WAS THE DETERMINATION INVALIDATED BY FAILURE TO COMPLY WITH S.22(2)?
WAS THE DETERMINATION INVALID THROUGH LACK OF GOOD FAITH?
WAS THERE A DENIAL OF NATURAL JUSTICE?
51 These questions only arise if, contrary to my view, RTA's jurisdiction submissions were "duly made" or else were required to be considered by reason of s.22(2)(a) and/or (b).
52 Mr. Christie submitted to the effect that a failure by the adjudicator to consider the submissions, either because he wrongly concluded they were not "duly made" or because his failure to do so was in breach of s.22(2)(a) and/or (b), was not a failure to comply with an essential requirement of the Act, such as would invalidate the decision, and could not conceivably amount to a lack of a bona fide attempt by the adjudicator to exercise the relevant power, or to a denial of natural justice.
53 Mr. Walker SC submitted that the Associate Judge's decision on these issues was correct. He submitted that s.22(2) made it clear that the adjudicator was required to consider the matters in pars.(a)-(d); and in circumstances where this was part of Parliament's codification of procedural fairness, the legislature's intention was that a failure to comply should result in invalidity. The prohibition in s.25(4)(a)(iii) against challenging an adjudicator's determination only arose after a judgment had been obtained; as regards the situation before judgment was obtained, there was no tension between an apparent jurisdictional limit and an exclusion of the Court's jurisdiction, requiring narrow limits to be placed on intervention by the Court.
54 In my opinion, there may be a sense in which s.22(2) is breached if there is any relevant provision of the Act or provision of the contract which is not considered by the adjudicator, or indeed if there is any one of what may be numerous submissions duly made to the adjudicator which is not considered. However, in my opinion a mere failure through error to consider such a provision of the Act or of the contract, or such a submission, is not a matter which the legislature intended would invalidate the decision.
55 The relevant requirement of s.22(2) is that the adjudicator consider the provisions of the Act, the provisions of the contract and submissions duly made. If an adjudicator does consider the provisions of the Act and the contract which he or she believes to be relevant, and considers those of the submissions that he or she believes to have been duly made, I do not think an accidental or erroneous omission to consider a particular provision of the Act or a particular provision of the contract, or a particular submission, could either wholly invalidate a determination, or invalidate it as regards any part affected by the omission. One could express this by saying that such an accidental or erroneous omission does not amount to a failure to comply with s.22(2), so long as the specified classes of considerations are addressed; or alternatively, if one takes the view that s.22(2) does require consideration of each and every relevant provision of the Act and the contract and each and every submission duly made, the intention of the legislature cannot have been that this kind of mistake should invalidate the determination. In a case where there were 1,000 submissions duly made, an accidental failure to consider one of them could not reasonably be considered as invalidating a whole determination; and there is no basis for partial invalidation of a determination, that is, invalidation only of that part affected by the omitted submission.
56 I see these views as essentially the same as I expressed in Brodyn Pty. Limited v. Davenport [2004] NSWCA 394, (2004) 61 NSWLR 421 at [56]:
56 It was said in the passage in Anisminic quoted by McDougall J that a decision may be a nullity if a tribunal has refused to take into account something it was required to take into account, or based its decision on something it had no right to take into account. However, in Craig v. South Australia (1995) 184 CLR 163 at 177 the High Court said that this would involve jurisdictional error if compliance with the requirement in question was made a pre-condition of the existence of any authority to make the decision. I do not think that compliance with the requirements of s.22(2) are made such pre-conditions, for the same reasons as I considered the determination not to be subject to challenge for mere error of law on the face of the record. The matters in s.22(2), especially in pars.(b), (c) and (d), could involve extremely doubtful questions of fact or law: for example, whether a particular provision, say an alleged variation, is or is not a provision of the construction contract; or whether a submission is "duly made" by a claimant, if not contained in the adjudication application (s.17(3)(b)), or by a respondent, if there is a dispute as to the time when a relevant document was received (ss.20(1), 22(2)). In my opinion, it is sufficient to avoid invalidity if an adjudicator either does consider only the matters referred to in s.22(2), or bona fide addresses the requirements of s.22(2) as to what is to be considered. To that extent, I disagree with the views expressed by Palmer J in Multiplex Constructions Pty. Limited v. Luikens [2003] NSWSC 1140.
57 Accordingly, even if RTA's jurisdiction submissions were matters that should have been considered under s.22(2), the adjudicator's failure to do so did not invalidate his decision. At worst for Holland, they were submissions as to which there were strong reasons to hold they were not "duly made", the adjudicator made a reasonable if erroneous decision that they were not duly made, and the adjudicator took a reasonable if erroneous view that the matters raised were not of sufficient relevance to warrant express consideration under pars.(a) and (b) of s.22(2). Accordingly, if there was any breach of s.22(2), it was not of a kind that could invalidate the decision.
58 Even more clearly in my view, an omission to consider the submissions could not conceivably justify a finding that the adjudicator did not make a bona fide attempt to exercise the relevant power.
59 Whether or not in this context lack of bona fides can be demonstrated without demonstrating personal dishonesty, I do not see the slightest basis for concluding that the adjudicator did anything other than make a bona fide attempt to exercise his power.
60 I note in passing the terms of s.30 of the Act, which are as follows:
30 Protection from liability for adjudicators and authorised nominating authorities
(1) An adjudicator is not personally liable for anything done or omitted to be done in good faith:
(a) in exercising the adjudicator's functions under this Act, or
(b) in the reasonable belief that the thing was done or omitted to be done in the exercise of the adjudicator's functions under this Act.
(2) No action lies against an authorised nominating authority or any other person with respect to anything done or omitted to be done by the authorised nominating authority in good faith:
(a) in exercising the nominating authority's functions under this Act, or
(b) in the reasonable belief that the thing was done or omitted to be done in the exercise of the nominating authority's functions under this Act.
61 It would be surprising in the extreme if what the adjudicator did in this case was such as could disentitle him to the immunity provided by s.30; and I think it would be rare that a decision could be invalidated for lack of bona fides by conduct that would not also lose the immunity given by s.30.
62 Mr. Walker SC in his submissions made a suggestion that it was inappropriate to adopt the criteria in R v. Hickman: Ex Parte Fox & Clinton (1945) 70 CLR 598 in circumstances where there was no provision in the Act excluding the jurisdiction of the Court to review the adjudicator's determination. In Brodyn, the view was taken that, although there was not an explicit exclusion of the jurisdiction of the Court prior to the obtaining of judgment and thus the application of s.25(4)(a)(iii), an intention was disclosed to exclude intervention for errors of law or other errors short of errors causing invalidity, and that in those circumstances the Hickman criteria were applicable. There has been no application in this case to re-consider Brodyn.
63 Finally, on the question of natural justice, plainly there was no denial of natural justice if the submission in question was not "duly made". Even if the correct view was that the submission was duly made, I would still not find a denial of natural justice. The legislature plainly entrusts to the adjudicator the role of determining whether submissions are or are not duly made, and thus of determining whether a submission contained in an adjudication response is one that should not be there because of the effect of s.20(2B). If an adjudicator addresses that question and comes to a conclusion that the submission was not duly made, I cannot see that the adjudicator has then failed to afford the measure of natural justice contemplated by the Act.