Icon Co (NSW) Pty Ltd v AMA Glass Facades Pty Ltd

The situation before the Court

1. There is thus this spectacle: 1. on the one hand, AMA contends that Mr Rivlin should have found that Icon was estopped from contending that Ms Durham's construction of the Contract was incorrect; and 2. on the other hand, Icon contends that Ms Durham, when considering that construction question for the second time in the Second Durham Determination, should have found that AMA was estopped from contending that Mr Rivlin's construction was incorrect.
2. This highly unsatisfactory situation has been caused by two things.
3. The first is Mr Rivlin's decision to express different opinions as to the construction of the contract to those expressed by Ms Durham.
4. Irrespective of whether Ms Durham's construction was correct or her opinions were "fundamental" to her determination in the sense of being the sole basis for her findings, it was not appropriate for an adjudicator to, in effect, dissent from earlier adjudicative expressions of opinion in relation to the same provisions of the same contract between the same parties in adjudications arising from the same project.
5. It was also subversive of the intended operation of the Act, which is to establish a "coherent, expeditious and self-contained" scheme, [6] "designed to act quickly", [7] and to achieve the result that "each party knows precisely where they stand at any point of time". [8] That intended operation of the Act is illustrated by s 22(4) which provides that where an adjudicator determines the value of any construction work carried out under a construction contract or of any related goods and services to such work, subsequent adjudicators must adopt the same value, unless it can be shown the value has changed.
6. AMA submitted that s 22(4) is "not an exhaustive statement of the matters determined by an earlier adjudication that are binding on a subsequent adjudicator" and that the Act "manifests an intention to preclude re-agitation of the same issues". I agree.
7. The second is AMA's response to the Rivlin Determination. AMA did not, until now, seek to challenge the Rivlin Determination in the usual way. Rather, on 26 October 2018, within the three month time limit in UCPR r 59.10 for the commencement of proceedings for judicial review of the Rivlin Determination, AMA served on Icon a payment claim relevantly identical to that the subject of the Rivlin Determination. AMA then, in its adjudication application, put the same argument that it now seeks to put in these proceedings, namely that Icon was estopped from contending before Mr Rivlin that the conclusions expressed in the First Durham Determination as to the proper construction of the Contract were incorrect.
8. This course was adopted in the face of judicial deprecation of the practice of the repetitious use of the adjudication process the subject of Allsop P's observations that I have set out at [13].

What is to be done?

1. It is common ground that if the Rivlin Determination is valid, the Second Durham Determination is invalid as it dealt with a payment claim relevantly identical to that dealt with in the Rivlin Determination.
2. Notwithstanding my misgivings concerning Mr Rivlin's decision not to adopt Ms Durham's construction of the relevant provisions of the Contract, I doubt that the Rivlin Determination is thereby invalid.
3. An issue estoppel will only arise if the issue in question is "fundamental" in the sense of being "legally indispensable to the conclusion" in question. [9] An issue estoppel does not cover "subsidiary or collateral matters of law or fact". [10] If the issue in question was one of a number of alternative bases for the relevant decision it will not have the requisite "legal indispensability" such as to attract the doctrine of estoppel.
4. I think there is substance in Icon's submission that Ms Durham's conclusions in the First Durham Determination as to the proper construction of the relevant provisions of the Contract were one of a number of bases upon which she concluded that AMA was entitled to variation and Icon was not entitled to liquidated damages.
5. However, I need not form any final view about that question because there are a number of reasons why I consider I should not entertain AMA's challenge to the Rivlin Determination.
6. The first of those reasons is that AMA's application to impeach the Rivlin Determination is made outside the three month time limit in UCPR r 59.10 which is, relevantly, in the following terms: "(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest."
7. The Rivlin Determination was made on 13 August 2018. The three month period referred to in UCPR r 59.10(1) expired on 13 November 2018. AMA filed its cross-summons on 22 February 2019. No witness on behalf of AMA has proffered an explanation for the delay.
8. It is true that UCPR r 59.10, in terms, imposes a time limit only in relation to proceedings for judicial review. In its cross-summons AMA is, in addition to seeking judicial review of the Rivlin Determination seeking a declaration that the Rivlin Determination is void.
9. However, the Court of Appeal has opined that the three month basis should been seen as applying also to declaratory relief. In Buttrose v Attorney General of New South Wales, [11] Beazley P and Leeming JA said: "Contrary to the position taken by the parties, we would not lightly conclude that merely because the relief sought is declaratory that the general provisions in Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) do not apply. That Part applies generally to 'proceedings under section 65 and section 69 of the Supreme Court Act and other proceedings in the supervisory jurisdiction of the Supreme Court': r 59.1(1)(a). Rule 59.10 provides that proceedings for judicial review must be commenced within three months of the date of the decision, and confers a power for that time period to be extended at any time. Although the rule does not apply 'to any proceedings in which the setting aside of a decision is not required': see r 59.10(5), our preliminary view is that the three month period would either apply directly, or alternatively inform the Court's discretion to grant declaratory relief, even though the formal setting aside of a decision is not required. The substance of the rule is that challenges to the exercise of executive power should be brought reasonably promptly, or else be accompanied by an explanation as to why that did not occur."
10. I am not persuaded that I should grant leave to AMA to apply for an extension of time to seek relief. AMA has been aware of the Rivlin Determination since it was made. Its decision inappropriately to challenge the Rivlin Determination by resubmitting the payment claim, rather than apply for declaratory or prerogative relief, has caused prejudice to Icon in that Icon has now had to resist AMA's adjudication application to Ms Durham as well as bring these proceedings to quash the consequent determination.
11. I would, in any event, withhold relief from AMA on discretionary grounds similar to those that commended themselves to Sackar J in State Water Corporation v Civil Team Engineering Pty Ltd, [12] in which case his Honour said: "I note additionally, though strictly unnecessarily, that the remedy Civil Team seeks is discretionary. The delay in seeking to quash Mr Wilson's determination, the absence of an explanation for such delay, and, if I may say so, the obvious and overwhelming inference arising from the circumstances in which Civil Team's application is brought (namely that it is a forensic move to remove one of the grounds of State Water's attack on Mr Sive's adjudication determination), are factors which, taken together, would in any event have led to my refusal, as a matter of discretion, to quash Mr Wilson's adjudication determination (Victims Compensation Fund Corporation v District Court of New South Wales & Ors [2001] NSWCA 241 at [9]-[10] per Heydon JA with whom Handley and Stein JJA agreed; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, (2000) 204 CLR 82 from [52] per Gaudron and Gummow JJ)."
12. Like Sackar J, in the absence of any explanation for the delay, I would infer that AMA decided not to follow the usual procedure of seeking prerogative relief to quash the Rivlin Determination, and to instead serve the further payment claim, which was a repetition of the payment claim determined by Mr Rivlin, in the hope of securing a more favourable determination.

Conclusion

1. For those reasons I propose to make an order in the nature of certiorari quashing the Second Durham Determination and to dismiss the cross-summons.
2. I invite the parties to bring in short minutes to give effect to these reasons.

Endnotes

1. Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69 at [51]-[62] (Macfarlan JA, Handley AJA agreeing at [76]).
2. Sunshine Coast Regional Council v Earthpro Pty Ltd [2015] QSC 168 at [2] (Byrne SJA).
3. Kingston Building (Australia) Pty Ltd v Dial D Pty Ltd [2013] NSWSC 2010 at [13]-[14] (McDougall J).
4. Kingston Building at [13]; Arconic Australia Rolled Products Pty Limited v McMahon Services Australia Pty Ltd [2017] NSWSC 1114 at [13] (McDougall J).
5. Dualcorp Pty Ltd v Remo Constructions Pty Ltd at [2].
6. Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379; (2016) 344 ALR 355 at [59].
7. Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2017) 351 ALR 225 at [40].
8. Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [47].
9. Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23 (Dixon J).
10. Fernando v Commonwealth of Australia (2014) 231 FCR 251; [2014] FCAFC 181 at [43] (Besanko and Robertson JJ) citing Blair v Curran (1939) 62 CLR 464 at 532 to 533; [1939] HCA 23 (Dixon J).
11. [2015] NSWCA 221; (2015) 324 ALR 562 at [13].
12. [2013] NSWSC 1879 at [72]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2019