Grocon Constructors v Planit Cocciardi Joint Venture

Grocon Constructors v Planit Cocciardi Joint Venture - [2009] VSC 426 - VSC 2009 case summary — Zoe

[47]

The origin of this controlling power was the writ of certiorari, by which the King commanded the judges of any inferior Court of Record to certify the record of any matter in their court with all things touching the same, and to send it to the King's Court to be examined. The wording of the writ was for many centuries as follows, being originally in Latin and afterwards in English: "We being willing for certain reasons that all and singular orders made by you (as is said) be sent by you before us, do command that you do send forthwith before us all and singular the said orders with all things touching the same, as fully and perfectly as they have been made by you and now remain in your custody or power, together with this our writ, that we may cause further to be done thereon what of right and according to "the law and custom of England we shall see fit to be done." I would pause for a moment to notice the amplitude of this writ. The record of the inferior court is to be sent up so that the King's Bench may cause to be done thereon "what of right and according to the law and custom of England" ought to be done. The width of these words is only matched by the width of the words used by the great masters of the law in speaking of certiorari. Thus Joseph Chitty in his book on practice written in 1833, vol. 2, at p.353, said: "As an essential mode of exercising a control over all inferior courts, the Court of King's Bench has a most extensive power to bring before it their proceedings and fully to inform itself upon every subject essential to decide upon the propriety of the proceedings below. This is effected by a writ called certiorari. The writ issues in civil as well as criminal cases ..." Thus such a writ was ordered to be issued to the judge of an inferior jurisdiction to return and certify the practice of his court: see Williams v Bagot. Ninety years later Lord Sumner used words of equal width: The supervision by certiorari "goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise": see Rex v Nat Bell Liquors Ltd.

[66]

The pre-1977 Order 53, like its predecessors, placed under considerable procedural disadvantage applicants who wished to challenge the lawfulness of a determination of a statutory tribunal or any other body of persons having legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals. It will be noted that I have broadened the much-cited description by Atkin LJ in Rex v Electricity Commissioners, Ex parte London Electricity Joint Committee Co (1920) Ltd. [1924] 1 KB 171, 205 of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative remedies (which in 1924 then took the form of prerogative writs of mandamus, prohibition, certiorari, and quo warranto) by excluding Atkin LJ's limitation of the bodies of persons to whom the prerogative writs might issue, to those "having the duty to act judicially." For the next 40 years this phrase gave rise to many attempts, with varying success, to draw subtle distinctions between decisions that were quasi-judicial and those that were administrative only. But the relevance of arguments of this kind was destroyed by the decision of this House in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, where again the leading speech was given by Lord Reid. Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made. [Emphasis added]

[114]

The jurisdiction of the High Court as successor of the court of Queen's Bench to supervise the exercise of their jurisdiction by inferior tribunals has not in the past been dependent on the source of the tribunal's authority to decide issues submitted to its determination, except where such authority is derived solely from agreement of parties to the determination. The latter case falls within the field of private contract and thus within the ordinary civil jurisdiction of the High Court supplemented where appropriate by its statutory jurisdiction under the Arbitration Acts.

The earlier history of the writ of certiorari shows that it was issued to courts whose authority was derived from the prerogative, from royal charter, from franchise or custom, as well as from Act of Parliament. Its recent history shows that as new kinds of tribunals have been created, orders of certiorari have been extended to them too and to all persons who under authority of government have exercised quasi-judicial functions. True, since the victory of Parliament in the constitutional struggles of the seventeenth century, authority has been generally if not invariably conferred on new kinds of tribunals by or under Act of Parliament and there has been no recent occasion for the High Court to exercise supervisory jurisdiction over persons whose ultimate authority to decide matters is derived from any other source.

I see no other reason, however, for holding that the ancient jurisdiction of the court of Queen's Bench has been narrowed merely because there had been no occasion to exercise it. If new tribunals are established by acts of government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics on which the subjection of inferior tribunals to the supervisory control of the High Court is based. What are these characteristics? It is plain on the authorities that the tribunal need not be one whose determinations give rise directly to any legally enforceable right or liability. Its determination may be subject to certiorari notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates.

It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect on such legal rights or liabilities. That subsequent condition may be a later determination by another tribunal (see R. v. Postmaster General, Ex p. Carmichael ([1928] 1 KB 291) R. v. Boycott, Ex p. Keasley ([1939] 2 All ER 626, [1939] 2 KB 651)). Is there any reason in principle why certiorari should not lie in respect of a determination where the subsequent condition which must be satisfied before it can affect any legal rights or liabilities of a person to whom it relates, is the exercise in favour of that person of an executive discretion as distinct from a discretion which is required to be exercised judicially?

[168]

It is just that on questions of fact it is perhaps even less likely that the body in question will have strayed outside its jurisdiction. Administrative tribunals are commonly charged with determination of the facts (as of course are courts) and error in making a decision in that regard is less likely to attract certiorari for jurisdictional error. That is not to say that error of fact may not in certain circumstances amount to jurisdictional error; it may. For example error on a question of fact will go to jurisdiction if the jurisdiction of the tribunal is conditioned upon some event's having occurred, as distinct from the tribunal's deciding, rightly or wrongly, that it has occurred. In the former case, the tribunal will have exceeded its jurisdiction if it proceeds otherwise than after the event has actually occurred: for example, Potter v Melbourne and Metropolitan Tramways Board [1957] HCA 43; (1957) 98 CLR 337. It is otherwise if the tribunal has had conferred upon it the jurisdiction to proceed after deciding that the event has occurred and thus irrespective of whether its decision on the fact was right or wrong. Such error may be open to correction on appeal (if an appeal lies) but it is not jurisdictional error. Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 388-9 per Dixon J, R v. Blakeney, ex parte Association of Architects etc. of Australia [1950] HCA 40; (1950) 82 CLR 54 at 57-8.

Whether the question decided below has been one of fact or law, where the body in question, be it administrative tribunal or court of law, is authorised to decide the question without being guilty of jurisdictional error if it decides wrongly, the body will sometimes be described as having the power (or the jurisdiction) to decide "conclusively" or "authoritatively" (not meaning to exclude any right of appeal that may exist but meaning that the tribunal, even if it errs in deciding, still stays within its jurisdiction). Sometimes it will be described more vividly as having the power, or the jurisdiction, not only to go right but also to go wrong: R v Governor of Brixton Prison, Ex parte Armah [1968] AC 192 at 234 per Lord Reid (revisited by his Lordship in Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 at 171), Parisienne at 374, 375, per Latham CJ. But whatever description is given it, the duty of the supervising court will be to determine whether the power of the decision-making body is as I have just described (in which case prerogative relief will not go) or is not so extensive as to exclude such relief

[210]

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, at pp 395-396; Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp 109-110; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp 496, 500; J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at p 456; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; [1990] HCA 22; (1990) 64 ALJR 357, at p 371; [1990] HCA 22; 93 ALR 51, at p 73. In Tanos, Dixon CJ and Webb J said (at p 396) that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, at pp 344-345, 347, 349. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J said (at p 584) that the law in relation to administrative decisions: "has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." In Haoucher [at p 653], Deane J. said that the law seemed to him: "to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making".

[212]

The content and application of the principles of natural justice and the obligation resting upon persons making certain decisions of an administrative nature to act fairly have been discussed at length in a number of recent decisions of this Court: Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106; Salemi v MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396; Reg v MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487. It would be presumptuous and quite unnecessary for me to embark upon a dissertation of my own. However, I would take, with gratitude, the following brief general conspectus of the law from the judgment of Gibbs J. (as the Chief Justice then was) in Salemi (No.2) (1977) 137 CLR, at pp 419-420:

There is nothing technical about the principles of natural justice. It is sometimes said, or suggested, that those principles apply only to proceedings which are judicial, or quasi-judicial, or where there is a duty to act judicially. To state the rule in that way seems to me to be unduly restrictive and misleading. It is at least clear that when the power which is being exercised is a statutory one, it is not necessary to be able to find in the words of the statute itself a duty to hear the party affected or otherwise to act judicially. To repeat the well-known words of Byles J in Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180, at p 194 [1863] EngR 424; (143 ER 414, at p 420) , 'although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature'.

.........

The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf. Durayappah v Fernando (1967) 2 AC, at p 350.

[242]

It will have been seen that throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record.

What, then, is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings: see Blackstone's Commentaries, Vol. III, at p. 24. But it must be noted that, whenever there was any question as to what should, or should not be, included in the record of any tribunal, the Court of King's Bench used to determine it. It did it in this way: When the tribunal sent their record to the King's Bench in answer to the writ of certiorari, this return was examined, and if it was defective or incomplete it was quashed: see Apsley's case, Rex v Levermore, and Ashley's case, or, alternatively, the tribunal might be ordered to complete it: Williams v Bagot and Rex v Warnford. It appears that the Court of King's Bench always insisted that the record should contain, or recite, the document or information which initiated the proceedings and thus gave the tribunal its jurisdiction; and also the document which contained their adjudication. Thus in the old days the record sent up by the justices had, in the case of a conviction, to recite the information in its precise terms; and in the case of an order which had been decided by quarter sessions by way of appeal, the record had to set out the order appealed from: see Anon. The record had also to set out the adjudication, but it was never necessary to set out the reasons (see South Cadbury (Inhabitants) v Braddon, Somerset (Inhabitants), nor the evidence, save in the case of convictions. Following these cases, I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.

The next question which arises is whether affidavit evidence is admissible on an application for certiorari. When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. When it is granted on the ground of error of law on the face of the record, affidavit evidence is not, as a rule, admissible, for the simple reason that the error must appear on the record itself: see Rex v Nat Bell Liquors Ltd. Affidavits were, however, always admissible to show that the record was incomplete, as, for instance, that a conviction omitted the evidence of one of the witnesses (see Chitty's Practice, Vol. 2, at p.222, note (d)), or did not set out the fact that the justices had refused to hear a competent witness for the defence (see Rex v Anon.), whereupon the court would either order the record to be completed, or it might quash the conviction at once. [Footnotes omitted]

[244]

The history of the writ of certiorari can be traced back to at least the fourteenth century. That history provides part of the context in which questions of the ambit of the writ must be resolved. Resort to medieval history should not, however, be permitted to allow either a transformation of certiorari into a general appeal or a side-stepping of the nineteenth century legislative reforms aimed at curbing the excessive availability of the writ which had given rise to undesirable technicality. Those legislative reforms were directly concerned with challenges to convictions before magistrates. Their practical effect was, however, to bring about a general confinement of the content of an inferior court's "record" for the purposes of certiorari to the documents initiating and defining the matter in the inferior court and the impugned order or determination.

One finds in some recent cases in this country support for the adoption of an expansive approach to certiorari which would include both the reasons for decision and the complete transcript of proceedings in the "modern record" of an inferior court. As Priestley JA pointed out in Commissioner for Motor Transport v Kirkpatrick, that approach is not precluded by any direct decision of this Court. Nonetheless, it should, on balance, be rejected. For one thing, it is inconsistent with the weight of authority in this Court which supports the conclusion that, in the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision. More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of "the record" would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error. It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law. In particular, a situation in which any proceeding in an inferior court which involved a disputed question of law could be transformed into superior court proceedings notwithstanding immunity from ordinary appellate procedures would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed. On balance, it appears to us that the question whether there should be such an increase in the availability of certiorari, or of orders in the nature of certiorari, is one that is best left to the responsible legislature. [Footnotes omitted]

[273]

171 By way of summary, O'Brien made the following central findings: he found that the claimant PCJV undertook certain "Early Works" for the Project consisting of preliminary roof design development for the agreed cost of $91,800.00. He further found that the claimant, having completed the Early Works by November 2007, commenced the "Major Works" for the Project in or about November 2007, and it did so without the parties having first settled the terms of their agreement. He found that delays and design changes continued to hinder progress. Nevertheless the claimant continued with its work in spite of no value for its services having been agreed or formalised. In September 2008 a major dispute arose in relation to the value of the work undertaken by the claimant; O'Brien found that a meeting took place between the parties on 12 September 2008. The evidence about the meeting and its outcome was in conflict, nevertheless, O'Brien was satisfied that an agreement was struck at the meeting of 12 September 2008 as to the basis upon which the work should proceed and the basis upon which the work which had already been undertaken should be paid for. In essence, he determined that work carried out between September 2008 and December 3008, together with work previously commissioned that remained incomplete, was performed pursuant to the unwritten "separate Arrangement of 12 September 2008". O'Brien found that the claimant appeared to have continued with the work into December 2008. By mid December 2008 O'Brien found that relations between the parties were "at breaking point". Only part of the September 2008 Payment Claim made by PCJV had been paid by Grocon; no payments had been received for the subsequent Payment Claims for October, November and December, and no payments had since been made. He found that by a Payment Claim made on 24 April 2004 (the "24 April Payment Claim") the claimant claimed the sum of $544,841.00 (including GST) in respect of the work described for work claimed to have been completed in the months of September, October, November and December 2008. The 24 April Payment Claim, he found, included all four previous payment claims which by that date had not been paid, and in the case of the September 2008 payment claim, only paid in part.

[336]

Ground 3: Contrary to section 14(6) of the Act,

(a) O'Brien failed to reject the payment claim dated 24th April 2009 on the basis that it amounted to a further payment claim in respect of the payment claims dated 26th September 2008, 24th October 2008, 28th November 2008 and 5th December 2008 and in essence merely duplicated those respective payment claims; and

(b) it was not open to O'Brien to find in accordance with law or the Act, and he erred in so finding, that the payment claim dated 24th April 2009 was valid despite section 14(6) of the Act.

Ground 4: Alternatively to Ground 3 above, it was not open to O'Brien to find in accordance with law or the Act, and he erred in so finding, that section 14(7) of the Act applied to the payment claim dated 24th April 2009 or that PCJV was entitled to serve the said payment claim in circumstances where it did not claim for further work or additional sums alleged to be due.

Ground 5: Contrary to section 14(8) of the Act, O'Brien erred by failing to reject the payment claim dated 24th April 2009 on the basis that it amounted to more than one payment claim in respect of the reference dates 26th September 2008, 24th October 2008, 28th November 2008 and 5th December 2008.

Ground 6: Alternatively to Ground 5 above, it was not open to O'Brien to find in accordance with law or the Act, and he erred in so finding, that the payment claim dated 24th April 2009 was not made in respect of the reference dates 26th September 2008, 24th October 2008, 28th November 2008 and 5th December 2008.

Ground 7: Contrary to section 14(9) of the Act, it was not open at law for O'Brien to find, and O'Brien erred in finding, that PCJV was entitled to rely on section 14(9) of the Act in respect of the payment claim dated 24th April 2009 where that claim:

(a) Was in respect of exactly the same work and charges for the payment claims dated 26th September 2008, 24th October 2008, 28th November 2008 and 5th December 2008; and/or

(b) Was in respect of exactly the same reference dates 26th September, 2008, 24th October 2008, 28th November 2008 and 5th December 2008; and

(c) No claim was made by PCJV for any further work or sums or in respect of any later reference dates arising after or in addition to those said payment claims or reference dates.

[419]

266 Grocon submitted, and correctly so, that it was entitled at law to make contentions in the alternative in its submissions to the adjudicators. However, Grocon was not prevented by Davenport from making alternative submissions. In paragraphs [33]-[36] of his reasons, the review adjudicator was merely seeking to highlight a difficulty he perceived for the argument Grocon was seeking to put which arose from the alternative submissions it had advanced. However, I have considerable difficulty with the reasoning of the review adjudicator on this point. The problem, I think, arose from the definition of a "variation" found in s.10A of the Act. Both of the classes of claimable variations specified in the section relate to "work that has been carried out or goods and services that have been supplied": s.10A(2)(a) and (3)(a). Section 10B, which deals with "excluded amounts", includes in the definition of that term "any amount that relates to a variation of the construction contract that is not a 'claimable variation'": s.10B(2)(a). Grocon was seeking to put a case that the whole of the sum constituted by PCJV's payment claim was an excluded amount, and therefore pursuant to s.10B(1) should not have been taken into account when calculating the amount of the progress claim. In order to make out this case, Grocon sought to establish that the amount claimed by PCJV was not a "claimable variation". In order to achieve this, Grocon also sought to establish that the work to be done pursuant to the variation had not been done or the goods and services (if any) had not been supplied, and as such would not be a 'claimable variation' pursuant to s.10A(2)(a) and (3)(a), and therefore was an "excluded amount" pursuant to s.10B(2)(a). This is precisely what Grocon submitted to the review adjudicator. However, he took the view, erroneously in my opinion, that the statutory definition of "variation" in s.4 of the Act, as applied to s.10B(2)(a) of the Act (the excluded amounts provision), meant that "variation" as used in that sub-section applied only to work that had been done or goods and services which had been supplied. However, the s.4 definition of variation under the Act does not say that. It provides:

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