DEFINICIÓN Y CARACTERÍSTICAS DEL PROYECTO

There are two limbs of adjudication jurisdiction. An adjudicator must always make sure that:

1) The adjudicator has the jurisdiction to hear the matter.

2) The adjudicator stays within the boundaries of that jurisdiction during the decision making process.

360 Milligan, J, Cattanach, L & Jackson, A, “the Extent oand impact of intimidation in UK Statutory Adjudication', Proceedings of COBRA Conference, 2015, Sydney.

361 Edwards, Leslie J., and Richard NM Anderson. Practical Adjudication: For Construction Professionals.

Thomas Telford, 2002, p 181.

362 Milligan, J, Cattanach, L & Jackson, A, “the Extent oand impact of intimidation in UK Statutory Adjudication', Proceedings of COBRA Conference, 2015, Sydney.

98 With regard to the first limb, the examination of the tremendous case law generated in connection with adjudication indicates that deciding upon jurisdiction is very challenging. The courts have been inconsistent in their approaches to defining jurisdictional facts upon which the jurisdiction of adjudicator can be determined. A very recent example is the case of Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd.³⁶³ In that case, the NSW Court of Appeal overturned the trial judge’s finding that the adjudicator’s determination of a reference date was a finding of jurisdictional fact. The court held that the question of whether a ‘reference date’ has occurred, which gives rise to an entitlement to a progress payment under the NSW Act, is not a matter that the court can quash an adjudication determination over if the adjudicator gets it wrong. This decision overrules many previous authorities in NSW.³⁶⁴ The decision is also inconsistent with the not dissimilar Queensland legislation in which courts held that the reference date is a jurisdictional fact of which existence is required to have a valid payment claim.³⁶⁵ Interestingly, the recent judgment of the Victorian Supreme Court of Appeal in Saville v Hallmarc Constructions Pty Ltd³⁶⁶ about “reference dates” was completely contrary to its counterpart in NSW. Such inconstancy in case law may result from the fact that there is nothing in the legislation that defines those essential jurisdictional facts that must exist in order for an adjudicator to have jurisdiction leaving the door always ajar for adjudicators erring in their jurisdictions and subsequently ending up by further court applications to void erroneous decisions.

With regard to the second limb, the situation has some sources of ambiguity. In the UK, the court in Hyder Consulting (UK) Ltd v Carillion Construction Ltd³⁶⁷ held that there was no breach of the rules of natural justice when the adjudicator adopted a different methodology in his calculations using the figures of the parties. The parties had not commented on the adopted methodology. The Court clarified this wasn’t a case of the adjudicator using his own knowledge, or using material not submitted by

363 [2015] NSWCA 288.

364 See, eg, Patrick Stevedores Operations No 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014]

NSWSC 1413; Omega House Pty Ltd v Khouzame [2014] NSWSC 1837.

365 See, eg, Lean Field Developments Pty Ltd v E & I Global Solutions (Aust) Pty Ltd [2014] QSC 293.

366 [2015] VSCA 318

367 [2011] EWHC 1810.

99 either party. In WA, Beech J in Hamersley Iron Pty Ltd v James,³⁶⁸ referred to some authorities and followed a similar approach to that of the UK by stating:

“A decision maker is generally not obliged to invite comment on his evaluation of a person's case, or to provide an opportunity to review the proposed conclusion. The position may be different where the decision maker draws an adverse conclusion on materials supplied by or known to the subject which is not a natural evaluation of that material and could not reasonably have been anticipated.”

Under the East coast model, the jurisdiction of adjudicators is much confined which appears to be a major challenge for those several adjudicators who also act as arbitrators. It is often the case that such adjudicators (by wrongly putting the arbitrator’s hat in an adjudication case) exceed their jurisdictions. In Anderson Street Banksmeadow Pty Ltd v Helcon Contracting Australia Pty Ltd, ³⁶⁹ the determination was voided as the adjudicator decided an issue on a basis not advocated by the parties.

In Parkview Constructions Pty Ltd v Sydney Civil Excavations Pty Ltd,³⁷⁰ the court held that the adjudicator was not entitled to accept the claimant’s figure for overheads using the adjudicator’s own industry knowledge and experience.

It does not look that easy, having considered the above cases, to draw a line to identify the limitations of adjudicator’s jurisdiction when using his or her own knowledge or experience. Indeed, the existing case law so far suggests that many adjudicators (whether legally trained or not) do not understand or at least appreciate the limits of their jurisdiction, mainly because of the absence of any legislative or reliable guidelines on what adjudicators must not do in their journey of decision making process. Legislatures may need to mitigate the uncertainty of the first limb by introducing express provisions within the legislation that set out essential jurisdictional facts within the purpose of the legislation. To counter the uncertainty of both limbs and in the absence of any such legislative arrangement, it would be beneficial to introduce appropriate guidelines for adjudicators, on a State-by-State basis to cater for

368 [2015] WASC 10 at [103].

369 [2013] NSWSC 491 & [2013] NSWSC 657.

370 [2009] NSWSC 61 at [38].

100 the differences between legislation to assist adjudicators in appropriately deciding and maintaining their jurisdiction, similar to that in the UK.³⁷¹