[45]
His Honour then identified the provisions which he regarded as essential[7]; but when it came to considering s 17 of the NSW Act dealing with the time when an adjudication application can be made and as to its contents, he held that a failure to comply strictly with that provision was not a jurisdictional error of law. His Honour further held that, first, so long as the adjudicator made a bona fide attempt to exercise the relevant power and the adjudicator substantially complied with the rules of natural justice, the determination would not be void[8]. Further, to the extent that the decision was voidable, the remedy of certiorari was not available[9].
[46]
There are very significant differences between the Building and Construction Industry Security Payment Act 1999 (NSW) and the Construction Contract (Security of Payments) Act (NT). There is no equivalent s 33(1)(a) of the NT Act and there are a number of other important differences. The NT Act is modelled on the Construction Contracts Act 2004 (WA). Structurally, the WA Act and the NT Act bear little resemblance to the NSW, Victorian or Queensland Acts. Great care must be exercised in relying on decisions from those jurisdictions as to the interpretation to be given to the NT Act. Nevertheless, I consider that there is much guidance to be had on questions of statutory interpretation and jurisdictional error.
[47]
It was submitted by the plaintiff that the question of whether or not the application is made in time is clearly, under the NT Act, a "condition laid down by the Act as essential for there to be a determination". Section 33(1)(a)(iii) has the result that non-compliance cannot lead to a determination, only to dismissal. The other factors to be considered also support this conclusion. If the time limit was non-essential, there would be no pressure to apply within time. This would not support the objective of a "rapid resolution" of payment disputes. The lack of any power to extend time, also points to this conclusion. No permanent prejudice to any party is involved by holding that the time limit is essential. The NT Act is so markedly different from the NSW Act that I ought not follow Brodyn's case on this particular point. If there was in fact no claim served within 90 days as required by the Act, the determination is void.
[48]
I reject this submission. If the adjudicator has jurisdiction to determine whether or not the 90 day time limit has been complied with, his decision cannot be void. I note that under the NSW Act there were also time limits which had to be complied with[10]. In Brodyn, Hodgson JA specifically held that the legislature did not intend that exact compliance with that provision was essential to the existence of a determination[11]. I consider that the structure and purposes of the Act do not support a conclusion that an adjudication is void if the adjudication wrongly concludes that the time limits have been complied with.
[49]
I also agree with Hodgson JA in Brodyn[12] that if the adjudicator did not make an honest attempt to decide whether or not the application should be dismissed under s 33(1), his decision would be void; and the same would apply if the adjudicator substantially denied natural justice to the party affected by his decision. There may also be other grounds leading to the same result, but it is not necessary to discuss them here. In this case there is no question that Mr Ford did not make an honest attempt or denied natural justice to IFS.
[50]
Similarly, I agree with the conclusion expressed by Hodgson JA in Brodyn[13] that relief in the nature of certiorari does not lie, for the reasons that he gave and for the additional reason that the Act provides only for a limited appeal if the adjudicator dismisses the application and not otherwise[14] and specifically provides that his decision is otherwise not subject to appeal or review[15].
[51]
In case I am wrong in reaching this conclusion I will also express my view as to whether Mr Ford was correct in his conclusion that the application was brought in time.