That learned Master applied those remarks to the supplying of a payment claim to an adjudicator under the BACISOP Act , and held that such a supplying of the payment claim was not in trade or commerce.
53 Those remarks of Lee J in Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521 were not the ratio of that case. Merman concerned an application for striking out or staying of a statement of claim which alleged misleading and deceptive conduct in the making of a submission to the Australian Customs Service seeking the imposition of an anti-dumping duty - not in the commencement of proceedings of any kind. As well, the outcome in Merman was that the statement of claim was not struck out or stayed. Further, as Von Doussa J noted in Chapman v Luminis Pty Ltd (No. 5) (2001) 123 FCR 62; [2001] FCA 1106 at [185] Merman was decided before the High Court had given its decision in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. Thus, I shall consider the question for myself.
54 In Concrete Constructions Mason CJ, Deane, Dawson and Gaudron JJ, at 603, expressed their preference for a meaning of "in trade or commerce" in section 52:
"… as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character."
55 Their Honours said, at 603-4:
"Indeed, in the context of Pt V of the Act with its heading "Consumer Protection" , it is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct "in trade or commerce" may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character."
56 Applying that test, the submitting to an adjudicator - a person appointed under statutory authority and given statutory powers - of a payment claim which has been disputed, for the purpose of the adjudicator making an adjudication upon the correctness of that payment claim, is not conduct "in trade or commerce" within the meaning of section 52 Trade Practices Act 1974 (Cth).
57 For these reasons, the plaintiff's contention that the submitting of the Second Payment Claim to an adjudicator would contravene section 52 Trade Practices Act 1974 (Cth) is rejected. Preliminary question 3 will be answered "no".
Unconscionable Conduct?
58 At the hearing, the plaintiff also sought to submit that the making of the Second Payment Claim amounted to unconscionable conduct within the meaning of either section 51AA or section 51AB Trade Practices Act 1974 (Cth). The plaintiff had sought, and been granted, an urgent final hearing. There had been no foreshadowing, prior to the hearing, that any such claim would be made. It is an allegation which is dependent upon the factual context in which the Second Payment Claim came to be made. The defendant has had no opportunity to come to understand the basis upon which the plaintiff contends that the conduct is unconscionable, or to prepare its own factual case about why it is not unconscionable. At the hearing I informed Mr Doyle that I did not need to hear him on the unconscionability point. I decline to permit the issue to be raised at the late stage at which it was raised.
Brodyn v Davenport - When a Determination is Valid
59 In Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 Hodgson JA (with whom Mason P and Giles JA agreed) said at [51]-[55], 440-442:
"51 … The Act discloses a legislative intention to give an entitlement to progress payments, and to provide a mechanism to ensure that disputes concerning the amount of such payments are resolved with the minimum of delay. The payments themselves are only payments on account of a liability that will be finally determined otherwise: s 3(4) and s 32. The procedure contemplates a minimum of opportunity for court involvement: s 3(3) and s 25(4). The remedy provided by s 27 can only work if a claimant can be confident of the protection given by s 27(3): if the claimant faced the prospect that an adjudicator's determination could be set aside on any ground involving doubtful questions of law, as well as of fact, the risks involved in acting under s 27 would be prohibitive, and s 27 could operate as a trap.
52 However, it is plain in my opinion that for a document purporting to be an adjudicator's determination to have the strong legal effect provided by the Act, it must satisfy whatever are the conditions laid down by the Act as essential for there to be such a determination. If it does not, the purported determination will not in truth be an adjudicator's determination within the meaning of the Act: it will be void and not merely voidable. A court of competent jurisdiction could in those circumstances grant relief by way of declaration or injunction, without the need to quash the determination by means of an order the nature of certiorari.
53 What then are the conditions laid down for the existence of an adjudicator's determination? The basic and essential requirements appear to include the following:
1. The existence of a construction contract between the claimant and the respondent, to which the Act applies (ss.7 and 8).
2. The service by the claimant on the respondent of a payment claim (s.13).
3. The making of an adjudication application by the claimant to an authorised nominating authority (s.17).
4. The reference of the application to an eligible adjudicator, who accepts the application (ss.18 and 19).
5. The determination by the adjudicator of this application (ss.19(2) and 21(5)), by determining the amount of the progress payment, the date on which it becomes or became due and the rate of interest payable (ss.22(1)) and the issue of a determination in writing (ss.22(3)(a)).
54 The relevant sections contain more detailed requirements: for example, s.13(2) as to the content of payment claims; s.17 as to the time when an adjudication application can be made and as to its contents; s.21 as to the time when an adjudication application may be determined; and s.22 as to the matters to be considered by the adjudicator and the provision of reasons. A question arises whether any non-compliance with any of these requirements has the effect that a purported determination is void, that is, is not in truth an adjudicator's determination. That question has been approached in the first instance decision by asking whether an error by the adjudicator in determining whether any of these requirements is satisfied is a jurisdictional or non-jurisdictional error. I think that approach has tended to cast the net too widely; and I think it is preferable to ask whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator's determination.
55 In my opinion, the reasons given above for excluding judicial review on the basis of non-jurisdictional error of law justify the conclusion that the legislature did not intend that exact compliance with all the more detailed requirements was essential to the existence of a determination: cf. Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355 at 390-91. What was intended to be essential was compliance with the basic requirements (and those set out above may not be exhaustive), a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and reasonably capable of reference to this power (cf. R v. Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598), and no substantial denial of the measure of natural justice that the Act requires to be given. If the basic requirements are not complied with, or if a purported determination is not such a bona fide attempt, or if there is a substantial denial of this measure of natural justice, then in my opinion a purported determination will be void and not merely voidable, because there will then not, in my opinion, be satisfaction of requirements that the legislature has indicated as essential to the existence of a determination. If a question is raised before an adjudicator as to whether more detailed requirements have been exactly complied with, a failure to address that question could indicate that there was not a bona fide attempt to exercise the power; but if the question is addressed, then the determination will not be made void simply because of an erroneous decision that they were complied with or as to the consequences of non-compliance."
The Plaintiff's 'No Reference Date' Argument
60 As Mr Christie, for the plaintiff, ultimately formulated his argument, he did not dispute that the Second Payment Claim was a "payment claim" within the meaning of the BACISOP Act. Nor was there any issue that the Second Payment Claim had in fact been served.
61 Rather, what he contended was that there was no reference date under the Contract to which the Second Payment Claim could be attached. He put that contention in two alternative ways. One was that the payment claim really was alleging that 31 August 2005 was a reference date under the Contract. He submits that 31 August 2005 is, on the proper construction of the Contract, not a reference date. The alternative was that the identification of 31 August 2005 as a reference date was a mistake, but an inessential mistake, and that the payment claim should be construed as referring to the last of the available reference dates under the Contract. In that event, a payment claim had already been made for the last reference date under the Contract, so service of the Second Payment Claim was not a service which was permitted by section 13(5) of the Act. Whichever of these ways the Second Payment Claim is read, he submitted it is incapable of leading to a adjudicator's decision which is legitimately arrived at in accordance with the Act.
62 There are two tasks to be performed to decide the correctness of the plaintiff's argument. The first is identification of the reference dates applicable to this Contract. The second is deciding whether, in the event that 31 August 2005 is not a reference date under the Contract, and if payment claims have already been made with respect to all of the reference dates under the Contract, service of a payment claim which alleges a reference date of 31 August 2005 is something which can give rise to an adjudication application within the scope of the Act.
The Parties' Arguments - Identification of Reference Dates
63 Mr Christie submits that, in construing section 8(2)(b), "the matter" there referred to is the topic of when progress claims can be made. He submits that the Contract in the present case is one to which section 8(2)(b) does not apply, because the Contract makes express provision with respect to when progress claims can be made. The Contract says, explicitly, that they can be made when, and only when, the milestones are reached. Thus, Mr Christie submits, those are the only reference dates under this particular Contract. Further, he submits, the defendant has already served a payment claim in respect of the reference date of Practical Completion. Thus, the Second Payment Claim could not relate to that date.
64 The plaintiff submits that, because section 8(2)(b) does not apply to this particular contract, the basis on which the Second Payment Claim nominated 31 August 2005 as being the reference date by reference to which it was made is mistaken.
65 Mr Doyle, for the defendant, submits that the Milestone Dates are not the only dates when the Contract permits a payment claim to be submitted. In particular, the Contract does not restrict the plaintiff's right to submit a payment claim for work carried out after Practical Completion. Mr Doyle points to Clause 24.2 (para [7] above), and says that it permits an invoice for payment to be submitted "on completion of the Works or of agreed milestones". Thus, he says, at the least the defendant has a contractual entitlement to submit a further invoice on completion of the Works, and it has not previously submitted an invoice in relation to that reference date.
66 In response to that argument, Mr Christie makes three separate points: