SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD and FIELD DEPLOYMENT SOLUTIONS PTY LTD
[2015] WASAT 69
•19 JUNE 2015
SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD and FIELD DEPLOYMENT SOLUTIONS PTY LTD [2015] WASAT 69
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 69 | |
| 19/06/2015 | |||
| CONSTRUCTION CONTRACTS ACT 2004 (WA) | |||
| Case No: | CC:260/2015 | 30 APRIL 2015 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) | 30/04/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time refused | ||
| B | |||
| PDF Version |
| Parties: | SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD FIELD DEPLOYMENT SOLUTIONS PTY LTD |
Catchwords: | Review of dismissal of adjudication application Application made out of time Whether extension of time should be granted |
Legislation: | Construction Contracts Act 2004 (WA), s 46(1) State Administrative Tribunal Act 2004 (WA) State Administrative Tribunal Rules 2004 (WA), r 9, r 10 |
Case References: | Di Virgilio v McCleary [2012] WASC 437 Field Deployment Solutions Pty Ltd and SC Projects Australia Pty Ltd [2014] WASAT 101 Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 Re AnsteeBrook; ex parte Mt Gibson Mining Limited [2011] WASC 172; 42 WAR 35 |
Summary | The applicant applied to the Tribunal for a review of a decision made by an adjudicator under the Construction Contracts Act 2004 (WA). An application for review should be made within 28 days of the date of the adjudicator's decision under r 9 of the State Administrative Tribunal Rules 2004 (WA), although the Tribunal has a discretion to extend that period. The application was made over five months after the relevant decision was delivered and the applicant accordingly also sought an extension of that time limit.,The Tribunal considered the applicant's application for an extension of time and took into account the length of the delay, the reasons for the delay, whether the applicant had an arguable case and the extent of any prejudice to the respondent if the extension was granted.,The Tribunal concluded that an extension of time should not be granted and dismissed the applicant's application. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA) CITATION : SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD and FIELD DEPLOYMENT SOLUTIONS PTY LTD [2015] WASAT 69 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : 30 APRIL 2015 DELIVERED : 30 APRIL 2015 PUBLISHED : 19 JUNE 2015 FILE NO/S : CC 260 of 2015 BETWEEN : SC PROJECTS AUSTRALIA PTY LTD AND SEA TRUCKS AUSTRALIA PTY LTD
- Applicant
AND
FIELD DEPLOYMENT SOLUTIONS PTY LTD
Respondent
Catchwords:
Review of dismissal of adjudication application Application made out of time Whether extension of time should be granted
Legislation:
Construction Contracts Act 2004 (WA), s 46(1)
State Administrative Tribunal Act 2004 (WA)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Extension of time refused
Summary of Tribunal's decision:
The applicant applied to the Tribunal for a review of a decision made by an adjudicator under the Construction Contracts Act 2004 (WA). An application for review should be made within 28 days of the date of the adjudicator's decision under r 9 of the State Administrative Tribunal Rules 2004 (WA), although the Tribunal has a discretion to extend that period. The application was made over five months after the relevant decision was delivered and the applicant accordingly also sought an extension of that time limit.
The Tribunal considered the applicant's application for an extension of time and took into account the length of the delay, the reasons for the delay, whether the applicant had an arguable case and the extent of any prejudice to the respondent if the extension was granted.
The Tribunal concluded that an extension of time should not be granted and dismissed the applicant's application.
Category: B
Representation:
Counsel:
Applicant : Mr T Porter
Respondent : Mr P Clifford
Solicitors:
Applicant : Jones Day
Respondent : Alan Rumsley Commercial Disputes Lawyer
Case(s) referred to in decision(s):
Di Virgilio v McCleary [2012] WASC 437
Field Deployment Solutions Pty Ltd and SC Projects Australia Pty Ltd [2014] WASAT 101
Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217
Re AnsteeBrook; ex parte Mt Gibson Mining Limited [2011] WASC 172; 42 WAR 35
1 These reasons were delivered extemporaneously on 30 April 2015 and have been edited from the transcript.
Application
2 This matter comes before the Tribunal by way of an application by SC Projects Australia Pty Ltd and Sea Trucks Australia Pty Ltd, an unincorporated joint venture trading as Clough Sea Trucks Joint Venture (Clough JV) dated and filed with the Tribunal 23 February 2015. The application is for a review of a decision of an adjudicator, Mr David Court, to dismiss Clough JV's application for adjudication under the Construction Contracts Act 2004 (WA) (CC Act).
3 Under r 9 of the State Administrative Tribunal Rules 2004 (WA) (Rules), the application should have been made within 28 days of the date of the adjudicator's decision, but the application was made some four months out of time. Accordingly, the application also included an application for an extension of that time limit under r 10 of the Rules.
4 It is the application for an extension of time which is the subject of these reasons.
Background facts
5 The respondent, Field Deployment Solutions Pty Ltd (FDS), contracted with Clough JV for the supply, hire and support of 8 Hagglund BV 206 tipper units (vehicles). The vehicles are military built artillery support offroad all terrain track mounted vehicles, modified with two 'tippers' to carry five tonnes of fill material.
6 It is sufficient for the purposes of these reasons to say that FDS then made claims for certain payments under the contract which were not met and that FDS pursued recovery of those payments by way of an application for adjudication under the CC Act (FDS adjudication application).
7 On 8 June 2014, the FDS adjudication application was dismissed by the adjudicator on the basis that it had not been prepared and served within 28 days after the relevant payment dispute arose.
8 On 17 June 2014, FDS applied to the Tribunal for a review of that decision to dismiss, pursuant to s 46(1) of the CC Act (FDS review application).
9 The FDS review application was heard by the Tribunal on 30 July 2014.
10 On 8 August 2014, after the hearing of the FDS review application but before a decision was delivered, Clough JV applied for adjudication of a payment dispute under the same contract (Clough JV adjudication application). This is the adjudication application which was considered by Mr Court.
11 The Tribunal delivered its decision on the FDS review application on 21 August 2014; Field Deployment Solutions Pty Ltd and SC Projects Australia Pty Ltd [2014] WASAT 101 (Tribunal decision). The Tribunal found that the conclusion reached by the adjudicator that the application be dismissed must stand. However, the Tribunal reached this conclusion on the basis that the contract concerned was not a 'construction contract' within the meaning of the CC Act, not for the reason given by the adjudicator; Tribunal decision at [48].
12 The Tribunal decision was delivered during the period in which Mr Court was considering the Clough JV adjudication application and Mr Court read the decision during that period.
13 On 5 September 2014, FDS appealed the Tribunal decision to the Supreme Court of Western Australia, seeking that it be varied on the basis that the contract concerned was in fact a construction contract within the meaning of the CC Act.
14 Three days later, on 8 September 2014, Mr Court dismissed the Clough JV adjudication application on the basis that the contract concerned was not a construction contract. Mr Court said that he had applied the same reasoning that the Tribunal applied in the Tribunal decision, namely that the contract was not a construction contract.
15 The appeal by FDS from the Tribunal decision was heard by Mitchell J on 3 February 2015 and his decision was delivered on 16 February 2015. Mitchell J affirmed the Tribunal decision, but separately declared that the relevant contract was a construction contract within the meaning of the CC Act and that the Tribunal had made an error of law by finding otherwise; Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60.
16 Seven days after delivery of the Supreme Court decision, Clough JV brought its application for review of Mr Court's decision to dismiss and included an application for an extension of time to make that application.
Extension of time the factors to be considered
17 The power of the Tribunal to extend time is found in r 10 of the Rules. It is a discretionary power. The considerations that are relevant to the exercise of that discretionary power are not in dispute and were summarised by Hall J in Di Virgilio v McCleary [2012] WASC 437 at [39] [46] as follows:
39 The discretion exists for the sole purpose of enabling a court or tribunal to do justice between the parties. It can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J).
40 In a passage quoted with approval and applied by Malcolm CJ with whom Kennedy and Franklyn JJ agreed in Gerando v Gerando (1997) 18 WAR 450, 454 Kennedy J held in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as follows:
In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.
41 In O'Connor and The Town of Victoria Park [[2005] WASAT 161] Barker J noted that the four factors identified by Kennedy J in Esther Investments had been referred to in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 by Brennan CJ and McHugh J. The correctness of those four factors had not been questioned by the High Court. Barker J applied those factors in determining whether an extension of time for a review of a decision of the Town Planning Appeal Tribunal should be granted in O'Connor.
42 As noted above, in this case the SAT in addition to referring to O'Connor also made reference to a decision of the Administrative Appeals Tribunal in DHLD v The Executive Director of the Social Security Appeals Tribunal. The latter decision made reference to principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 7 ALD 315. The SAT summarised those principles as follows:
1. There is no onus of proof upon the applicant for extension of time, though an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied it is proper to do so. The prescribed period of 28 days is not to be ignored.
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained.
3. Action taken by the applicant other than by making an application to the court is relevant in assessing adequacy of the explanations for the delay.
4. Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
5. The mere absence of prejudice is not enough to justify the grant of an extension.
6. The merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted.
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of the exercise of the court's discretion.
43 As regards ground 1, the appellant argues that the Tribunal erred by referring to the seven factors referred to in DHLD rather than the four factors referred to in O'Connor. There is an assumption contained in this submission that there is inconsistency between the two sets of factors. However, on examination it is apparent that the two sets of factors are not necessarily addressing exactly the same issues.
44 The four factors distilled in Esther group together under general headings the types of considerations that will be relevant to the exercise of the discretion. The factors derived from Wilcox J's decision in Hunter Valley Developments Pty Ltd identify other questions such as who bears the onus of establishing that an extension should be granted and whether there are some specific circumstances in which an extension may not be justified. To the extent that they both address relevant considerations there is substantial commonality.
45 To extract from decisions dealing with the exercise of discretionary judgment a defined list of factors and then seek to interpret the words used as if they were statutory criteria is inappropriate. Neither of the cases referred to were dealing with the particular provision of concern here. Insofar as those cases set out general principles they do not purport to be exhaustive or to limit the possible relevance of other factors. They are a useful guide to the exercise of the discretion, not a set of strict rules.
46 Whether the factors as summarised in Kennedy J's decision in Esther or as summarised by Wilcox J in Hunter Valley Developments Pty Ltd are utilised it is not apparent that there would be a different outcome. The relevant question is whether the Tribunal took into account all relevant consideration and did not take into account any irrelevant consideration. There is nothing in the SAT's reasoning that would lead to a conclusion that any relevant factors were ignored. Indeed, the reasons for refusing the extension clearly related to issues that fell within the ambit of the factors referred to in Esther.
18 I have approached Clough JV's application for an extension of time on the basis that the relevant factors are the four factors set out in Ester.
Length of the delay
19 In the context of the time allowed under r 9 of the Rules, 28 days, the delay by Clough JV in making its application is quite considerable. The delay cannot be disregarded on the basis that it was insignificant. However, it needs to be seen in the light of the reason for the delay.
Reason for the delay
20 The reason for the delay offered by Clough JV is, in summary, that the decision under review was delivered on 8 September 2014 when, pursuant to the Tribunal decision, the relevant contract was at that point not a 'construction contract'. Clough JV says that this presented a significant obstacle to an application for review.
21 Further, Clough JV says, by 8 September 2014, FDS had already appealed the Tribunal decision to the Supreme Court in part on the question of whether the relevant contract was a 'construction contract'. Clough JV therefore concluded that in these circumstances there was 'little utility' in Clough JV applying to the Tribunal for a review of the adjudicator's decision until the appeal to the Supreme Court had been heard.
22 I accept the applicant's explanation and understand that the failure to apply to the Tribunal was a considered decision on the part of the applicant and was not due to inadvertence or oversight. It was, however, also open to the applicant to apply within time and then seek an adjournment of the review proceedings until the Supreme Court had determined the appeal.
23 I do not consider that the applicant's explanation either advances or hinders the applicant's argument for being granted an extension of time.
Prospects of the underlying application succeeding
24 Of course, anything that I say about the prospects of Clough JV's underlying application succeeding should not be taken as an indication of what might or might not have been decided by the Tribunal in any proceeding to follow.
25 Clearly, if I consider on proper grounds that the underlying application has no or little prospect of success, then it would be wrong to allow it to proceed. The parties have both put forward their submissions as to why in each case they would succeed and the other would fail, but it is not part of this proceeding to make any determination in that regard.
26 My conclusion on that point is that I cannot say with any degree of certainty that Clough JV would or is likely to fail if I were to allow the underlying application to proceed.
27 The adjudicator's decision is extensive and it is unnecessary to set it out in full. Favourable to the applicant, the adjudicator found that he considered that the application for adjudication had been prepared and served in accordance with the provisions of the CC Act. He also found that he was not aware of an arbitrator or other person, or a Court or other body who may be dealing with the matter arising under the adjudication. Further, he was satisfied that the matter in dispute was not too complex to fairly make a determination.
28 However, because of his conclusion that the contract was not a construction contract, he dismissed the application without making a determination of its merits.
29 What I take from that is that there is nothing in the adjudicator's decision which leads me to the conclusion that the underlying application has no prospect of success.
Extent of any prejudice
30 The CC Act was introduced 'to reform earlier unacceptable scenarios of inequality of bargaining power in the construction contract environment'; Re AnsteeBrook; ex parte Mt Gibson Mining Limited [2011] WASC 172; 42 WAR 35 (AnsteeBrook) per K Martin J at 60, with the 'primary aim of keeping the money flowing down the contractual chain'; Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 at 87. A determination under the CC Act does not finally determine the rights of the party to the payment dispute and does not prevent a party from instituting proceedings before another body in relation to the dispute.
31 Importantly in the context of this application, the purpose of the relevant provisions of the CC Act is to provide an expedited process for adjudication of payment claims.
32 I note that Clough JV has filed and served a writ in the Supreme Court (CIV 1529 of 2015) dated 13 April 2015. The claim includes a claim in relation to the subject of the Clough JV adjudication application.
33 FDS is currently arguing that same claim in the Supreme Court and in my view to allow an extension would put FDS to the not inconsiderable expense of, in parallel, dealing with an application in the Tribunal and any review of that decision that might follow. Also, under s 31(2)(a)(iii) of the CC Act, if a decision in court or arbitration proceedings is handed down before the adjudicator reaches a decision then the adjudicator cannot proceed any further with the adjudication process.
34 In my opinion the time for an application for a 'speedy and informal' process (AnsteeBrook at [60]) has long since passed and that it is appropriate now to allow the matter to be resolved through the Supreme Court proceedings.
35 I do not believe that Clough JV, already pursuing its rights against a subcontractor in another jurisdiction, will suffer a significant prejudice if I do not grant an extension of time. This is, of course, to the extent that a prejudice to the applicant is to be considered.
Finding
36 For the reasons set out above, I consider that an extension of time should not be granted and that the application should be dismissed. I so ordered at the conclusion of the hearing of this matter.
Orders
1. An extension of time to apply to the Tribunal is not granted.
2. The application is dismissed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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