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Salini-Impregilo S.P.A. v Francis

Salini-Impregilo S.P.A. v Francis

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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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] WASC 72
Decision Date: 6 MARCH 2020

CaseChat Overview and Summary

Salini-Impregilo S.P.A. (Salini) sought judicial review of several adjudication determinations made by an adjudicator (Geodata) in a construction contract dispute. The case was heard in the Supreme Court of Western Australia. Salini challenged the validity of the adjudicator's determinations on various grounds, including the failure to comply with statutory requirements, bias, and unreasonableness.

The primary legal issues included whether the adjudicator's amendments to the Second Determination Record constituted a jurisdictional error, whether the adjudicator had the power to adjudicate two applications simultaneously, and if the adjudicator's conduct was unreasonable. Salini argued that the amendments to the Second Determination Record were made without proper authority and that the simultaneous adjudication of the first and second applications was improper. Geodata contended that the amendments did not affect the substantive determination and that there was no simultaneous adjudication.

The court found that the amendments to the Second Determination Record did not constitute jurisdictional error as they did not alter the substantive determination. The court held that the adjudicator had the power to adjudicate the applications simultaneously if the statutory preconditions were met. The court also found that the adjudicator's conduct did not display unreasonableness, bias, or other grounds for judicial review. Consequently, the court dismissed Salini's application for judicial review.

As a result of the court's decision, Salini's application for judicial review was dismissed with no orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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).