VARIABLES ALEATORIAS

The issue was first raised in the SAT case of Moroney & Anor and Murray River North Pty Ltd,⁷⁷⁹ heard by Member Dr De Villiers on 8 February 2008, and delivered on 19 February

772 Marine & Civil Bauer Joint Venture v Leighton Kumagai Joint Venture [2005] WASAT 269, 14 [56].

773 Ibid 20 [93].

774 Construction Contracts Act 2004 (WA), s 46.

775 Ibid s 31(2)(b).

776 Marine & Civil Bauer Joint Venture v Leighton Kumagai Joint Venture [2005] WASAT 269, 4 [3].

777 Construction Contracts Act 2004 (WA), s 46.

778 Marcus Jacobs, Security of Payment in the Australian Building and Construction Industry (Thomson Reuters, 4^th Ed, 2012) 822. Senior Member Raymond wrote in Marine & Civil Bauer Joint Venture v Leighton Kumagai Joint Venture [at 12]; Section 61(1) provides that, unless another provision of the Act provides otherwise, hearings of the Tribunal are to be held in public. That requirement reflects the longstanding and fundamental principle of, and public interest in, the open administration of justice: see, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, per Kirby J; also Re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153, Malcolm CJ 164 165; ADI Ltd and Ors and Equal Opportunity Commission and Ors [2005]

WASAT 49.

779 [2008] WASAT 36.

176 2008. Adjudicator Riley had dismissed an application for adjudication, but had failed to provide adequate reasons for his decision. Both the SAT and the parties found the decision to be ‘ambivalent, vague, and even inconsistent, regarding whether he had jurisdiction to deal with the dispute.’⁷⁸⁰ The Tribunal sent the matter back to Adjudicator Riley for remittance and ordered that he should provide the reasons for the decision.

On 20 May 2008, Member Dr De Villiers delivered Moroney & Anor and Murray River North Pty Ltd.⁷⁸¹ Member Dr De Villiers would scrutinise the arguments put forward by Adjudicator Riley. Adjudicator Riley presented the view that it was his interpretation that if an adjudicator dismisses an application established by, for example to s 31(2)(a)(ii), then there is no requirement to make a finding in regard to the ‘remaining grounds for dismissal.’⁷⁸² This, argued Adjudicator Riley, was based on the singular, two-letter word “or”.

Adjudicator Riley argued that there was no further reason for him to determine that there was a ‘construction contract, or another person or court (etc.),⁷⁸³ or it was too complex.⁷⁸⁴

Member Dr De Villiers stated that the ‘the reasoning of Mr Riley seems to be logical.’⁷⁸⁵ However, Member Dr De Villiers reasoned that there were two reasons why the argument of Adjudicator Riley were contradictory to the Act. The first, reasoned Member Dr De Villiers, was that when deciding on the grounds of dismissal about s 31(2)(a)(i-iv), those grounds for dismissal must be read in full ‘with the entire review process pursuant to s 46 of the CC Act.’⁷⁸⁶ Sections 31(2)(a)(i-iv) are reviewable when the matter is dismissed without considering the merits.⁷⁸⁷ An adjudicator must consider all four.

Member Dr De Villiers argued that Adjudicator Riley had, pursuant to s 46(2) of the Act, ‘only one chance to consider a summary dismissal without consideration of the merits.’⁷⁸⁸

There is more than a modicum of truth in the view of Member Dr De Villiers.

Member Dr De Villiers stated that based on the views of Adjudicator Riley, this would lead to

780 Moroney & Anor and Murray River North Pty Ltd [2008] WASAT 36, 4 [7].

781 [2008] WASAT 111.

782 Moroney & Anor and Murray River North Pty Ltd [2008] WASAT 111, 17 [79].

783 Ibid (iii).

784 Ibid (iv).

785 Moroney & Anor and Murray River North Pty Ltd [2008] WASAT 111, 4 [7].

786 Ibid 17 [84].

787 Ibid..

788 Ibid 18 [86]. In the same paragraph, Member Dr De Villiers rightly stated that This is consistent with the objectives of a speedy resolution of disputes under the CC Act.

177

‘two unsustainable and unintended consequences.’⁷⁸⁹ The first is that if an adjudicator considers only one ground for dismissal, and that decision is reversed by the SAT, the adjudicator may have to consider the other three, and these could then potentially be reviewed.

Member Dr De Villiers felt that this would be contradictory to the objects of the Act (s 30) and the Act does not support such an interpretation.⁷⁹⁰

The second consequence, is this would also imply that if it was ‘lodged out of time’,⁷⁹¹ and overturned. The adjudicator would now have to ‘deal with the matter on merit without having considered the other grounds for dismissal in s 31(2)(b)(i), s 31(2)(b)(iii) or s 31(2)(b)(iv) of the CC ACT. That would be an illogical and unintended outcome.’⁷⁹²

Three years later, this matter would again arise. Her Honour Justice McLure, in Perrinepod Pty Ltd and Georgiou Building Pty Ltd,⁷⁹³ stated: ‘[S]ixthly, there is no express statutory requirement that an adjudicator provide reasons for not dismissing an application under s 31(2)(a) of the Act’.⁷⁹⁴

Her Honour would then state:

9 Proposition 6 is uncontentious. However, it leaves open the question whether an adjudicator who does not dismiss an application under s 31(2)(a) is obliged to give reasons for the findings/conclusions on the matters in subpars (i) - (iv) of s 31(2)(a) in his or her reasons for determination on the merits. Based on my view of the proper construction of s 31, there is much to be said in favour of an affirmative answer, at least where the matters are in dispute. However, that is a question for another day.⁷⁹⁵

Sadly, that day has not yet arrived.

It is, however, the second reason given by Member Dr De Villiers, and that pertained to the word “or”. Member Dr De Villiers stated; ‘The "or" is not to be interpreted that only one ground needs to be considered, but rather that if any one of the grounds for dismissal is satisfied, the matter must be dismissed. That, however, does not obviate the obligation on Mr Riley to

789 Moroney & Anor and Murray River North Pty Ltd [2008] WASAT 111, 18 [87].

790 Ibid 18-9 [87(a)].

791 Ibid 19[87(b)].

792 Ibid.

793 [2011] WASCA 217

794 Perrinepod Pty Ltd and Georgiou Building Pty Ltd [2011] WASCA 217, 7 [7].

795 Ibid 7 [9].

178 consider each of the grounds.’⁷⁹⁶

The word ‘or’ has for most part been employed to link other possibilities, e.g. “an apple or an orange”. Sections 31(2)(a)(i-iv) are linked by “or”. Section 17 of the Interpretations Act 1984 (WA)⁷⁹⁷ states categorically:

17. Disjunctive construction of “or.”

In relation to a written law passed or made after the commencement of this Act, but subject to section 3(3), or, other, and otherwise shall be construed disjunctively and not as implying similarity unless the word “similar” or some other word of like meaning is added.

Section 17 of the Interpretations Act 1984 (WA) indicates that s 31(2)(a)(i-iv) must be considered disjunctively. Therefore the adjudicator must dismiss if (i) or (ii) or (iii) or (iv).

Further, the Construction Contracts Act 2004 (WA) is written in chronological order. Part 3 – Adjudication of Disputes, gives the adjudicator the process to follow. Section 25, who can apply for […} s 26, applying for […] s 27 Responding to […] etc. Section 31(2)(a) states that an adjudicator must dismiss if (i or ii or iii or iv). Later comes s 46, limited right of review.

An adjudicator does not care about s 46. Section 46 is the domain of the parties and the SAT.

If they got it wrong, it is remitted back to the adjudicator for alteration. If 14 days (or now ten business days) have passed, and no review has been sought, the adjudicator is functus officio.

By insisting that an adjudicator publish a copious decision, justifying s 31(2)(a)(i-iv) only goes against the grain of s 30 of the Act. The problem on this point did not lie before adjudicator Riley. The issue lies before the legislators or the interpretations made by the Courts or the SAT. Many adjudicators, however, do continue to draft voluminous decisions when justifying s 31(2)(a)(i-iv). The volume no doubt contributes to why the costs of adjudications has risen exponentially since 2004.

5.7. The WASCA, the case of Perrinepod Pty Ltd v Georgiou Building Pty Ltd, and s 46