CONTRACTS-BUILDING, ENGINEERING AND RELATED CONTRACTS-REMUNERATION
STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS
PAYMENTS –
where the applicant (“BMA”) entered into a contract with the first
Source
Original judgment source is linked above.
Catchwords
CONTRACTS-BUILDING, ENGINEERING AND RELATED CONTRACTS-REMUNERATIONSTATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESSPAYMENTS –where the applicant (“BMA”) entered into a contract with the firstrespondent (“BGC”) –where BGC served a payment claim on BMApursuant to the Building and Construction Industry Payments Act 2004(Qld) – where second respondent made adjudication decision – whereapplicant established one of three alleged jurisdictionalerrors – wherejurisdictional error affected an identifiable and relatively small part of theamount determined to be due byBMA to BGC – whether decision should bedeclared voidADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS –GENERALLY– where decision of adjudicator affected by jurisdictionalerror –whether decision should be declared void, with or without an order that thematter be remitted to second respondent– whether declaratory relief
should be declined on condition that BGC undertake to pay the amount affected by
error and interest
to BMA – whether this is a more satisfactory
remedyBuilding and Construction Industry Payments Act 2004 (Qld) s
25(3)Civil Proceedings Act 2011 (Qld), s 58(3)
Uniform Civil Procedure Rules 1999 (Qld), r 681
AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd (No 2) [2009] QSC 75,
cited Ainsworth v Criminal Justice Commission (1992) 175 CLR
564
[1992] HCA 10, citedAlborn v Stephens [2010] QCA 58,
cited Allianz Australia Insurance Ltd v Crazzi (2006) 68 NSWLR 266
[3]Thiess Pty Ltd v President of the Industrial Court of Queensland [2011] 2 Qd R 387.
[5]
[4]R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194 per Gibbs CJ; followed in Solution 6 Holdings Ltd and Others v Industrial Relations Commission of New South Wales and Others[2004] NSWCA 200; (2004) 60 NSWLR 558, which was in turn followed in Chase Oyster Bar Pty Ltd v Hamo Industries Ltd (supra) at 446 - 449 [267] - [284].
[8]SZBYR v Minister for Immigration and Citizenship(2007) 235 ALR 609 at [28]. In the same case Kirby J at [77] referred to "the need to conserve relief to cases where it is appropriate and required to do practical justice."
[18] BMA relies upon this formulation which appears in Young, PW Declaratory Orders, 2nd ed Butterworths, Sydney, 1984 at 720. BGC submits that the authorities do not suggest that there must always be public interest to justify the exercise of the discretion.
[29]Minister for Immigration and Multicultural Affairs v Bhardwaj (supra) at 646 [151] per Hayne J.
[25]
[34] Supra at [81]. The further observation at [83] that "Unless the relevant statute indicates otherwise, a void determination is not a determination at all" is cross-referenced to [81] and, in its context, should be taken to refer to a determination which is declared to be void.
[26]
[35]Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (supra) at 448 [275].
Thiess Pty Ltd v President of the Industrial Court of Queensland [2011] 2 Qd R 387; [2011] QSC 294, cited
"Such an approach has much to recommend it, particularly, it might be added, if the claimant is otherwise unable to pursue its original payment claim to achieve a second adjudication. However, such conditional relief can itself only be valid if it is designed to achieve a legitimate purpose; cf Minister for Immigration and Multicultural Affairs v Wang[2003] HCA 11; 215 CLR 518 at [15] - [16] (Gleeson CJ); [39] (McHugh J); [68] Gummow and Hayne JJ). If the determination is indeed legally ineffective in all respects, it would be doubtful whether the Court could condition declaratory relief (or an order setting aside the decision) upon the applicant making such payment as would be required by the determination if validity could be determined part by part, like the curate's egg. Accordingly, the underlying assumption was inconsistent with total invalidity for all purposes."[21]