act is to render adjudication determinations conclusive in any further adjudications. In my view, a form of issue estoppel applies under the Act to prevent, at least, the re‑agitation of an issue that was fundamental to the assessment of the liability to pay and the quantum of the amount found to be payable under s 32(2)(b). The Adjudicator did not err in finding that the negative variation defence could not be re‑agitated.
In case I am wrong about these conclusions, I will consider whether, if adjudication estoppel does not arise under the Act, the Adjudicator's error would have been a jurisdictional one.

Would it be a jurisdictional error?

Salini seeks to distinguish Modscapeon the basis that Blow CJ's reasoning was predicated on the acceptance that a limited form of issue estoppel applied to the Tasmanian Act. Salini submits that the error in Modscapewas not the applicability of issue estoppel, but its incorrect application. Salini submits that, as adjudication estoppel does not apply under the Western Australian Act, Blow CJ's conclusion that the adjudicator's error did not affect the validity of his determination is of no relevance in assessing whether the Adjudicator's alleged error in applying issue estoppel in this case affected the validity of his determination.
Even if adjudication estoppel does not arise under the Act in relation to subsequent adjudications, I do not accept that Modscapeis distinguishable on this basis. Blow CJ's reasoning was directed to the consequences of wrongly applying issue estoppel. In my view, the differences in the legislative schemes of the two Acts does not impact on this assessment. Blow CJ found that the adjudicator had wrongly found issue estoppel applied to prevent him from reconsidering an issue that had been determined in a previous adjudication. Whether or not one begins from a starting point that adjudication estoppel may apply in some circumstances, Blow CJ's decision is simply that, if it is wrongly thought to apply, the error is not a jurisdictional one.
I am not satisfied Blow CJ was 'plainly wrong'.[261]
[261] Duckworth [31] (Edelman J).
Accordingly, if the Adjudicator was wrong to determine that issue estoppel applied, this was not a jurisdictional error. That is, if it was an error, it was an error within jurisdiction. The Adjudicator had, to paraphrase Hayne J in Aala, the authority to incorrectly decide whether issue estoppel applied.

Conclusion

For these reasons, I conclude that the Adjudicator was correct in deciding that the negative variation defence could not be re‑agitated. If I am wrong about that, the error was not jurisdictional.

Ground 7

Ground 7 alleged that the Third Determination was unreasonable, alternatively, illogical or irrational, such that it amounted to jurisdictional error. No particulars were given. In its written submissions, Salini asserted it was unreasonable on 'outcome' grounds and that jurisdictional error should be inferred from the result reached, having regard to the matters it had raised in relation to other grounds.[262] During the second day of hearing, Salini 'clarified' that this ground was intended to assert that the combination of alleged errors, if not jurisdictional errors, meant that the Adjudicator's decision was legally unreasonable.[263]
[262] Salini's First Written Submissions [77].
[263] ts 246 ‑ 248.
Salini did not offer any authorities in support of the proposition that an accumulation of errors within jurisdiction can result in a jurisdictional error. It is unnecessary to reach a view on this in light of my findings. However, I doubt it. The Adjudicator had the authority to make errors within jurisdiction. Salini made no attempt to establish that the Adjudicator's ultimate decision was outside the boundaries of power.

Conclusion

My conclusions in respect of each ground have been set out in the discussion of those grounds. In short, I found as follows.
(1)I am not satisfied that the Adjudicator purported to adjudicate the First and Second Applications simultaneously.
(2)The Second Determination was made within the prescribed time.
(3)The amendments to the Second Determination Record did not involve jurisdictional error.
(4)The Third Application was validly made. The Adjudicator had jurisdiction to adjudicate the Third Application.
(5)The circumstances did not give rise to a reasonable apprehension of bias.
(6)The Adjudicator's Costs Decision was not unreasonable. It did not involve jurisdictional error.
(7)The Adjudicator correctly found that the negative variation defence could not be re‑agitated in the Third Application.
(8)The Third Determination was not otherwise unreasonable.
Accordingly, I would dismiss each of Salini's applications for judicial review. I will hear from the parties as to costs.

Annexure

Table showing the differences between Version 6 and Version 7 (of the Second Determination Record) prepared by Salini[264]
[264] Salini's Fourth Written Submissions. See also Geodata's Second Written Submissions [16] ‑ [17], citing the relevant paragraphs of the Adjudicator's Affidavit, and see also ts 281 ‑ 283.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer
6 MARCH 2020