❓ A WA parliamentary question seeks data on adjudication outcomes under the Construction Contracts Act 2004, specifically regarding high-value claims and reviews by the State Administrative Tribunal. The answer provides statistics and clarifies the limited avenues for appeal.
AnsweredQoN 7090Legislative Assembly
QuestionView source ↗
I refer to the
Construction Contracts Act 2004
and matters accepted for decision by the adjudicators, and I ask
(a) how many applications which have been assessed by the adjudicators since 23 September 2008 have concerned claims of over $1m;
(b) of the applications in (a), on how many occasions did the adjudicator decline to meet with both parties involved in the dispute;
(c) how many applications in (a) have been subsequently referred to the State Administrative Tribunal, and what were the outcomes of these referrals; and
(d) what actions can aggrieved defendants take to have adverse findings by adjudicators against them reviewed?
Construction Contracts Act 2004
and matters accepted for decision by the adjudicators, and I ask
(a) how many applications which have been assessed by the adjudicators since 23 September 2008 have concerned claims of over $1m;
(b) of the applications in (a), on how many occasions did the adjudicator decline to meet with both parties involved in the dispute;
(c) how many applications in (a) have been subsequently referred to the State Administrative Tribunal, and what were the outcomes of these referrals; and
(d) what actions can aggrieved defendants take to have adverse findings by adjudicators against them reviewed?
AnswerView source ↗
Answered
20 February 2012
Responded by
Minister representing the Minister for Commerce
Response time
81 days
(a) The Building Commission's records indicate that from the period starting September 2008 to June 2011 there has been 59 applications for adjudication with claims of over $1m.
(b) An adjudicator may request parties to attend a conference with the adjudicator in order to obtain sufficient information to make a determination (section 32(2)(b)). There is no provision that allows the parties to request a conference. Details of any conference would be noted in the adjudication; however, this data as a matter of practice is not reported.
(c) The Commission has identified 4 adjudications with claims over $1million, which were dismissed by the adjudicator on the basis of these jurisdictional issues, and were subsequently reviewed by SAT - those reviews by SAT are summarised as follows:
1. GEORGIOU GROUP PTY LTD v MCC MINING (WA) PTY LTD [2011] WASAT 120 (this involved two applications for review to SAT), which ordered that the decision of the adjudicator, Mr Philip Loots, to dismiss parts of the application for adjudication reflected in the determination dated 8 December 2010 is affirmed and the application for review is otherwise dismissed (adjudicator not required to make a determination under s36).
2. MCC MINING (WA) PTY LTD and THIESS PTY LTD [2010] WASAT 140 - SAT dismissed the application for review.
3. MERYM PTY LTD and METHODISTLADIESCOLLEGE[2008] WASAT 164 - SAT dismissed this application for review.
4. MARINE & CIVIL BAUER JOINT VENTURE and LEIGHTON KUMAGAI JOINT VENTURE [2005] WASAT 269 - SAT reversed the adjudicator's decision and the matter was referred back to the adjudicator to make a determination under s 31(2)(b).
(d) Determinations, which have been decided by an adjudicator, are not subject to appeal or review. The Act provides that a decision of an adjudicator cannot be appealed or reviewed (section 46(3)), unless the adjudicator dismissed an application to review a payment dispute under section 31(2)(a)(i) to (iv) on the basis that the application (respectively): did not concern a construction contract; was not prepared and served correctly; a binding decision (i.e. court, arbitrator) has already been made on the matter; or the matter was too complex to determine fairly made - in which case a person who is aggrieved by that decision may apply to the State Administrative Tribunal for a review of that decision.
In any case, an applicant or respondent may have any contract, or provision thereof, reviewed by an arbitrator or court, irrespective of the payment dispute.
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(b) An adjudicator may request parties to attend a conference with the adjudicator in order to obtain sufficient information to make a determination (section 32(2)(b)). There is no provision that allows the parties to request a conference. Details of any conference would be noted in the adjudication; however, this data as a matter of practice is not reported.
(c) The Commission has identified 4 adjudications with claims over $1million, which were dismissed by the adjudicator on the basis of these jurisdictional issues, and were subsequently reviewed by SAT - those reviews by SAT are summarised as follows:
1. GEORGIOU GROUP PTY LTD v MCC MINING (WA) PTY LTD [2011] WASAT 120 (this involved two applications for review to SAT), which ordered that the decision of the adjudicator, Mr Philip Loots, to dismiss parts of the application for adjudication reflected in the determination dated 8 December 2010 is affirmed and the application for review is otherwise dismissed (adjudicator not required to make a determination under s36).
2. MCC MINING (WA) PTY LTD and THIESS PTY LTD [2010] WASAT 140 - SAT dismissed the application for review.
3. MERYM PTY LTD and METHODISTLADIESCOLLEGE[2008] WASAT 164 - SAT dismissed this application for review.
4. MARINE & CIVIL BAUER JOINT VENTURE and LEIGHTON KUMAGAI JOINT VENTURE [2005] WASAT 269 - SAT reversed the adjudicator's decision and the matter was referred back to the adjudicator to make a determination under s 31(2)(b).
(d) Determinations, which have been decided by an adjudicator, are not subject to appeal or review. The Act provides that a decision of an adjudicator cannot be appealed or reviewed (section 46(3)), unless the adjudicator dismissed an application to review a payment dispute under section 31(2)(a)(i) to (iv) on the basis that the application (respectively): did not concern a construction contract; was not prepared and served correctly; a binding decision (i.e. court, arbitrator) has already been made on the matter; or the matter was too complex to determine fairly made - in which case a person who is aggrieved by that decision may apply to the State Administrative Tribunal for a review of that decision.
In any case, an applicant or respondent may have any contract, or provision thereof, reviewed by an arbitrator or court, irrespective of the payment dispute.
Notice: This document is created or edited using unregistered or evaluation copy of rtLib valid for testing or development purposes only. To use it for productive or any other purposes please register it. You may purchase the license on
http://www.rtlib.com
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