WÄRtsilÄ Australia Pty Ltd (ACN 003 736 892) v Primero Group Ltd (ACN 149 964 045) - [2020] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
WÄRTSILÄ AUSTRALIA PTY LTD (ACN 003 736 892) v PRIMERO GROUP LTD (ACN 149 964 045) & ORS
[2020] SASC 162
Judgment of The Honourable Justice Stanley
2 September 2020
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS - ADJUDICATION OF PAYMENT CLAIMS
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - OTHER MATTERS
Wärtsilä was engaged by AGL Barker Inlet Pty Ltd (AGL) under an Engineering, Procurement and Construction contract (EPC) to construct the Barker Inlet power station on Torrens Island. Wärtsilä engaged Primero under a subcontract dated 18 April 2018 (subcontract) to perform civil, mechanical and electrical works and to supply tanks for the construction of the power station.
On 2 March 2020 Primero served a purported payment claim under s 13 of the Building and Construction Industry Security of Payment Act 2009 (SA) (the Act) for the sum of $85,751,118 (ex-GST).
On 10 March 2020 Wärtsilä served Primero with a payment schedule pursuant to s 14 of the Act. Wärtsilä’s assessment of the payment schedule was made notwithstanding that Wärtsilä also set out that the payment claim was not a valid claim under the Act on the basis that, inter alia, there was no available reference date to support the payment claim.
On 31 March 2020 Primero served an adjudication application on the second respondent Resolution Institute, as the authorised nominating authority for the purposes of s 17(3)(b) of the Act. By that application Primero resiled from its reliance on three other reference dates and in lieu thereof contended that there were available reference dates of 15 February 2020 or 28 February 2020. The second of those relied upon “SW Completion”.
On 9 April 2020 Wärtsilä served an adjudication response under the Act expanding on Wärtsilä’s assessment in its payment schedule. The response, inter alia, identified why there was no available reference date to support the claim and why, as a consequence, the payment claim was invalid for the purposes of the Act.
On 27 April 2020 the adjudicator determined that the payment claim was a valid claim under the Act on the basis, inter alia, that it was supported by a reference date of 28 February 2020. Wärtsilä sought an order from this Court in the nature of certiorari to quash this adjudication determination.
At issue is whether Primero had complied with the requirements for SW Completion by 28 February 2020. The parties accept that for SW Completion to have occurred the Manufacturer's Data Reports (MDRs) had to be provided to Wärtsilä and had to be available for inspection by Wärtsilä at the facility land.
Whether this occurred depends upon whether these requirements were satisfied by Primero sending to Wärtsilä an email which included an hyperlink that allowed access to documents stored on a OneDrive server maintained by Microsoft. It is not in dispute that this email was sent on 28 February 2020. The evidence establishes that on that date Wärtsilä was unable to download the documents accessible via the hyperlink.
Held:
1. The Electronic Communications Act 2000 (SA) does not apply to the email from Primero to Wärtsilä on 28 February 2020 containing the OneDrive hyperlink.
2. The provision of the documents for the purposes of item (2) of the definition of SW Completion and making available the documents at the facility land for the purposes of item (8) of the definition of SW Completion was not a notice or other communication in accordance with clause 40 of the subcontract.
3. The documentation to be accessed via the OneDrive hyperlink sent on 28 February 2020 was not capable of being downloaded on that date.
4. The hyperlink did not amount to provision of the documents because the provision of the hyperlink merely provided a means by which Wärtsilä was permitted to download documents stored in the cloud.
5. The hyperlink did not amount to making the documents available for inspection by Wärtsilä at the facility land because until all the documents were downloaded, they were not capable of being inspected at the facility land.
6. The application for judicial review is granted and the adjudication determination of 27 April 2020 made by the third respondent is quashed.
Building and Construction Industry Security of Payment Act 2009 (sA) s 8, s 13; Electronic Communications Act 2000 (SA) s 8, s 10, referred to.
Conveyor & General Engineering v Basetec Services & Anor [2015] 1 Qd R 265; Clarke v Australian Computer Society Inc [2019] FCA 2175, applied.
Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396; Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113, distinguished.
Ausenco Operations Pty Ltd v Ferretti International Ottoway Pty Ltd [2020] SASC 46, discussed.
Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289; The Trustee for Allway Unit Trust Trading As Westside Mechanical Contracting Pty Ltd v R&D Airconditioning Pty Ltd & Ors [2018] SASC 46; Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; Agricultural and Rural Finance v Gardiner (2008) 238 CLR 570; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, considered.

WÄRTSILÄ AUSTRALIA PTY LTD (ACN 003 736 892) v PRIMERO GROUP LTD (ACN 149 964 045) & ORS
[2020] SASC 162
STANLEY J:
Introduction

This is an application for judicial review by Wärtsilä Australia Pty Ltd (Wärtsilä), seeking an order in the nature of certiorari to quash an adjudication determination of the third respondent, Nicholas Floreani, dated 27 April 2020. The adjudicator, Mr Floreani, awarded Primero Group Limited (Primero) the sum of $15,269,674.30 (ex-GST) plus interest and adjudication fees in respect of a “payment claim” made under the Building and Construction Industry Security of Payment Act 2009 (SA) (the Act).
Wärtsilä contends that the adjudicator lacked jurisdiction to determine the payment claim made by Primero. Accordingly, the adjudication determination was infected by jurisdictional error. Wärtsilä submits that is because the payment claim lacked a valid “reference date” for the purposes of s 8 of the Act. A valid reference date is a statutory precondition for the making of a valid claim under s 13 of the Act.[1] The payment claim lacked a valid reference date for the purposes of s 8 because Primero did not complete the work required to achieve the milestone under the contract on or before the reference date of 28 February 2020, which was necessary for the making of a claim under the Act. In this case the relevant work is that described in the contract as “SW Completion”.
[1] Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd [2016] HCA 52 at [61], (2016) 260 CLR 340 at 360-361.
At issue is whether Primero had complied with the requirements for SW Completion by 28 February 2020. Whether that occurred depends on whether Primero had provided or made available for inspection certain documents to Wärtsilä by that date. I will come back to this issue in greater detail after setting out the factual and legal context to this application.
Background
Wärtsilä is the Australian subsidiary of Wärtsilä Corporation, a global supplier and provider of energy solutions. Wärtsilä was engaged by AGL Barker Inlet Pty Ltd (AGL) under an Engineering, Procurement and Construction contract (EPC) to construct the Barker Inlet power station on Torrens Island. Wärtsilä engaged Primero under a subcontract dated 18 April 2018 (subcontract) to perform civil, mechanical and electrical works and to supply tanks for the construction of the power station. The terms of the subcontract relevantly mirrored the terms of the EPC such that the obligations assumed by Wärtsilä under the EPC were imposed on Primero pursuant to the subcontract.
On 2 March 2020 Primero served a purported payment claim under s 13 of the Act for the sum of $85,751,118 (ex-GST).
On 10 March 2020 Wärtsilä served Primero with a payment schedule pursuant to s 14 of the Act assessing the value of the works claimed in the payment claim at $6,402,905.37 (ex-GST), without prejudice to Wärtsilä’s contention that there was no available reference date to support the payment claim. As Wärtsilä had already paid Primero interim on account payments totalling $18,074,80.27, Wärtsilä contended that the net amount payable under Primero’s payment claim was nil dollars.
Wärtsilä’s assessment of the payment schedule was made notwithstanding that Wärtsilä also set out that the payment claim was not a valid claim under the Act on the basis that, inter alia, there was no available reference date to support the payment claim.
On 31 March 2020 Primero served an adjudication application on the second respondent Resolution Institute, as the authorised nominating authority for the purposes of s 17(3)(b) of the Act. By that application Primero resiled from its reliance on three other reference dates and in lieu thereof contended that there were available reference dates of 15 February 2020 or 28 February 2020. The second of those relied upon SW Completion.
On 9 April 2020 Wärtsilä served an adjudication response under the Act expanding on Wärtsilä’s assessment in its payment schedule. The response, inter alia, identified why there was no available reference date to support the claim and why, as a consequence, the payment claim was invalid for the purposes of the Act.
On 27 April 2020 the adjudicator determined that the payment claim was a valid claim under the Act on the basis, inter alia, that it was supported by a reference date of 28 February 2020.
Wärtsilä’s contentions
Wärtsilä contends that the adjudicator lacked jurisdiction because the reference date grounding the entitlement to make the payment claim had not come into existence by 28 February 2020. As a result, the payment claim was invalid. Wärtsilä contends that the work required under the subcontract which had to be completed by 28 February 2020 was, inter alia, the provision of certain reports relating to SW Completion.
The issue is whether SW Completion occurred by 28 February 2020. It is common ground between the parties that if SW Completion had not occurred by that date, the adjudicator’s determination is invalid. Section 8 of the Act conditions an entitlement to a progress payment on a reference date having come into existence. Pursuant to s 13, a person who is entitled to a progress payment under s 8 may serve a payment claim on the person who, under the contract, is liable to make the payment. In this case the relevant payment claim was made on 2 March 2020.
Whether SW Completion was achieved depends upon whether or not the series of requirements within clause 1.1 of the subcontract which defines SW Completion were satisfied by the relevant date. SW Completion is relevantly defined as:
The stage in the performance of the work when:
1.The Subcontractor Works are complete in accordance with this subcontract, except for minor omissions and minor Defects:
(a)     which do not prevent the Contractor proceeding with the EPC Contract Works;
(b)     which the Subcontractor has reasonable grounds for not promptly rectifying; and
(c)     the rectification of which will not adversely affect the convenient use of the Subcontractor Works;
2.the tests, inspections and commissioning required by this subcontract (including Schedule 3) to have been carried out before SW Completion have been carried out, passed and the results of the tests, inspections and commissioning provided to the Contractor;
3.Not Used;
4.Not Used;
5.the Subcontractor has obtained the Subcontractor Authorisations, and satisfied all Authorisation conditions which the Subcontractor is responsible for under this subcontract, which are necessary for the operation and maintenance of the Subcontractor Works and the Facility;
6.Not Used;
7.the Subcontractor has provided all training relating to the Subcontractor works which this subcontract requires the Subcontractor to provide;
8.the completed quality assurance documentation required by the Quality Management Plan for the Subcontractor Works (including Inspection and Test Plans and supporting documentation) is complete (other than minor non-compliances and omissions) and is available for inspection by the Contractor at the Facility Land.
9.the red-line Tank As Built Documents required by clause 18.5 have been submitted to the Contractor and comply with this subcontract (other than minor non-compliances or omissions);
10.the Contractor has received:
(a)     an original executed copy of the Subcontractor Direct Deed as required by clause 8.4;
(b)    all documents and other information required by this subcontract (including Schedule 3) to have been provided to the Contractor prior to the SW Completion; and
(c)     all other information which is reasonably necessary for the safe operation of the Subcontractor Works; and
(d)     the Post Completion Security as defined in Schedule 14.
11.any other matter or condition required by this subcontract to be achieved or satisfied prior to SW Completion has been achieved or satisfied.
For the purposes of this application the relevant issue is whether there was satisfaction of items (2) and (8) of the definition. The documents referred to in items (2) and (8) form the Manufacturer’s Data Reports (MDRs) for the works. The parties accept that for SW Completion to have occurred the MDRs had to be provided to Wärtsilä and had to be available for inspection by Wärtsilä at the facility land. There is no dispute that the facility land is the site at Torrens Island on which the Barker Inlet power station was being constructed. Crucially, whether SW Completion occurred depends upon whether these requirements were satisfied by Primero sending to Wärtsilä an email which included an hyperlink that allowed access to documents stored on a OneDrive server maintained by Microsoft. Again, it is not in dispute that this email was sent on 28 February 2020. The evidence establishes that on that date Wärtsilä was unable to download the documents accessible via the hyperlink.
Wärtsilä’s case is that the provision of an hyperlink is not the provision of the documentation that is contemplated by item (2). Because the documents were not able to be downloaded, Wärtsilä contends that there was no provision of documentation as required by item (2) by 28 February 2020. The documentation was not provided by that date unless it was capable of being completely downloaded by Wärtsilä. For a similar reason, Wärtsilä contends that the documentation required by item (8) was not available for inspection by it at the facility land by 28 February 2020.
Wärtsilä further contends that the provision of the hyperlink did not comply with clause 40 of the subcontract which provides:
40.     NOTICES
40.1   Form of Notice
(a)     A notice or other communication to a Party under this subcontract (Notice) must be:
(1)addressed to the Contractor’s Representative or Subcontractor’s Representative using the relevant details set out in Item 31 or 32 (or any alternative details nominated by Notice to the sending Party); and
(2)in writing and signed by or on behalf of the sending Party.
(b)     The postal address for the Contractor’s Representative and Subcontractor’s Representative must be within Australia.
40.2 How Notice must be given and when Notice is received
(a)     A Notice must be given by one of the methods set out in the table below.
(b)     A Notice is regarded as given and received at the time set out in the table below. However, if this means the Notice would be regarded as given and received outside the period between 9:00 a.m. and 5:00 p.m. (addressee’s time) on a Business Day (business hours period), then the Notice will instead be regarded as given and received at the start of the following business hours period.

Method of giving Notice

When Notice is regarded as given and received

By hand to the nominated address

When delivered to the nominated address

By trackable post or courier to the nominated address

At 9:00 a.m. (addressee’s time) on the second Business Day after the date sent.

By email to the nominated email address

When the email (including any attachment) comes to the attention of the recipient Party or a person acting on its behalf.

40.3 Notice must not be given by other electronic communication
A Notice must not be given by electronic means of communication, other than email as permitted by clause 40.2.

40.4 Not Used.

Wärtsilä contends that this provision in the subcontract is relevant to the operation of the Electronic Communications Act 2000 (SA) (EC Act). The EC Act provides that where a person is required to produce a document or give information in writing that requirement is met, in prescribed circumstances, if the person produces the document in electronic form or gives the information by means of an electronic communication.[2] In this case Wärtsilä submits Primero cannot rely on the EC Act. One of the prescribed circumstances is that the person to whom the information is given, or to whom the document is produced, consents to it being given or produced by means of an electronic communication.[3] Wärtsilä says this prescribed circumstance did not exist because cl 40.3 of the subcontract stipulated that the only way in which a notice under the subcontract could be given by electronic means of communication was by email to the nominated email address. This conditioned the required consent for the purpose of the EC Act. Wärtsilä submits that the documents were not given to it by email but by the hyperlink. Wärtsilä submits that the provision of the hyperlink was not the provision of the documentation for the purpose of cl 40 of the subcontract. As a result, SW Completion did not occur. In the alternative, it contends that, if the provision of the hyperlink did accord with cl 40, cl 40.2 provided that where Primero provided notice by email, it was deemed to be received when the email (including any attachment) came to the attention of Wärtsilä or a person acting on its behalf. The documents could not come to the attention of Wärtsilä or a person acting on its behalf until it was completely downloaded. The MDRs were not downloaded completely until 2 March 2020. Accordingly, the MDRs were not provided or made available until after 28 February 2020.
[2] Electronic Communications Act 2000 (SA) ss 8 and 10.
[3] Electronic Communications Act 2000 (SA) ss 8(1)(b) and 10(1)(c).
Finally, Wärtsilä submits that the provision of the hyperlink was not an effective provision of documents for the purpose of the EC Act because it was not an electronic communication within the definition in the EC Act and the documents were not capable of being stored.
Primero’s contentions
Primero contends that there is no jurisdictional error. The reference date had come into existence by 28 February 2020. SW Completion was achieved by that date. The documents referred to in items (2) and (8) of the definition of SW Completion were provided within the MDRs and were available for inspection at the facility land.

The subcontract does not expressly provide how the MDRs were to be provided to Wärtsilä or what constitutes provision. Items (2) and (8) of the definition of SW Completion require Primero to provide certain documentation and to make available for inspection other documentation. It was common ground that documentation was compiled within the MDRs. The provisions governing notice under the subcontract found in clause 40 did not apply to the provision of documentation required for SW Completion because those documents were neither notices or other communications within the meaning of clause 40.
As the subcontract did not prescribe any particular mechanism for the provision of the MDRs, the meaning of “provision” must be found in a consideration of extrinsic materials. The correspondence between the parties made clear that Wärtsilä and Primero agreed, at Wärtsilä’s request, to the electronic provision of materials required under the Scope of Works, some through the use of the DCM365 cloud-based system and others simply by email. It was open for Primero to determine that “provision” pursuant to the subcontract meant provision by electronic means. Primero submits that such a construction is consistent with commercial reality.[4]
[4] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 at [35], (2014) 251 CLR 640 at 656-657.
The DCM365 system was not a sophisticated document management system and Primero had some difficulties in utilising the system throughout the course of the subcontract. Because of the problem with the DCM365 system the OneDrive hyperlink was created to provide the complete MDRs to Wärtsilä on 28 February 2020. This was to prevent the reoccurring issues encountered previously with the uploading of documents using DCM365. The OneDrive hyperlink was capable of being utilised to download and view the three-part PDF document which constituted the MDRs, on a computer with the same specifications as those utilised by Wärtsilä. Both Mr Palma and the expert Mr Michael said the OneDrive hyperlink was capable of allowing Wärtsilä to access the documentation and subsequently download the MDRs to Wärtsilä’s computer. If there were errors with the downloading of the documents via the OneDrive hyperlink, this technical error related to Wärtsilä and did not change the objective fact that the MDRs were provided.
The MDRs consisted of more than 100,000 pages of documentation. The electronic provision of these documents by Primero which permitted Wärtsilä to navigate the documents was practical and in accordance with commercial good sense. It was consistent with the operation of the EC Act which permitted the provision of documents by electronic communication. Primero could not be found in breach of the obligations of SW Completion because of some technical difficulty at Warsila’s end. The fact is Primero provided the MDRs to Wärtsilä. The date by which Wärtsilä completed downloading the documents is not relevant to whether the documents were provided or available for inspection by 28 February 2020.
The provision of the MDRs via the OneDrive hyperlink was sufficient to satisfy the requirements of item (2) of the definition of SW Completion. Whether and when they were successfully downloaded by Wärtsilä is irrelevant to the issue of whether SW Completion had occurred by 28 February 2020.
In addition, the MDRs were made available for inspection by Wärtsilä at the facility land. As noted earlier, Primero contends there was a general agreement between it and Wärtsilä that documents required under the Scope of Works would be provided primarily by electronic communication. It was understood between the parties that the documents referred to in item (8) would be included in the MDRs. Given there was a OneDrive hyperlink containing all of that material, any person wanting to inspect that documentation on facility land could simply be provided a copy of the hyperlink. The reasonable business person would interpret the subcontract in this way. Again, whether the documents were downloaded by Wärtsilä, and when, is irrelevant.
In any event, there is no evidence that Wärtsilä had ever requested a hardcopy of the documentation be made available at the facility land. Accordingly, Wärtsilä waived this requirement as a condition precedent for SW Completion.
Primero submits that once it sent Wärtsilä an email with an hyperlink providing access to the documents on the OneDrive server on 28 February 2020 the documents were provided and available for inspection at the facility land by anyone who had access to that hyperlink. In those circumstances SW Completion was achieved. Accordingly, the jurisdictional fact existed.
The evidence
Wärtsilä relied on the evidence of Joakim Fagerudd, Sumaira Amanat, Juha Nurmi, NR Lakshmanan, Mikko Piekkala, and Arash Moradi. Their evidence in chief was by affidavit.
Joakim Fagerudd is a project planner and controller at Wärtsilä Finland Oy, the parent company of Wärtsilä. He was directly involved in the management of the construction project on behalf of Wärtsilä. Mr Fagerudd gave evidence that there were discussions between the parties in December 2019 and January 2020 regarding SW Completion and the wavier agreement which, inter alia, imposed the requirement that the MDRs be provided by 28 February 2020. He gave evidence of Primero sending Wärtsilä an hyperlink on 28 February 2020 that purportedly contained the MDRs.
Mr Fagerudd read an email from Mr Lakshmanan, a senior project manager at Wärtsilä India Pvt Ltd, a subsidiary of Wärtsilä Finland Oy. This email, dated 3 March 2020, was sent to Dean Ercegovic of Primero informing Mr Ercegovic that Wärtsilä were unable to view the MDRs. On 4 March 2020 Primero delivered via courier a USB disk drive (USB) to the project site which was said to contain the MDRs.
The email containing the hyperlink sent on 28 February was the first time that anyone who worked for Wärtsilä was aware that Primero were contending the MDRs were complete, and the USB delivered on 4 March 2020 was the first time a purported copy of the MDRs was at site and able to be reviewed.
Mr Fagerudd described in some detail the importance of the content of the MDRs in the context of the contract between Wärtsilä and AGL. When AGL reviewed the MDRs provided on the USB on 4 March 2020 they identified missing documents and information as well as other errors. Wärtsilä having confirmed these issues informed Primero of these deficiencies by letter dated 2 April 2020.
In cross-examination Mr Fagerudd agreed that the subcontract and the EPC were prepared as back-to-back contracts. However, Wärtsilä’s scope of work under the EPC included more work than Primero’s scope of work under the subcontract. Wärtsilä was under an obligation in the EPC to provide to AGL the same MDRs that Primero had to provide to Wärtsilä under the subcontract. This was an essential part of achieving “Facility Completion” under the EPC and was an example of the back-to-back nature of the contracts. He agreed that when Primero completed its works to achieve SW Completion under the subcontract, Wärtsilä could then complete its works to achieve Facility Completion under the EPC.
Mr Fagerudd was aware that Mr Nurmi forwarded to AGL the email containing the hyperlink provided by Primero. He was also aware that the waiver agreement which imposed the obligation on Primero to provide the MDRs by 28 February 2020 also concerned the waiver of provision of post-completion security, and so Primero would have been aiming to achieve SW Completion on or before that date. He also agreed that Primero had provided a submission of part of the MDRs information on 28 January 2020. At the time of the waiver agreement on 10 February 2020 Wärtsilä had accepted this partial submission, as delivery of part of the MDRs under the subcontract, via provision of an hyperlink contained in an email.
Sumaira Amanat is Wärtsilä’s Site Quality Auditor for the Barker Inlet project. Part of her role involves document control and management, which includes collecting test, inspection, commissioning, and quality records submitted by Primero.
On 28 February 2020 she was forwarded a copy of an email from Mr Nurmi. The email was sent from Primero to various Wärtsilä personnel, and contained an hyperlink that purportedly contained the MDRs. When she clicked on the hyperlink her internet browser application opened and she could see three PDF files and two WinZip files. She clicked on each PDF file in turn but was not able to open or view the contents of the files. The internet browser application stopped working and did not respond to any input.
Ms Amanat shut down her computer and restarted her internet browser application in order to try to download the PDF files to her computer and to open the files from there. The files appeared to start downloading and it took more than six or seven hours for one of the PDF files to download. She was not aware whether the entire file was downloaded or whether the download just stopped working. When she attempted to open the files that had apparently been downloaded, her computer was unable to open them and the application used to attempt to open them stopped working. She was not able to open or view the contents of the files.
On or about 2 March 2020 Ms Amanat emailed Mr Lakshmanan to inform him of the difficulties in downloading the MDRs. On or about 3 March 2020 she provided a copy of the PDF files she was able to download to Arash Moradi, a senior engineer at AGL. He told Ms Amanat that they were unable to open or view the files either.
On or about 3 March 2020 Ms Amanat again emailed Mr Lakshmanan to inform him she could not access the MDRs from the hyperlink and that when she attempted to download the files her computer stopped working.
In cross-examination she agreed that she provided the copy of the PDF files to Mr Moradi at AGL on a hard drive, after removing the Site Instructions and Technical Queries (SIs and TQs). It was put to her, and she agreed, if she had removed the SIs and TQs she could navigate the document. She agreed she could access the document for the purpose of removing things before she provided the documents to AGL.
Ms Amanat understood documents were issued to Wärtsilä via the DCM365 document control management system. She said DCM365 is a method by which data is shared from a remote server by the provision of links, once an individual is a part of that specific document sharing group.
When taken to the email sent from Saman Majrouh, a project engineer at Primero, to Mr Nurmi of 28 January 2020 that contained the hyperlink to the partial MDRs submissions, Ms Amanat said that hyperlink was not provided by the DCM365 system. She thought it was using Primero’s system. This partial submission was well set-out and she was able to download it all via this hyperlink. However for the final MDRs submission on 28 February 2020 it was a different, simple hyperlink that could expire at any time. When she clicked on the hyperlink there were bare files as opposed to the ordered structure with subfolders provided by the 28 January 2020 submission. The two links were provided by different systems.
Ms Amanat was taken to an email from Mr Nurmi to Mr Majrouh of 13 February 2020 in which Mr Nurmi states Wärtsilä was having trouble downloading the partial MDRs. Ms Amanat disagreed and said there was no issue with the partial MDRs received on 28 January 2020. Her evidence in that regard is inconsistent with the contemporary documentary evidence which I prefer.
Ms Amanat agreed that from October 2019 onwards, Primero started sending larger documents using its own hyperlink and Wärtsilä accepted that hyperlink for the submission of documents, including MDRs.
Juha Nurmi is a site manager at Wärtsilä Finland Oy. He was on site at Torrens Island on 28 February 2020 when he received the email from Tara Edwards of Primero containing the hyperlink to the MDRs. He did not attempt to open the hyperlink as it was not part of his role, but later that day he forwarded the email to Ms Amanat requesting that she download the MDRs.
Mr Majrouh of Primero had emailed Mr Nurmi on 28 January 2020 with a SharePoint hyperlink to a partial MDRs submission. To Mr Nurmi’s knowledge this had not been the consistent practice before 28 January 2020. The main method of document submittal was through DCM365. Mr Nurmi replied to that email on 13 February 2020 saying that Wärtsilä had been able to download part of the documentation but not all of it. He asked whether they could get the documentation via a USB, both the partial submission and the full submission at the end of February. This request was to ensure Wärtsilä could access all of the information. Mr Majrouh responded confirming he would send the partial submission via USB and would also do the same for the final MDRs. As such, Mr Nurmi was expecting that Wärtsilä were going to receive the final complete MDRs on a USB.
In cross-examination Mr Nurmi was taken to emails from various Primero staff to Wärtsilä employees that included documentation delivered via the Primero SharePoint system. This included an email from Mr Majrouh of 25 October 2019 regarding the complete verification certificate for the ‘fuel gas system’; an email from Derrick McInnes dated 5 November 2019 regarding the complete verification certificate for the fire detection ring; and an email from Royce Ferguson dated 5 December 2019 relating to the complete verification certificate for the 124 radiator and tank area lighting. Mr Nurmi had been copied into all three emails and once having his attention drawn to them agreed his recollection as to how documents were provided prior to 28 January 2020 was incorrect.
Mr Nurmi was challenged as to his expectation of receiving the final MDRs submission on 28 February 2020 on a USB. It was put to him that this was to be in addition to receiving it via a hyperlink, not instead of such a method. However Mr Nurmi said he had not considered whether he would receive it in one form or two. He said he was expecting to get the USB so that they could practically open the MDRs.
Mr Lakshmanan was also on site at Torrens Island on 28 February 2020 when he received the email from Tara Edwards of Primero containing the hyperlink to the MDRs. He did not attempt to open the hyperlink as it was not part of his role, but on 2 March 2020 he emailed Ms Amanat requesting she forward the MDRs to AGL for their review.
I received evidence concerning Mr Lakshmanan’s conduct in relation to compliance by Wärtsilä with the EPC. I would exclude that evidence as irrelevant. The EPC is a different instrument and the evidence could only be relevant to Mr Lakshmanan’s subjective understanding of Wärtsilä’s obligations under that contract.
In cross-examination Mr Lakshmanan agreed the obligations that Primero had, referable to the test results and inspections, were mirrored by the obligations that Wärtsilä had to AGL in the Facility Completion definition but there were more things that Wärtsilä had to do to meet AGL’s requirements. He agreed apart from changing the words 'principal' to 'contractor' and the words in brackets in the SW Completion ‘including schedule 3’ to 'including the principal's requirements', the other obligations in item 2 of the definition of SW Completion in the subcontract are the same as the definition of Facility Completion in the EPC. Similarly, item 8 is identical apart from the changing of the descriptor from 'contractor' to 'principal'; the requirement for the provision of quality assurance documentation; and it being available for inspection at the facility land. Mr Lakshmanan said that at no point has Wärtsilä communicated to AGL that Facility Completion had occurred.
He said he did not direct anybody to provide a hard copy of the documentation referred to in item 8 of the definition of Facility Completion to AGL at the facility land. He was not aware of the size of the documentation at the time Wärtsilä realised the problems that the site faced in accessing or downloading the documents in electronic form.
Shown his email to Ms Amanat where he asked her to remove the SIs and TQs, he said that in the partial MDRs submission the SIs and TQs were removed before submission to AGL. As a result he thought it prudent to remind Ms Amanat that this should also occur before the final submission to AGL. He expected that submission would occur electronically, but left it to the site team to determine exactly how that would occur.
He wanted Ms Amanat to check with AGL that they agreed that everything had been received for the MDRs because apart from stripping out the SIs and the TQs what Primero had given to Wärtsilä in satisfaction of clause 8 of the definition of SW Completion was going to be what Wärtsilä gave AGL in satisfaction of clause 8 of the definition of facility completion in the head contract.
Ms Amanat emailed Mr Lakshmanan on 3 March 2020 as she could not access the MDRs from the hyperlink and when she attempted to download the files her computer stopped working. Mr Lakshmanan sent the content of this email to Mr Ercegovic of Primero in a separate email of 3 March 2020. He requested Primero create folders and subfolders section-wise as occurred with the partial MDRs submission and send the same via USB.
Mr Lakshmanan was asked about his letter to Primero of 2 April 2020 asserting that Wärtsilä did not consider SW Completion had occurred. He said this was because of the difficulties in accessing and downloading the MDRs and the MDRs package received was not complete. He agreed he did not claim that what was provided on 28 February 2020 did not comply with clause 40 of the subcontract. This was not because he considered it irrelevant, but rather because he did not think it necessary to refer to it.
Mikko Piekkala is a senior contract manager at Wärtsilä Finland Oy. He also received the email with the hyperlink purporting to contain the MDRs on 28 February, but did not attempt to click on the hyperlink as it was not part of his role. He was not cross-examined.
Arash Moradi is a senior mechanical engineer at Aurecon group. They were contracted by AGL to provide engineering services for the Barker Inlet project. He received a portable hard drive from Ms Amanat on or about 3 March 2020 that contained three PDF files (the MDRs). He copied them to his computer, however when he attempted to open the files he could not view any of their contents. The PDF software on his computer would crash. He attempted to open the files several times but the software would crash on each occasion. After this occurred he emailed Ms Amanat to tell her the MDRs would not be accepted in this format. Earlier in January Wärtsilä had provided on a different hard drive MDRs for review in an electronic, structured format with folders and subfolders with smaller PDF files relevant to specific topics. Mr Moradi was not cross-examined.
Primero relied on the evidence of Renyval Palma, Tara Edwards, Saman Majrouh, and Darren Michael. They also gave their evidence in chief by affidavit except for Mr Michael’s evidence which was in the form of an expert report.
Renyval Palma is a software systems manager and the head of information technology at Primero. He undertook an investigation of the OneDrive hyperlink provided by Primero to Wärtsilä on 28 February 2020. OneDrive is a file hosting service provided by Microsoft. It allows files to be stored online and shared with other users.
A log of activity is retained for OneDrive files. Mr Palma reviewed the log for the files that were provided to Wärtsilä on 28 February 2020.
Mr Palma investigated the purported problems Wärtsilä had in downloading and opening the MDRs. He was able to successfully download each part of the MDRs using a computer he asserted had the same specifications as the one used by Ms Amanat. He attempted to open the PDF files using Google Chrome but could not do so. However he was able to open all of the files using Adobe PDF Reader. He was able to navigate the MDRs successfully, including via the use of internal hyperlinks. He was able to split the files, including when running other applications in the background of his computer.

In cross-examination Mr Palma agreed that access to files within the OneDrive system can be either permanent or temporary, depending on the choice of the host (in this case Primero). The right of access exists for as long the host wants the right of access conferred. This is in contrast to an email attachment, in that once an email has been received the attachment is forever available to the recipient, subject only to the arrangements that the recipient has with its own internet service provider.
Mr Palma agreed that when comparing the two methods of document sharing used in this matter, namely DCM365 and OneDrive, one difference between the two methods is that in the case of a Primero OneDrive hyperlink, the permanence of the accessibility to the documents is subjected to the ongoing consent of Primero whereas in contrast, the uploading of documents to DCM365 places the documents under the control of the host of that site, namely Wärtsilä.
Mr Palma agreed that when documents are saved to a OneDrive storage location the files are stored on a Microsoft server. When a person clicks on an hyperlink that takes them to the OneDrive site, the computer will initiate a connection to the remote server where that computer data is saved in a file. Until it is effectively downloaded and effectively decoded by the local computer, it still exists as binary data that is sitting on the local computer until a program is run through the local system that converts the data into something readable.
Mr Palma also agreed that the log relating to the files provided on 28 February 2020 does not address whether the download was successful at the recipient end. Neither does the log provide information as to whether the downloaded files could be opened. He agreed that the log did show the first reference to part 3 of the file being downloaded occurred on 2 March 2020.
Tara Edwards was the lead document controller for Primero on the Barker Inlet project. She was responsible for transmitting technical documents to Primero’s contractors, subcontractors and principals.
On 26 April 2018 Wärtsilä provided Primero with information about DCM365. This information was forwarded to Ms Edwards on 1 May 2018. By 16 May 2018 Primero was set-up to use DCM365. This project was the first on which Ms Edwards used DCM365. Throughout the performance of the contract Ms Edwards used DCM365 to transmit various technical documents to Wärtsilä. It was much less sophisticated than other document management systems she had previously used. It had limitations, including an inability to upload folders.
It was possible to upload PDF files to DCM365. However Ms Edwards had trouble when she attempted to upload large PDF files. On 14 October 2019 she attempted to upload Primero’s vendor MDRs to DCM365. On 15 October 2019 she emailed Wärtsilä staff members noting she had uploaded the MDRs but could not add them to a transmittal sheet. She requested some assistance from Wärtsilä as to how to add the documents and send the transmittal. After various emails back and forth she emailed Wärtsilä on 21 October 2019 stating she was able to transfer all of the documents to a transmittal except for two. On 22 October she received an email noting that the issue with the documents was file size, but that Wärtsilä’s development team had completed the transmittal process for Primero. She had a similar experience in December 2019 when attempting to upload MDRs documents to Wärtsilä via DCM365. She received an email on 16 December 2019 noting the issue had been resolved by Wärtsilä moving the files manually due to their size. This task could only be performed by Wärtsilä.
On 28 February 2020 Ms Edwards created the OneDrive hyperlink to send the MDRs to Wärtsilä. She was provided with the MDRs as three separate PDF documents on a USB. Mr Majrouh requested that she upload the MDRs to a OneDrive hyperlink to be sent to Wärtsilä. Ms Edwards did so by copying the files to her computer, creating the hyperlink, uploading the files to the hyperlink, and created a document transmittal. This took a few hours, and no difficulties were experienced. She then emailed this hyperlink to Wärtsilä. Based on her experience using DCM365 she anticipated she would have encountered difficulties trying to upload and submit the documentation using DCM365 and considered OneDrive would be a more effective platform to provide the MDRs documentation.
In cross-examination Ms Edwards conceded that she did not undertake an assessment of OneDrive that led her to consider it a more effective platform for the provision of MDRs documentation. She merely fulfilled the request made by Mr Majrouh. She did not turn her mind to whether it should be delivered in some other form. Ms Edwards said she made an enquiry with Mr Majrouh about using Primero’s document management system. This query was passed on to Wärtsilä, but Ms Edwards did not hear anything further about her request. Wärtsilä never indicated it was prepared to accept documents by way of OneDrive, but it never indicated it was not prepared to do so.
Saman Majrouh is a project engineer at Primero. He became the Technical and Quality Manager for the Barker Inlet project around June 2019 and was directly involved in the management and implementation of matters relating to technical and quality compliance on the project. He was aware that Primero had to provide the MDRs as part of its scope of work on the subcontract and his role was to manage a team responsible for collating the data and reviewing the MDRs prior to submission.
Primero provided part of the MDRs materials to Wärtsilä on two occasions prior to 28 February 2020. This was on 22 October 2019 and 28 January 2020. Mr Majrouh received no queries from Wärtsilä in response to the submission of 28 January 2020. In cross-examination he was taken to various emails commencing on 13 February 2020 that were said to be in response to his email of 28 January 2020. It was suggested that these evidenced Wärtsilä’s complaints about the efficacy of the hyperlink. He denied these emails were in response to the content of the partial MDRs but rather concerned the form of the submission. Neither of the submissions of 22 October 2019 or 28 January 2020 were formal MDRs submissions and so did not need to be sent via document control. This was in contrast to the provision of MDRs on 28 February 2020 which was logged and sent by the Primero document control team.
Mr Majrouh was aware Wärtsilä had its own document management system but was also aware from experience that the system had previously had issues with the transmission of larger files from Primero. He emailed Wärtsilä about these deficiencies on 10 October 2019, received a holding response, but did not receive a more substantive response. Primero sought guidance from Wärtsilä on the method of the final submission of the MDRs on 9 January 2020 but did not receive a response. It also sought guidance on the proposed structure and format of the MDRs on 19 July 2019 and 20 November 2019 but did not receive a response.
Shortly before 28 February 2020 Mr Majrouh commenced the arrangements for the complete MDRs to be sent to Wärtsilä. He arranged for it to be handled by Primero document control. Prior to submission he checked the MDRs to see whether the hyperlinks within each part of the files worked. He could navigate the MDRs easily.
In cross-examination Mr Majrouh accepted that when he said Primero had sought guidance on the ‘method’ of submission of the MDRs he meant the format of the document as distinct from the manner in which it would be provided. When Wärtsilä had approved the structure of the MDRs on 18 January 2020 that resolved the query Primero had regarding the format of the MDRs.
He also agreed that in order to comply with the contract Primero would need to provide a whole document that comprised the totality of the MDRs, and that this had not occurred before 28 February 2020. Primero was intending to meet the requirement of SW Completion by a formal submission of the MDRs as single document.
Mr Majrouh understood from Mr Nurmi’s email of 13 February 2020 that Wärtsilä were having issues with downloading the files provided on 28 January 2020. Wärtsilä believed this to be due to the size of the files. When Mr Nurmi asked for the documentation relating to the 28 January 2020 submission and the final MDRs submission to be provided by USB Mr Majrouh understood him to be saying Wärtsilä would like to receive a copy by USB in addition to the OneDrive hyperlink, not that the USB would be the only form of submission. His intention was to provide the submission by document control. He understood this request to provide the MDRs by USB as an alternative, not a replacement. He had never previously submitted MDRs via USB. It is submitted formally through document control.
Darren Michael prepared an independent expert report relating to the OneDrive hyperlink and accessing the MDRs. Using a computer he considered had similar specifications to the one used by Wärtsilä, together with a commonly used internet browser, Google Chrome, and PDF viewing software, Adobe PDF Reader, he was able to access, download, open, read and navigate all three parts of the MDRs PDF files. Part 1 took 1 hour and 3 minutes to download. Part 2 took 42 minutes to download. Part 3 took 1 hour and 6 minutes to download. It was his opinion that all three parts of the MDRs PDF files were available and accessible to Wärtsilä.
Building and Construction Industry Security of Payment Act 2009 (SA)
The adjudicator’s jurisdiction is prescribed by the terms of the Act.
In Ausenco Operations Pty Ltd v Ferretti International Ottoway Pty Ltd[5] Doyle J described the scheme of the Act as providing a parallel regime, separate from the contract, for the prompt making of progress payments under a construction contract. In short, the Act is intended to provide a speedy and effective means of ensuring cashflow to builders from parties with whom they contract.
[5] [2020] SASC 46 at [39].
Section 13(1) provides:
A person referred to in section 8 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the contract concerned, is or may be liable to make the payment.
“Progress payment” is defined by s 4 of the Act to mean, inter alia, a payment to which a person is entitled under s 8.
Section 8 provides:
On and from each reference date under a construction contract, a person—
(a) who has undertaken to carry out construction work under the contract; or
(b) who has undertaken to supply related goods and services under the contract,
is entitled to a progress payment.
“Reference date” is defined in s 4 of the Act as:
(a) a date determined by or in accordance with the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract; or
(b) if the contract makes no express provision with respect to the matter—the last day of the named month in which the construction work was first carried out (or the related goods and services were first supplied) under the contract and the last day of each subsequent named month;
Section 13(5) of the Act provides that a claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.
The effect of sections 8 and 13 of the Act, read in light of the defined terms, is that the existence of a “reference date” within s 8 is a statutory precondition to the making of a valid payment claim under s 13(1) of the Act.
In Southern Han the High Court said:[6]
The description in s 13(1) of a person referred to in s 8(1) is of a person whom s 8(1) makes entitled to a progress payment. Section 8(1) makes a person who has undertaken to carry out construction work or supply related goods and services under a construction contract entitled to a progress payment only on and from each reference date under the construction contract. In that way, the existence of a reference date under a construction contract within the meaning of s 8(1) is a precondition to the making of a valid payment claim under s 13(1).
[6] [2016] HCA 52 at [61], (2016) 260 CLR 340 at 360-361.
Accordingly, the adjudicator’s jurisdiction to determine a payment claim under s 22 of the Act is only enlivened by the existence of a valid payment claim, which turns on the existence of a reference date. So understood, the existence of a reference date is a jurisdictional fact that must be satisfied in order for a payment claim to be adjudicated under the Act. In the absence of that jurisdictional fact being satisfied, the statutory power to determine the payment claim is not enlivened and any purported determination will be tainted by jurisdictional error and therefore invalid.
A reference date is the earliest date on which a payment claim may be served. Accordingly, it is not possible to serve a valid payment claim prior to a reference date accruing.[7]
[7] All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289 at [17], [32]; The Trustee for Allway Unit Trust Trading As Westside Mechanical Contracting Pty Ltd v R&D Airconditioning Pty Ltd & Ors [2018] SASC 46 at [136] and [144].
Construction of the subcontract
At issue is the proper construction of the subcontract. The principles applicable to contractual construction are explained by the High Court in Electricity Generation Corporation v Woodside Energy Ltd[8] and in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd.[9]
Consideration
[8] [2014] HCA 7 at [35], (2014) 251 CLR 640 at 656-657.
[9] [2015] HCA 37 at [46]-[52], (2015) 256 CLR 104 at 116-117.
The issue
At issue is whether Primero achieved SW Completion by providing to Wärtsilä the documents specified in item (2) and by making available at the facility land the documents specified in item (8). The parties dispute whether the subcontract expressly specified how this was to occur.
Findings concerning the hyperlink
I find that on 28 February 2020 Primero provided to Wärtsilä by email a OneDrive hyperlink providing access to a file in the cloud constituting the MDRs. I also find that on that date Wärtsilä was unable to download completely that documentation. I accept the evidence of Ms Amanat in that regard.
I find the hyperlink did not amount to provision of the documents for the purposes of item (2) of the definition of SW Completion because the provision of the hyperlink merely provided a means by which Wärtsilä was permitted to download documents stored in the cloud. Until it did so, those documents had not been provided. I also find that the hyperlink did not amount to making the documents available for inspection by Wärtsilä at the facility land for the purposes of item (8) because until all the documents were downloaded, they were not capable of being inspected at the facility land. The contractual requirement in item (2) that the specified documents be “provided to the Contractor” must be understood in its commercial context. The same proposition applies in relation to the contractual requirement in item (8) that the specified documents are “available for inspection by the Contractor at the Facility Land”.
The meaning of “provided” and “available for inspection”
The construction of the obligation in the subcontract that documents be “provided” and “available for inspection” can be distilled to a constructional choice between providing a means by which the documents are merely capable of being accessed (by hardcopy or electronically) by the recipient, and the provision of a means by which the documents are not only capable of being accessed (by hardcopy or electronically), but are capable of being read (in hardcopy or electronically) in their entirety, and completely downloaded, by the recipient (in the case of electronic delivery). For the reasons which follow the latter construction is to be preferred.
While the ordinary grammatical meaning of “provided” is supplied or furnished[10] the expression must be understood to mean, in the context of the subcontract, that the documents are in the possession of Wärtsilä such that they are capable of being accessed and read. In the same way, the requirement that the documents specified in item (8) are available for inspection at the facility land is satisfied when the documents could be accessed and read at Wärtsilä’s site office on Torrens Island. That is consistent with the definition of “available” in the Australian Concise Oxford Dictionary meaning “capable of being used; at one’s disposal”. Moreover, the contractual obligation was not merely that the specified documents were “available”. The obligation was that the documents were available “for inspection by the Contractor at the Facility Land”. The commercial purpose of this obligation was to enable Wärtsilä to view and consider the documents on a continuing basis. As a matter of fact this could not occur unless Primero permitted Wärtsilä to have continuing access to the documents through the hyperlink or Wärtsilä downloaded the documents.
[10] The Australian Concise Oxford Dictionary, 3^rd edition.
Support for this construction is found in the reasons of Phillip McMurdo J in Conveyor & General Engineering v Basetec Services & Anor[11] and Wigney J in Clarke v Australian Computer Society Inc.[12]
[11] [2014] QSC 30, [2015] 1 Qd R 265.
[12] [2019] FCA 2175.
In Conveyor & General the Court had to consider whether two files which were stored on “Dropbox” had been served in accordance with s 39 of the Acts Interpretation Act 1954 (Qld) (AIA). Dropbox is a service similar to that provided by OneDrive. It is a facility whereby an electronic file is remotely stored by a third party so that any computer, with the relevant authority, can view the file. Basetec had sent Conveyor & General an email with contained hyperlinks to the two files stored on Dropbox. McMurdo J held that the files stored on Dropbox had not been served within the meaning of s 39 of the AIA.[13] Section 39 provided that a document could be served by “leaving it at, or sending it by post, telex, facsimile or similar facility” to a corporation’s office. McMurdo J, relying on an earlier judgment of Austin J in the New South Wales Supreme Court in Austar Finance Group Pty Ltd v Campbell,[14] held that the documents in the Dropbox file had not been “left” at or “sent” to the applicant’s office at least until the applicant went to the Dropbox site and opened the file and probably not until its contents had been downloaded to a computer at the applicant’s office.[15] This was because where an electronic message is received and held by a remote third party server nothing can be said to have been “left” at the receiver’s premises, at least until the email is accessed.
[13] Acts Interpretation Act 1954 (Qld) s 39(1)(b).
[14] [2007] NSWSC 1493, (2007) 215 FLR 464.
[15] [2014] QSC 30 at [32], [2015] 1 Qd R 265 at 271.
In Conveyor & General the Court further considered whether the inclusion of the Dropbox hyperlinks in the email meant that the information from the Dropbox files had been given via an electronic communication within the meaning of s 11 of the Electronic Transactions (Queensland) Act 2001 (Qld) (ET Act). The ET Act relevantly defined “electronic communication” to mean “a communication of information in the form of data, text or images by guided or unguided electromagnetic energy”. While McMurdo J found that s 11 of the ET Act did not apply because the applicant had not agreed to be electronically served, he also held that even if it did, the information in the Dropbox file was nevertheless not part of the relevant electronic communication, which was the email. That was because none of the data, text or images within the documents on the Dropbox server were communicated “by guided or unguided electromagnetic energy”. Rather, there was an electronic communication of the means by which other information in an electronic form could be found at, read and downloaded from the Dropbox website.[16] McMurdo J said:[17]
Actual service does not require the recipient to read the document. But it does require something in the nature of a receipt of the document. A document can be served in this sense although it is in electronic form. But it was insufficient for the document and its whereabouts to be identified absent something in the nature of its receipt.
[16] [2014] QSC 30 at [28], [2015] 1 Qd R 265 at 270.
[17] [2014] QSC 30 at [37], [2015] 1 Qd R 265 at 272.

The reasoning in Conveyor & General was applied by the Federal Court in Clarke v Australian Computer Society. That case concerned, inter alia, whether for the purposes of the rules of the respondent society, a file which was able to be accessed via an hyperlink which was included in an email could be regarded as having been “sent” to the recipient of the email. The rules defined “send” to mean “transmit to an address specific to each recipient … by electronic communication”. Wigney J held that the information, in the form of data or text, sent by the respondent society in an email, was transmitted to an email address specific to each recipient. However, Wigney J in holding that the information or data in the hyperlinked files was not sent to the recipients of the email having regard to the definition of “send” in the rules, said:[18]
It cannot, however, be concluded that the data in the hyperlink files referred to in the email were transmitted to an address specific to each email. Rather, as in Conveyor & General, the email comprised an electronic communication of the means by which other information in electronic form could be found, read and downloaded on the hyperlinked websites.
Nor could the information, in the form of data or text, in the hyperlinked files, in any sense be considered to have been “transmitted” to an email address specific to the recipients, at least unless, and until, the recipient clicked on the links and read, downloaded or printed the data in the files. Again, what was transmitted to them was the means by which they could read, download or print those files or the data in them.
[18] [2019] FCA 2175 at [124]-[125].
In my view, notwithstanding the different language used in the AIA in Conveyor & General and the society’s rules in Clarke, the underlining reasoning in those decisions is equally applicable to this case. The MDRs in item (2) were not provided to Wärtsilä on 28 February 2020 because they were not capable of being fully accessed, read and downloaded by Wärtsilä on that date. Likewise, the MDRs in item (8) were not available for inspection by Wärtsilä at the facility land on that date because they were not capable of being fully accessed, read and downloaded by Wärtsilä on that date.
If anything the terms of items (2) and (8) impose a stronger obligation on Primero than was the case in Conveyor & General and Clarke. In Conveyor & General the documents had to be left or sent to Conveyor & General’s office. This did not occur at least until an officer or employee of Conveyor & General went to the Dropbox and opened and downloaded the file. In Clarke the respondent had to send a meeting notice to each member at their address. This obligation was not satisfied by sending an email which included an hyperlink by which this information could be accessed by the recipient. The concepts of “leaving” or “sending” in these contexts can be characterised as action or conduct which is unilateral. In contrast, the concepts of “providing” or “making available” connotes something bilateral. Something is provided or made available to a person when the item or thing is accessible by the recipient.
Primero seeks to rely upon the decision of Jagot J in Tugun Cobaki Alliance Inc v Minister for Planning and RTA.[19] Tugun was an application for judicial review of a decision of a Minister to approve the construction of a motorway. Opponents of its construction challenged the approval on the basis of a statutory requirement that the Director-General had to “give a report” on the project to the Minister for the purposes of the Minister’s consideration of the application for approval to carry out the project.[20] The evidence was that the Director-General had provided the relevant documentation to the Minister electronically, referring the Minister to where it could be accessed, rather than physically delivering it by way of a hardcopy. The relevant statute provided that where any notice or other document was required to be “given to … any person” under the statute the notice or document could be given by sending it by facsimile or electronic transmission (including for example the internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person.[21] Jagot J held that there was no reason to require, as a component of a document being given to the Minster by electronic means, that the Minister download the document or have it downloaded.[22] Her Honour held that the fact of whether a document was downloaded or not, may be relevant to determining whether the Minister considered a matter as required by the statute, but it was not relevant to the Director-General having complied with his obligation to give a report on the project to the Minister. Her Honour said:[23]
What purpose is served by requiring the Director-General physically to deliver a hard copy of the Director-General’s report to the Minister if the Minister may be inferred to have indicated that electronic delivery will suffice? If the Minister considered it appropriate, I see no reason why the Director-General could not give the Director General’s report to the Minister in accordance with s 153(1)(c) by attaching the report to an email to the Minister, or by attaching an electronic link in such an email to the report, or by placing the entire report on the Department’s website for the Minister to access, and notifying the Minister to that effect. All of those mechanisms make the report available to the Minister, which I consider sufficient for the Director-General to “give” the report to the Minister in accordance with s 75F(1) when that section is construed in context. All (other than perhaps the last example) would also amount to “giving” a document within the Electronic Transactions Act 2000 (s 8 and the definitions of “consent” and “electronic communication” in s 5(1)).
[19] [2006] NSWLEC 396.
[20] Environmental Planning and Assessment Act 1979 (NSW) s 75I(1).
[21] Environmental Planning and Assessment Act 1979 (NSW) s 153(1)(c).
[22] [2006] NSWLEC 396 at [114].
[23] [2006] NSWLEC 396 at [111].
In my view the reasons in Tugun have to be understood in the particular statutory context in which the decision the subject of judicial review was made. At issue was whether the Director-General had given the prescribed documentation to the Minister. The reasons of Jagot J do not assist in construing the particular contractual obligations in this case. These contractual obligations clearly differ from the statutory obligations with which the Court in Tugun grappled.
As I have found, I do not accept Primero’s contention that the documentation to be accessed via the OneDrive hyperlink sent on 28 February 2020 was capable of being downloaded on that date. That proposition is contrary to the evidence of Ms Amanat, which I accept. As I say, a common sense and businesslike construction of the contractual requirements that the documents be provided and are available for inspection necessarily requires that the documents were capable of being downloaded on 28 February 2020. I find they were not. The expert evidence of Mr Michael and the evidence of Mr Palma do not gainsay the evidence of Ms Amanat, which is supported by the evidence of Mr Palma that the log disclosed that the third part of the MDRs was not downloaded until 2 March 2020.
What the subcontract requires is provision of the documents or the documents being made available for inspection. In my view that contractual requirement is not met by provision of an hyperlink if it does not provide a means to access and retrieve the documentation by the relevant date. The documents are not available to be inspected if they cannot all be read.
That proposition is not answered by the contention that the difficulty was at Wärtsilä’s end. In Clarke Wigney J said that it is difficult to accept that an email which is sent to a person, but is unable to be read by that person because of some deficiency or idiosyncratic setting in the person’s computer or email software, should in those circumstances necessarily be regarded as not having been sent to the person. His Honour considered this is particularly so if there is no evidence to suggest any fault on the part of the sender of the email or any problem with the email itself. With respect it seems to me there is much to be said for these propositions. However, in this case the underlying premise has not been proved.
First, the evidence does not establish that the problem in downloading the MDRs was at Wärtsilä’s end. Second, the problem was already apparent well before 28 February 2020 and Wärtsilä had addressed it by requiring the provision of relevant documentation by USB. I find this was agreed by Mr Majrouh on behalf of Primero in an email to Mr Nurmi of Wärtsilä on 14 February 2020. I do not accept that the requirement that Primero provide the documentation by USB was intended by the parties to be an additional means of communication rather than an alternative. The very point of proposing that the MDRs be provided by USB was because the earlier attempt to provide some of the MDRs documentation using an hyperlink proved unsuccessful. By 28 February 2020 there was no commercial sense in persisting with the provision of the MDRs utilising an hyperlink in those circumstances. It appears as early as October 2019 Primero had reacted to problems utilising the DCM365 hyperlink for large documents by using the SharePoint hyperlink. That had not prevented problems occurring with the partial MDRs submission on 28 January 2020. Subsequently, on 28 February 2020 Primero used a OneDrive hyperlink for the purpose of transmitting the final MDRs. It might be that by 28 February 2020 Mr Majrouh considered a USB was an additional means of providing the MDRs but his subjective belief is irrelevant. The evidence of the parties’ conduct establishes that it was agreed the final MDRs would be provided by USB by 28 February 2020.
In any event Primero failed to provide the documentation by USB on or before 28 February 2020.
In the alternative, if I am wrong in finding that the parties had agreed to provide the final MDRs solely by USB, it is at least arguable that the precise form of the electronic communication of the documents from Primero to Wärtsilä is immaterial. The sole exception to this proposition arises upon consideration of whether the form of electronic communication conforms to that definition in the EC Act for the purposes of deciding whether the EC Act applies. Evidence that documents were sent by Primero by email or hyperlink before 28 February 2020 does not assist in the construction of items (2) and (8). Evidence of post contractual conduct is irrelevant for the purpose of identifying the terms of a contract.[24]
[24] Agricultural and Rural Finance v Gardiner [2008] HCA 57 at [35], (2008) 238 CLR 570 at 582.
What is critical to the issue of contractual construction is whether the electronic communication of the documents on 28 February 2020 was effective in the sense that the documents were capable of being accessed, read in their entirety and completely downloaded so that the tests of “provided” and “available to be inspected” were satisfied. They are not available to be inspected if they are not capable of being downloaded, in circumstances where Primero could revoke access to the documents. Of course, once they are downloaded the capacity of Primero to deny access to the documents becomes irrelevant.
Primero submits that the subcontract should be construed in its context, particularly the statutory scheme established by the Act. It submits that the Court should reject the construction for which Wärtsilä contends, namely, that the MDRs were not provided or made available until they were completely downloaded by Wärtsilä. It submits that construction is inconsistent with the need under the Act for certainty in determining the existence of a reference date. In Abergeldie Contractors Pty Ltd v Fairfield City Council[25], the New South Wales Court of Appeal allowed an appeal from a judgment under the Building and Construction Industry Security of Payment Act 1999 (NSW) which had declared that a payment claim under that Act was invalid and quashed the determination of the adjudicator because there was no reference date. The payment claim relied upon practical completion. The judge at first instance wrongly held that practical completion occurred when, as a matter of fact, that stage of construction was reached. Instead, the Court of Appeal held that practical completion was achieved when a certificate of practical completion was issued by the Council’s superintendent. Basten JA, with whom Beazley ACJ and Meagher JA agreed, said:[26]
There is a further factor which supports that conclusion, namely the statutory structure for progress payments. Accepting that a valid payment claim depends upon the existence of a reference date, it would be inconvenient in the extreme if a dispute as to the existence of a reference date turned not merely on the construction of the contract (a question of law) and a finding as to the date on which the superintendent held the necessary opinion to issue a certificate, but rather on the satisfaction of a judge following a trial as to the date on which he or she considered that practical completion had been achieved. Such a conclusion would drive a horse and cart (or perhaps a B-double) through the legislative scheme. In construing the contract, it must be assumed that the parties were aware of the scheme for progress payments under the Act (for which the contract expressly provided) and the fact that they could not contract out of the legislation. Knowledge of that legislative scheme is part of the context which must be considered in construing the contract.
[25] [2017] NSWCA 113.
[26] [2017] NSWCA 113 at [47].
I do not accept this submission. The circumstances in Abergeldie can be contrasted with the circumstances of this case. The need for certainty in Abergeldie in identifying when practical completion occurs is immediately apparent. That explains the constructional choice made in Abergeldie. However, in this case there is no need to construe the contract in the same manner. Construing the obligation on Primero to provide or make available the MDRs to Wärtsilä, as requiring that these obligations are not satisfied until the documents were able to be completely downloaded, ordinarily would not create uncertainty as a matter of fact. Ordinarily it is to be expected that documents would be capable of being downloaded instantaneously or within a short period of time, mostly within a day. Accordingly, construing the subcontract in that way usually would not create uncertainty as to when the reference date came into existence. A reference date will be a particular day. The constructional choice here is whether for the purposes of the subcontract SW Completion requires that providing or making available specified documents occurs when an email containing an hyperlink is received or when the recipient can completely download the documents which are accessible via the hyperlink. For the reasons explained above the latter construction is to be preferred.
The Electronic Communications Act 2000 (SA)
Primero seeks to invoke the provisions of the EC Act on the basis that first, it permits the contractual obligation for the provision of documents to be satisfied by electronic communication, and second, that it prescribes the time of receipt of electronic communication to be the time when it is capable of being retrieved by the addressee.
I do not accept that submission for two reasons.
Section 8 provides that if, under a law of this State, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication where certain prescribed conditions are satisfied. Section 10 provides that if, under a law of this State, a person is required to produce a document that is in the form of, inter alia, paper, that requirement is taken to have been met if the person produces, by means of an electronic communication, an electronic form of the document, where certain prescribed conditions are satisfied.
Both s 8 and s 10 prescribe circumstances that condition the operation of those provisions. Those circumstances include: first, that at the time the information is given by means of electronic communication, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and second, that the person to whom the information is required to be given consents to the information being given by means of an electronic communication.[27]
[27] Electronic Communications Act 2000 (SA) ss 8(1)(a) and (b), 10(1)(b) and (c).
In this case the first of these prescribed circumstances was not met. The evidence is that the OneDrive hyperlink was generated by Primero and access to the hyperlinked file could be removed by Primero at its discretion. Accordingly, I find it was not reasonable to expect that, at the time the hyperlink was sent to Wärtsilä on 28 February 2020, the documents referred to in item (2) and item (8) would be readily accessible so as to be useable for subsequent reference.
The evidence is insufficient to enable me to make any finding as to whether Wärtsilä gave its consent to the information being given by means of an electronic communication as defined in the EC Act. In any event, it is not necessary to decide this question.
That is because there is a more fundamental answer to this submission. The EC Act does not apply to the subcontract. The definition of “electronic communication” in s 5(1) of the EC Act is in substantially the same terms as the definition of that term in the ET Act. Conveyor & General and Clarke stand as authority for the proposition that the provision of the MDRs by hyperlink does not constitute an “electronic communication” for the purposes of the EC Act.[28] I propose to follow the approach taken in Conveyor & General and Clarke. They are persuasive judgments of single Judges of the Queensland Supreme Court and the Federal Court. I am not satisfied that they are plainly wrong.[29] No submission was put that I should not follow them on the basis that they were wrongly decided. Accordingly, the EC Act does not apply to the email from Primero to Wärtsilä on 28 February 2020 containing the OneDrive hyperlink.
[28] Conveyor & General v Basetec Services and Anor [2014] QSC 30 at [28], [2015] 1 Qd R 265 at 270; Clarke v Australian Computer Society Inc [2019] FCA 2175 at [122] and [128].
[29] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135], (2007) 230 CLR 89 at 152.
This conclusion makes it unnecessary to decide Primero’s submission based on s 13A of the EC Act. It is also unnecessary to address Wärtsilä’s submission that there was no valid provision of the MDRs or they were not made available at the facility land because of the breach by Primero of cl 40 of the subcontract.
However, in the event this case goes further I address these issues briefly.
Primero submits that s 13A(1)(a) of the EC Act prescribes the time of receipt of an electronic communication under that Act to be the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. Primero contends that the MDRs were capable of being retrieved at Wärtsilä’s email address once the email containing the hyperlink was received by Wärtsilä. In accordance with s 13A the documents were provided or made available to Wärtsilä on 28 February 2020.
I do not accept this submission. It fails because the evidence demonstrates the full MDRs were not capable of being retrieved until 2 March 2020. It is not the email containing the hyperlink that was the relevant electronic communication for the purposes of SW Completion, but the MDRs. Although the email was capable of being retrieved and thus having a deemed time of receipt, the MDRs were not.
Clause 40

Wärtsilä contends that under the subcontract the documents that Primero was obliged to provide or make available could only occur in accordance with cl 40. Primero sending the email with the hyperlink was contrary to the terms of cl 40 of the subcontract. It contends that the provision of the MDRs for the purposes of item (2), and making them available at the facility land for the purposes of item (8), was a notice or other communication in accordance with cl 40. As the hyperlink did not conform to the requirements of cl 40 the provision of the MDRs was invalid by reason of the contravention of the subcontract.
I do not accept Wärtsilä’s contention that the provision of the documents for the purposes of item (2), and making available the documents at the facility land for the purposes of item (8), was a notice or other communication in accordance with cl 40 of the subcontract. The effect of Wärtsilä’s contention is that any communication between the parties to the subcontract had to conform to the requirements of cl 40. In my view that is not a common sense or businesslike construction of the subcontract.[30] I accept the submission of Primero that the notices or communications that fall within cl 40 are of the kind found in cl 18. Clause 18.1 provides, inter alia, for the provision of written notice of the date the subcontractor believes SW Completion will be achieved. It is the certification of the fact. Other examples are cl 3.6(a) which permits Wärtsilä to direct Primero in writing to rectify work not performed in accordance with the subcontract; cl 10.11(b) which requires Primero to notify Wärtsilä in writing of any act which affects or might breach work health and safety requirements; cl 30.2(a) which permits Wärtsilä to give Primero a written default notice; and cl 30.3(a) which permits Wärtsilä, after giving a default notice, to request Primero to provide a cure plan by written notice to Primero. These terms can be readily distinguished from the provision of the working documents required by items (2) and (8). Accordingly, I reject the submission by Wärtsilä that SW Completion was not achieved by 28 February 2020 because of non-compliance with cl 40.
[30] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 at [35], (2014) 251 CLR 640 at 656-657; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 at [47], (2015) 256 CLR 104 at 116.
For these reasons it is unnecessary to consider Primero’s contention that by its conduct Wärtsilä waived compliance with cl 40.
Conclusion
In the circumstances I would grant the application for judicial review and make an order in the nature of certiorari quashing the adjudication determination of 27 April 2020 made by the third respondent. I would hear the parties as to costs.

Method of giving Notice	When Notice is regarded as given and received
By hand to the nominated address	When delivered to the nominated address
By trackable post or courier to the nominated address	At 9:00 a.m. (addressee’s time) on the second Business Day after the date sent.
By email to the nominated email address	When the email (including any attachment) comes to the attention of the recipient Party or a person acting on its behalf.