HIRE ACCESS PTY LTD -v- MICHAEL EBBOTT T/AS SOUTH COAST SCAFFOLDING AND RIGGING [2012] WASC 108 (15 March 2012)

4 The adjudicator concluded that the application was out of time and dismissed it. The respondent then applied to the SAT for a review of the decision of the adjudicator. On 10 January 2012 the Tribunal granted the application for review, it set aside the decision of the adjudicator and remitted the matter back to the adjudicator to be decided in accordance with the Construction Contracts Act.

5 On 23 January 2012 the adjudicator reconsidered the issue and determined that the appellant was liable to pay the amount claimed on the invoices plus interest. The adjudicator also determined that the amount due was to be paid by 7 February 2012.

6 As I have earlier noted, it was on 7 February 2012 that these appeal proceedings were commenced. They are not proceedings in respect of the adjudicator's second determination; rather, they are an appeal from the decision of the SAT of 10 January 2012 pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). As it happens, 7 February was not only the day set by the adjudicator for payment but also the last day for the filing of an appeal from the SAT decision pursuant to s 105(5) of the SAT Act.

7 The appellant seeks interim orders as follows: First, that the SAT decision and its orders of 10 January 2012 be stayed pending determination of the appeal; secondly, that the determination of the adjudicator of 23 January 2012 be stayed pending determination of the appeal and, thirdly, that the appellant is not liable to make payments as determined by the adjudicator pending the appeal.

8 The application is supported by an affidavit of Biao Hu sworn and filed on 7 February 2012. Mr Hu is the solicitor for the appellant. Mr Hu deposes to the fact of the adjudicator's determination and then states at paragraphs 8 to 10:

1. The Appellant will not be liable to pay the Respondent if after leave to appeal is granted, its appeal succeeds.
2. It is unlikely that the question of leave to appeal will be decided before 7 February. For that reason I believe that these interim orders are necessary.
3. I believe that these interim orders are necessary because otherwise the Appellant is likely to be in contravention of the determination and liable to enforcement pursuant to the provisions of Division 5 of Part 3 of the Construction Contracts Act 2004.

9 In essence, the appellant says that the payment should be stayed because it might succeed on the appeal. The implication is that if successful and the adjudicator's original decision is reinstated, there would be no obligation to pay.

10 The first problem with the application is that it is seeking to stay something which was not ordered by the SAT. The SAT did not order payment. That was the decision of the adjudicator.

11 Order 65 rule 13 permits the making of interim orders on an appeal of this nature. The phrase 'interim orders' is defined in O 65 r 1 as meaning, relevantly, 'an order staying the proceedings in the primary court or the execution of the primary court's decision'.

12 'The primary court' in relation to an appeal is defined to mean 'the court, tribunal, body or person that made the decision being appealed'. The primary court in this case is the SAT. The adjudicator is not the primary court and there is no power to make an order in these proceedings to stay the adjudicator's second determination. Accordingly, the order sought staying the adjudicator's determination of 23 January 2012 cannot be made.

13 As regards a stay of the SAT decision and orders, the fact is that those orders have been completely implemented. The SAT ordered that the original determination be set aside and the matter be remitted to the adjudicator. That was done and the adjudicator has made a fresh determination. At risk of using a tired cliché, the horse has bolted.

14 It has been suggested by the appellant that the adjudicator's second determination is dependent for its validity on the SAT orders and that a stay of those orders would have the effect of staying the adjudicator's determination. That is not correct.

15 The first determination was set aside by the SAT and the matter was remitted. The effect of this was that the adjudicator had to determine the matter afresh, albeit with the guidance of the SAT's decision. The second determination did not, however, derive its validity from the SAT orders. It was a determination made pursuant to the Construction Contracts Act and derives its lawful character from that Act.

16 This position is reinforced by the fact that the Construction Contracts Act requires a successful party to an adjudication to apply to a competent court for entry of judgment and for leave to enforce the determination: see s 43. In these circumstances, the appellant would have an opportunity to seek a delay or deferral of enforcement from the court to which such an application is made. I make no comment on whether such an application would have merit in the circumstances of this case, but the availability of that avenue counts against any argument that it is necessary to construe the power to stay provided for in O 65 more broadly than the words of the Rules indicate.

17 In the present case, the respondent has commenced proceedings in the District Court to enter judgment and for leave to enforce the adjudicator's determination. I am told that that application has been adjourned sine die pending this application.

18 In my view the District Court has ample power to decline leave to enforce the judgment if such a course is merited, or to grant a suspension order under the Civil Judgments Enforcement Act 2004 (WA). With those proceedings afoot, it would not be appropriate for me to make further comment in that regard.

19 In these circumstances, I conclude that the orders must be refused because, first, in the case of the adjudicator, there is no power to make it, and, secondly, in the case of the SAT, there is nothing to stay.

20 I will say something about s 105(9) and s 106 of the SAT Act since they have been referred to in oral submissions today. Neither of those provisions in my view would produce a different result. They clearly relate to the SAT decision and, as I have noted, there is nothing left in respect of that decision that can properly be stayed.

21 There has also been reference made to O 65 r 4. In my view, that rule deals with programming orders designed to ensure the efficient hearing of appeals of this nature. It does not relate to stay applications for which there is specific provision in r 1 and r 13. Even if it did, my conclusion would not be any different.

22 In the event that I am wrong and it is open to me to grant stays of the type sought, I would not in any event do so. That is because I am not satisfied that the grounds to justify the exercise of the discretion to grant a stay have been made out. I bear in mind the principles referred to in by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. Those principles were stated in the context of a stay of enforcement of a judgment but they are equally applicable to a stay in an appeal of this nature.

23 In particular, I am not satisfied that the appellant has made out a justification for a stay. There are no special circumstances that would justify departure from the ordinary rule that the successful party at first instance is entitled to enforce the judgment pending determination of the appeal. There is no evidence to justify a conclusion that the appeal would be rendered nugatory unless a stay was granted. In particular, there is nothing to suggest that the appellant would be unable to recover any money paid in the event it was successful on the appeal.

24 Mr Hu's affidavit states the obvious fact that if a stay is not granted, the appellant would be liable to enforcement of the determination. That does not mean that a stay is necessary; nor does the fact of an appeal create any presumption that the decision appealed from, or any consequences of it, must be placed in abeyance.

25 I have also had regard to the object of the scheme provided for in the Construction Contracts Act as set out by Murphy J in Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 [87] [88]. As his Honour noted, the scheme contains a bias in favour of the payment of money due under a determination in furtherance of the underlying purpose of maintaining the flow of money.

26 It is also relevant to take into account whether the appeal has good prospects of success. I am unable to make a determination in that regard given that no submissions have been filed and that a substantive hearing is yet to have been held. However, I do note that the decision appealed from applied an earlier decision of the SAT in Blackadder Scaffolding Services (Aust) Pty Ltd and Mirvac Homes (WA) Pty Ltd [2009] WASAT 133. Blackadder was not itself appealed and has been since applied in a number of other SAT decisions. It has not been suggested to me that this appeal is assured of success and, in any event, I could not so conclude. Although I accept that an important issue of interpretation will arise on this appeal, that fact does not in itself place the case into a special category.

27 Every appeal of this type from the SAT must involve a question of law and, as has been properly pointed out, the avenues for review from an adjudicator's decision are necessarily limited by s 46 of the Construction Contracts Act. That the appeal relates to whether a jurisdictional fact existed for the purposes of the exercise of the adjudicator's jurisdiction is correct, but it does not in my view change the fact that in the ordinary course the respondent would be entitled to enforce the decision at first instance, barring some reason that that decision ought be stayed.

28 I also take into account the balance of convenience. The evidence that is available to me does not show that the appellant would be prejudiced if the determination was not stayed other than by payment of the money which would be required under the determination that was made by the adjudicator on 23 January 2012. The onus is on the applicant to show that the balance of convenience favours a stay. That onus has not here been discharged.

29 As regards any practical difficulties, it has been suggested in oral submissions today that a stay ought be granted to avoid the inconvenience of two sets of proceedings dealing with the same issues. I am not satisfied that the issues are in fact the same. The issue in the District Court relates to whether the determination should be entered as a judgment and whether leave should be granted to enforce it. The questions pending before this court are of a different nature. In any event, I am not satisfied that it is the case that there will be inconvenience to the parties if there were two sets of proceedings. I am, therefore, not satisfied that this factor justifies the grant of a stay.

30 For those reasons, even if it were open to make stay orders, which it is not, I would not in any event do so in the exercise of my discretion.