Sandvik Mining and Construction Australia Pty Ltd v Fisher [No 2]

The case of Sandvik Mining and Construction Australia Pty Ltd v Fisher [No 2] concerns a judicial review application brought by Sandvik against a decision made by Mr Fisher, the adjudicator. The dispute arises from a construction contract governed by the Construction Contracts Act 2004 (WA). The central issue is whether it is permissible to bring two separate applications for adjudication involving different items under the same progress claim. Additionally, the court needed to determine whether an assumption made for the purposes of calculating the total amount to be paid constituted a 'determined' matter under the Act.

Sandvik initially argued that a progress claim can only give rise to a single payment claim and a single payment dispute. This meant that once any part of a progress claim was subject to adjudication, it defined the 'payment dispute' for that progress claim, and no subsequent adjudication could be made regarding other disputed items within the same progress claim. However, Sandvik later modified its position, accepting that each itemised amount in a progress claim could be treated as a separate 'payment claim'. The court therefore had to address whether the First Determination, which involved some items from Progress Claim 26, precluded the Second Determination from being made.

The court considered the relevant statutory provisions and the established case law, particularly the decision in Duro Felguera Australia Pty Ltd v Samsung C&T Corporation. The court found that a progress claim could indeed give rise to multiple 'payment claims', each of which could be the subject of separate adjudications. Furthermore, the court determined that the First Determination did not encompass all items in Progress Claim 26, and therefore the Second Determination was not precluded. The court concluded that Mr Fisher had the jurisdiction to make the Second Determination.

As a result of the court's findings, the application for judicial review was dismissed. The decision underscored the importance of correctly interpreting the statutory provisions and highlighted the flexibility in adjudicating on different items within the same progress claim. The court's ruling reinforced the principle that each itemised amount in a progress claim can be treated as a separate 'payment claim', thereby allowing for multiple adjudications on different items under the same progress claim.