J.R. & L.M. Trackson Pty Ltd v NCP Contracting Pty Ltd & Ors [2019] QSC 201

1. The applicant submitted the covering email here should have cited a single total amount claimed. However, it is obvious when the documents are considered together that the amount claimed was the total of the four amounts stated in the invoices. The absence of a statement of the mathematical total of those amounts does not make the statements of the four amounts considered in combination any less a statement of the amount of the progress payment claimed. I am fortified in that conclusion by s 32C of the Acts Interpretation Act 1954 (Qld) which provides that in an act words in the singular include the plural and vice versa. Thus a payment claim which states the amounts of the progress payment claims to be payable will comply with section 17(2)(b) as long as those amounts are stated as part of one payment claim.
2. When collective consideration is given to the content of all of the documents served it is readily discernible that the combined total of the invoices served was one payment claim and that it was said to be made under the Act. The documents were served together and it would have been obvious to their recipient that they fell for consideration collectively. When they are considered collectively it can be seen that what was served was one payment claim and that it met the requirements of s 17."

[90] NCP also relied upon Walter Constructions Group Ltd v CPL (Surry Hills) Pty Ltd,[15] in which Nicholas J of the New South Wales Supreme Court dealt with an argument that documents served on a recipient, purporting to be a payment claim, were ambiguous or lacking in clarity to such an extent that it was not reasonably apparent to the recipient that it had been served with a claim under the New South Wales equivalent of BCIPA.

[91] In rejecting that argument, Nicholas J applied an objective test as to how the documents would have been reasonably understood by the recipient. His Honour said -

"82 Section 31(2)(c) requires the payment claim to state that it is made under the Act. It must be clear on the face of the document that it purports to be a payment claim under the Act. The test is an objective one. In deciding the meaning conveyed by a notice a court will ask whether a reasonable person who had considered the notice as a whole and given it fair and proper consideration would be left in any doubt as to its meaning ..."

[92] His Honour referred to authority which emphasised the need for a common sense and reasonable approach.[16] His Honour determined the matter from the point of view of a reasonable recipient of the documents.

[93] As to how the documents in this case were likely to be reasonably understood by Trackson, counsel for Trackson submitted that I ought not to view the documents entirely objectively. He said, "given the history between these parties and what appears to have been a reaction by the respondent to what happened at the first adjudication, this would be understood by the parties here as three payment claims, because the obvious intent is to try and avoid the same thing happening that happened at the first adjudication".[17] In oral submission in reply,[18] in further support of its submission that I ought not to view the documents entirely objectively, Trackson relied upon Multiplex Construction v Lukiens and Anor[19] and Protectavale v K2K Pty Ltd.[20]

[94] Multiplex v Lukiens is a decision of Palmer J of the New South Wales Supreme Court. One of the errors said to have been made by the adjudicator in that case was that he failed to take into account Multiplex's reason for non-payment of certain items (namely, that those items had been deleted from the contract). The adjudicator was of the view that the reasons for withholding payment stated in the Payment Schedule had not been sufficiently indicated. The relevant part of the Payment Schedule referred to "scope deletions" in an abbreviated way.

[95] Palmer J held that the adjudicator erred in holding that the reasons had not been sufficiently indicated. His Honour said -[21]

"A payment claim and a payment schedule are, in many cases, given and received by parties who are experienced in the building industry and are familiar with the particular building contract, the history of the construction of the project and the broad issues which have produced the dispute as to the claimant's payment claim. A payment claim and payment schedule must be produced quickly; much that is contained therein in an abbreviated form which would be meaningless to the uninformed reader will be understood readily by the parties themselves. A payment claim and a payment schedule should not, therefore, be required to be as precise and as particularised as a pleading in the Supreme Court. Nevertheless, precision and particularity must be required to a degree reasonably sufficient to apprise the parties of the real issues in the dispute."

[96] In the Federal Court, in Protectavale, Finklestein J referred to Multiplex in stating that, while the test as to whether an invoice met the requirements of a payment claim under the Act was objective, its terms had to be read in context. His Honour said: "Payment claims are usually given and received by parties experienced in the building industry who are familiar with the construction contract, the history of the project and any issues which may have arisen regarding payment. Those matters are part of the context".[22]

[97] In the present case, an examination of the history reveals that, for the purposes of the adjudication of the claim made on 27 September 2018, NCP spelt out its position. In its adjudication application relating to the wet hire invoice it said:

"12.2 Progress claim 6 was the subject of adjudication decision number 409951 dated 23 August 2018 which ultimately found that the adjudicator had no jurisdiction to decide the application because Progress Claim 6 related to three separate construction contracts.

12.3 Having objected to the validity of Progress Claim 6 which included claims for payment pursuant to three contracts or arrangements; the respondent now seeks to circumvent the operation of BCIPA by objecting to the applicant making three separate payment claims pursuant to those three contracts or arrangements.

12.4 The effect of adjudication decision 409951 is that Progress Claim 6 was invalid for the purposes of BCIPA.

12.5 It follows that the applicant must make a new claim, and for it to be a valid claim for the purposes of BCIPA, three separate payment claims must be made. The applicant has made three separate claims under BCIPA.

12.6 The contractual basis of the applicant's claims is abundantly clear (both in the adjudication application and in this Payment Claim) and at no time has the applicant waivered from that position."

[98] The characterisation of the claims as separate claims was reflected in the affidavits of Ms Diamond and Mr Selke submitted in support of NCP's adjudication application.

[99] In its adjudication response to the wet hire claim (invoice 1012) Trackson said:

1. The Respondent accepts that the Payment Claim is as provided by the Claimant in the Statutory Declaration of Tracey Lee Diamond ... as a full copy of the Claim that was served upon the Respondent.
2. The Payment claim was served in a single email comprising three payment claims, and it was not apparent whether this amounted to a single payment claim under one contract or three separate claims under three separate contracts.
3. This Payment Claim is a repetition of Progress Claim 7 submitted under the Schedule of Rates Contract, with that claim being split into three parts and three alleged separate contracts.

1. The Respondent, consistent with its view that there has only ever been one contract between the parties, served a single Payment Schedule...[23]"

[100] As the extract immediately above shows, Trackson stated (for the purposes of its adjudication response) that it "was not apparent" to it when it received the payment claim for 27 September 2018 whether the email and invoices attached amounted to one claim or three (see [27] in the quote immediately above). That statement is inconsistent with the submission made by its counsel here that the email and its attachments were understood by Trackson as three payment claims.[24] In those circumstances, I consider it appropriate to consider the documents objectively.

[101] The authorities emphasise the need to approach this issue in a way which does not give undue emphasis to form over substance, having regard to the purpose for the prohibition upon service of more than one payment claim per reference date, and to consider the way in which the documents were likely to be reasonably understood by their recipient.

[102] I find that NCP served one payment claim, by email (and in hard copy), comprising three invoices.

[103] I have reached that conclusion for these reasons: The invoices were sent as attachments, under one email cover. They were sent collectively and at the same time. They bore the same date. They concerned work under the same construction contract and they each referenced the same project. Reasonably understood, Trackson would have appreciated that NCP was claiming the total of the invoice amounts in its payment claim for September. Viewed reasonably, there was not service of more than one payment claim upon Trackson for one reference date.

[104] I find that the payment claim met the requirements of BCIPA and was valid.

Was the adjudication decision invalid because it was one of two adjudication applications made by NCP arising out of one payment claim?

[105] This argument, that the adjudication decision was invalid because NCP submitted two adjudication applications for one payment claim, was first made in Trackson's written submissions in reply to NCP's response.

[106] Trackson's primary position was that NCP had served more than one payment claim for one reference date, contrary to section 17(4) BCIPA. Its secondary position was that if I were to find that NCP had served only one payment claim, then the adjudication decision was invalid because on the basis of that single payment claim, NCP made two adjudication applications.

[107] This secondary argument seeks to take advantage of the position in which NCP found itself after the first adjudication. To accommodate the first adjudication decision, NCP characterised its payment claim, consisting of three invoices, as three separate payment claims. Consistently with that characterisation, it pursued two of those claims through adjudication separately.

[108] The second adjudicator, who did not agree that separate payment claims were required, nevertheless adjudicated the claims as separate claims - abiding by the decision of the first adjudicator.

[109] Trackson's secondary position is one that argues, in effect, that NCP ought to have persisted in its characterisation of its three invoices as a single payment claim - notwithstanding what had occurred at the first adjudication. Having said that, I record that I appreciate that the parties cannot confer jurisdiction beyond that which is conferred by BCIPA.

[110] NCP submitted that there was no authority to support an argument that - were I to find that there was only one payment claim - the adjudication application in respect of the wet hire claim was invalidated because NCP also filed an adjudication application in respect of its float hire claim.

[111] It argued that, on the assumption that it had in fact served one payment claim on

27 September 2018 -[25]

• it was entitled to submit one adjudication application in respect of its one payment claim;
• it was not required to pursue the whole of its claim through adjudication: I could treat the adjudication application for the wet hire claim as an adjudication application for of its claim;

"44 It seems to me that, because s 13(5) prevents ... the service of more than one payment claim per reference date per construction contract, and because the right to adjudication "of a payment claim" is clearly referable to a payment claim that complies with the various requirements of s 13, there can be only one adjudication application for any particular payment claim for any particular contract.

45 The proposition that there may be multiple adjudication applications in respect of different parts of a payment claim seems to me to be completely inconsistent with the underlying objective of the Act, which is to provide for an enforceable right to progress payments and a relatively cheap and efficient means for enforcement of those rights ...

46 Thus, I seems to me, the better view of s 17(1) is that there can only be one adjudication application for any one payment claim. To put it another way, it seems to me that s 17(1) does not authorise the lodging of multiple adjudication applications in respect of the one payment claim.

47 On that basis, the adjudicator was required to do as he did, and to consider whether the objection to jurisdiction was good ..."

[116] As noted, the adjudicator reasoned that there were in fact 25 separate contracts between the parties, one for each separable part of the works. That was an approach which neither party had taken. Nor had the parties been given notice of the adjudicator's intention to decide the matter on that basis or given an opportunity to be heard on the point. McDougall J concluded that the parties had been denied natural justice and had the parties - Railcorp in particular - been permitted to make submissions on the point, the adjudicator might have been (and should have been) persuaded to change his mind. McDougall J concluded that there had been a material denial of natural justice which rendered his determination void.[28]

[117] NCP is correct in its submissions that this case did not address the question whether the first of the adjudication applications was valid.

[118] In Alan Conolly, it was argued that the "second and third purported payment claims" were not valid because the claimant had served more than one payment claim. Master Macready noted that implicit in that argument was the concession that the first page of the facsimile constituted a valid payment claim.[29] Trackson made the point that it had not made that concession in this case. Its position was that if there was more than one payment claim, they were all invalid. As I understood Trackson's point in referring to Alan Conolly, it was that, consistently with its payment claim position, if there was more than one adjudication application made, they were all invalid.

[119] Proceeding on the assumption that NCP was entitled to make only one adjudication application, and on the assumption that the "second" application did not invalidate the "first", raised the issue of which adjudication application was the "first" one.

[120] That issue may be resolved by reference to the file numbers allocated to the adjudication applications. It is reasonable to assume that the adjudication registrar issues file numbers to adjudication applications in ascending numerical order. On that basis, adjudication number 443788 was made to the registrar before adjudication number 443792. On that basis, the application determined by the adjudicator was the "first" adjudication application.

[129] As noted above, the adjudicator called a conference of the parties.

[130] Sections 25 and 26 BCIPA are relevant to Trackson's arguments about the conference. Section 25 is set out above. Section 26 follows -

(a) the amount of the progress payment, if any, to be paid by the respondent to the claimant (the 'adjudicated amount'); and

(b) the date on which any amount became or becomes payable; and

(2) In deciding an adjudication application, the adjudicator is to consider the following matters only -

(a) the provisions of this Act and, to the extent they are relevant, the provisions of the Queensland Building Services Authority Act 1991, part 4A;[32]

(b) the provisions of the construction contract from which the application arose;

(c) the payment claim to which the application relates, together with all submissions, including relevant documentation, that have been properly made by the claimant in support of the claim;

(d) the payment schedule, if any, to which the application relates, together with all submissions, including relevant documentation, that have been properly made by the respondent in support of the schedule;

(e) the results of any inspection carried out by the adjudicator of any matter to which the claim relates.

(b) include the reasons for the decision, unless the claimant and the respondent have both asked the adjudicator not to include the reasons in the decision."

Was the adjudicator permitted to receive evidence from a "witness" at a conference of the parties?

Was the adjudicator permitted to take into account "submissions" made during the conference in deciding the adjudication application?

[131] This matter proceeded on the understanding that a "conference" called by an adjudicator involved a meeting to discuss matters an adjudicator wished to clarify for the purpose of an adjudication decision.

[132] Trackson argued that there were irregularities in the conference called by the adjudicator and that his adjudication decision should therefore be set aside.

Trackson's arguments that there ought to be no witnesses at a BCIPA conference

[133] Trackson argued that the conference held by Mr Sarlos was irregular because it included "witnesses" who were not parties. I note that Mr Sarlos invited the parties to bring along to the conference not more than two persons "for support".

[134] The "witnesses" in attendance at the conference were persons who had submitted statutory declarations in support of NCP's adjudication application submissions and Trackson's adjudication response - although Mr Trackson's presence was as a director of a party as well as a declarant.[33]

[135] Trackson's position was that a conference may be used by an adjudicator to resolve questions of fact (in effect acknowledging the weight of the authority relied upon by NCP to make that point)[34] but the only conference permitted by BCIPA was one involving the parties, not one involving "an oral hearing of the evidence of witnesses, namely Mr Hargreaves".

Trackson's arguments that there could be no submissions made at a BCIPA conference

[136] Trackson argued that "submissions" could not be made at a conference, and the fact that "submissions" were made there rendered it irregular. It said -

"The Act does not refer to submissions being made at a conference. The mandate in s 25(4) that the conference must be conducted informally and in the absence of legal representatives. (sic) The drafters of the Act would expect that submissions would be made by the parties' legal representatives."[35]

[137] In other words, Trackson argued that only written submissions,[36] by a party's legal representative were permitted by BCIPA. Trackson argued that "[i]f the parties were permitted to make submissions at a conference, then an experienced (and perhaps legally trained) party representative would have a significant advantage over a lay party, experienced in adjudication procedures".

Trackson's arguments that submissions made at a conference could not be taken into account by an adjudicator

[138] As a complement to its argument that submissions could not be made at a conference, Trackson argued that the only submissions which could be considered by an adjudicator were those made in support of, or in response to, the adjudication application, or under section 25(3)(b) BCIPA. If submissions were, impermissibly, made at a conference, then the adjudicator was not permitted to consider them "by operation of section 26(2) BCIPA".

[139] Trackson argued that -

• by sections 26(2)(c) and (d), the adjudicator may only consider submissions "properly made" by the parties - that is, submissions made in support or, or in response to, the adjudication application, or written submissions requested by the adjudicator under section 25(3)(b);
• the adjudicator improperly accepted submissions (in the sense of evidence) from Mr Hargreaves at the conference;
• in his adjudication decision, contrary to section 26(2), the adjudicator relied upon Mr Hargreaves conference submissions to resolve issues about -
  • whether there was an implied term of the contract that the amounts claimed were on account;
  • ostensible authority; and
  • work being outside the schedule of rates;
• the consideration of Mr Hargreaves' submissions was not permitted by section 26(2) and constituted jurisdictional error; and
• the adjudication decision was therefore invalid.

[140] In my view, Trackson's view of a BCIPA conference renders it of extremely limited utility. I raised this with counsel for Trackson at the hearing -

"MR GREINKE: ... my contention will be that the conference of the parties does not permit submissions to be made on which the adjudicator can rely and that's really a question of statutory interpretation of the surrounding matrix in relation to the way the Act operates.

MR GREINKE: The purpose, according to the authorities, and several that were cited my learned friend's outline, is for the adjudicator to resolve factual matters in relation to understanding the claims of the parties, and put the parties into the one place and ask them questions.

HER HONOUR: So you draw a - but you don't say the answers to those questions are evidence?

MR GREINKE: I say that the limited way in which the conference can occur don't permits two types of exercises. One exercise is to treat it as a hearing by witnesses. So we say that it was wrong to allow Mr Hargraves, as a witness for one side, to come along and effectively put evidence before the adjudicator.

... And the other one was that because of the mandate that it be informal, and the mandate that you're not entitled to have legal representation, the intention of the Act is that that's not a forum for the parties to make submissions to the adjudicator when there is a formal process for putting those submissions in place through the adjudicator's response.

HER HONOUR: And if, though, you say the conference is an opportunity for the adjudicator to get some clarification about factual matters

who would you imagine attending to assist the adjudicator, other than a project manager, for example, with factual matters?

MR GREINKE: Well, one would assume the parties' representatives, their directors or the parties themselves, would be the parties to attend because it does refer to a conference of the parties. It does not refer to conference of the parties, and witnesses and other persons. And the structure of the Act itself, I submit, runs against the argument that you can conduct a hearing in relation to matters.

HER HONOUR: Yes. So I'm not so much thinking of a hearing, but I'm just thinking, in practical terms, an Act with a definite purpose and the conference, in the context of the Act, is designed to assist the adjudicator.

HER HONOUR: And it's a quick way, one imagines, a quick way for the adjudicator to get answers to questions rather than send out written requests for things.

HER HONOUR: So if you say "the parties", so you're thinking of the directors of the relevant companies, how helpful are they likely to be?

MR GREINKE: I can see your Honour's point in relation to the practicality of that, and so it's really just

if there's a distinction between evidence and submissions, that's easily understood, but if we go beyond that and say, "Well, people who might be able to give evidence of relevant facts ought not even be there because the legislation is requiring attendance by the parties"

it starts to feel like it's losing utility unless the directors are briefed previously or something like that ...

MR GREINKE: I think if I can put it this way, your Honour. The process, in my submission, will be that there's not (sic) an opportunity to put evidence in as part of the adjudication application and response, but the conference is not an opportunity to supplement that evidence and expand that evidence with witnesses that are brought along. Otherwise, it might well turn into - if that was permitted, it might well turn into an exercise of both parties arming themselves with a range of different individuals

to bolster their, effectively, quasi evidentiary case before the adjudicator.

MR GREINKE: And thus if it's a question of clarifying evidence which is already in there, one doesn't need those witnesses to be there in relation to that particular evidence.

HER HONOUR: How would it otherwise be clarified if it was technical evidence, for example?

MR GREINKE: On my client's case, by parties or the party's directors in relation to that, providing that clarification."

[141] In a later exchange with me, counsel for Trackson acknowledged that it was difficult to differentiate between what was involved in "clarifying facts" with a person present at a conference, which he submitted was permitted, and "taking evidence" from such a person, which he submitted was prohibited.

[142] He submitted that were a person other than a party/its director permitted to attend a conference, then the conference would not be "confined and informal and quick and straightforward": it would turn into a "mini-hearing", which was not permitted by BCIPA.[37]

[143] Neither party took me to dictionary definitions of "conference" or "submissions".

[144] NCP stated that there were few authorities on BCIPA conferences. Trackson did not suggest otherwise.

[145] Those to which I was taken expressly stated or impliedly conveyed that a BCIPA conference is a mechanism by which an adjudicator may resolve a question of fact or law.

[146] As Blue J recognised in Built Environs Pty Ltd v Tali Engineering Pty Ltd and Ors,[38] typically, disputes over payment claims do not involve complex legal issues but rather the valuation of work performed to date. The typical dispute is static and may be resolved on the written application and response. However, as Blue J also recognised, some disputes may involve complex issues of fact or law which may call for a conference to allow the parties to put and meet contentions and/or the opportunity for written submissions for the same purpose.

[147] In Built Environs, Blue J held that natural justice in that case required the adjudicator to permit both parties to produce to him "submissions and evidence" (beyond their original application and response) relevant to certain issues which the adjudicator had taken into account "or alternatively" to call a conference of the parties to address this issue. Thus, his Honour treated the addressing of an issue at a conference as equivalent to the written "submissions and evidence" which might be produced about it. In other words, in his Honour's view, the conference provided an occasion for the parties to address an issue orally and informally, as an alternative to written submissions and evidence.

[148] Trackson referred to David Hurst Constructions v Helen Durham[39] as authority for the proposition that a witness cannot give evidence at a BCIPA conference. In its written submissions, it referred only to part of a paragraph of McDougall J's judgment - that is, the part in which his Honour said (emphasis by Trackson) -

It is clear from the scheme of the Act that what is called for is some process or balancing or evaluating the competing materials by the parties. It is not a matter of calling evidence. Nor is it a matter of conducting a mini-trial.

[149] As NCP submitted, that statement was taken out of context.

[150] In context, McDougall J was dealing with a complaint that an adjudicator had impermissibly imposed an evidential onus upon the claimant. That statement in context (as set out immediately below) does not support Trackson's submission that a witness may not be present at a conference -

[68] The duty of an adjudicator, as laid down in [the equivalent of section 26(1)], is to determine the amount of the progress payment (if any) to be paid, the date of payment and rate of interest. In undertaking that task, the Adjudicator is to consider only so many of the matters referred to in subs(2) as may be applicable. It is clear from the scheme of the Act that what is called for is some process of balancing or evaluating the competing materials supplied by the parties. It is not a matter of calling evidence. It is not a matter of conducting some mini trial. But at the same time, if the Adjudicator is to determine the amount of a progress payment, it is implicit in the requirement to do so that he or she be satisfied that the amount so determined is in fact fairly or properly payable, having regard to the provisions of the Act and of the relevant construction contract (and any other relevant material duly put forward).

[70] Thus, one might think, it is incumbent on a claimant to put before the adjudicator material that is rationally capable of persuading the adjudicator that the amount claimed is in fact payable.

[151] In Syntech Resources Pty Ltd v Peter Campbell Earthmoving (Aust) Pty Ltd & Ors,[40] Daubney J stated that the word "submissions" in section 26(2)(d) was not to be construed narrowly: "indeed, the words of the section show specifically that submissions may include relevant documents in support". His Honour referenced Austruc Constructions Ltd v ACA Developments Pty Ltd[41] for that proposition.

[152] Neither party took me to Austruc but in that case McDougall J dealt with an argument similar to the argument made by Trackson here. His Honour was required to consider the meaning of the word "submissions" in the sections of the New South Wales Act which were equivalent to sections 21(3) and 26(2) BCIPA. In that case, it was argued that -

• "submissions" were something different from evidence;
• they were "the theory or reasoning to support the position for which a party is contending"; and
• "submissions" in support of an adjudication application could not include evidence.

[153] McDougall J rejected the argument. His Honour said -[42]

"[65] I do not think that the word "submissions" in either [section 21(3) or 26(2)] should be limited as ... submitted. Firstly, I do not think that the ordinary English meaning of the word "submission" is limited in the way that ACA contends. It is certainly correct to say that one of the definitions given by the Shorter Oxford English Dictionary is "[t]he theory of a case put forward by an advocate". However, the same dictionary also defines the word to mean "the act of submitting a matter to a person for decision and consideration"; and it gives other definitions as well. Further, the Macquarie Dictionary defines "submissions" as including "the art of submitting ... the condition of having submitted ... submissive conduct or attitude ... that which is submitted ...law an agreement to abide by a decision or obey an authority in some matter referred to arbitration ..."

"[66] It is apparent from the definitions given by both dictionaries that the 'ordinary English meaning' for which ACA contends is a specific application of a more general meaning, to the effect of "that which is submitted for decision or consideration".

[67] Secondly, I think that the better view of [section 21(3)] is that it does not limit the matters that may be put to an adjudicator in an adjudication application. In this context, I think that the mandatory language of paragraphs [(a) to (e)], and the discretionary language of [(f)], is clear.

[68] Thirdly, and in any event, I think that it is [section 26(2)] that governs the situation. It will be recalled that that subsection specifies the only matters that an adjudicator may take into account. Those matters include, through paragraph (c), the relevant payment claim 'together with all submissions (including relevant documentation) ...' Not only do the parenthesised words show that the legislature had in mind that the word 'submissions' was not to be construed narrowly ...; they show specifically that the submissions may include relevant documentation in support.

[69] It follows, I think, that if a claimant chooses to include, as part of the relevant documentation supporting its payment claim, a statutory declaration whereby relevant matters are, in effect, verified, then that statutory declaration will form part of the material to be considered by the adjudicator. Equally, if a claimant includes such a statutory declaration in its adjudication application, that is part of the 'submissions' to be considered."

[154] I respectfully agree with their Honours that the word "submissions" is not to be narrowly construed nor limited to arguments with a legal flavour.

Are "witnesses" permitted at a conference of the parties?

[155] The issue is whether persons who are not parties may attend a "conference of the parties" called in pursuance of section 26(3)(d) BCIPA.

[156] In resolving that issue, one must bear in mind the instruction in section 14A of the Acts Interpretation Act 1954 that, in interpreting a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

[157] BCIPA reflects the legislature's recognition that regular progress payments provide the cash flow which keeps subcontractors in business. BCIPA provides a scheme to expedite claims to progress payments, and a dispute resolution process in which adjudicators resolve payment disputes, on an interim basis, within tight time frames. As Mackenzie J explained in Roadtek, Department of Main Roads v Philip Davenport and Ors,[43] adjudication is "essentially a summary process based on written information". But additionally: "Further written submissions may be called for by the adjudicator ... The adjudicator may call a conference of the parties ... and make an inspection". His Honour also observed that the process of adjudication was not conducive to resolving questions of fact that cannot be resolved on written submissions or in a conference or by inspection.

[158] BCIPA aims for the speedy resolution of payment disputes. It recognises that the outcome of most adjudications will turn on questions of fact and that an adjudicator is likely to be able to resolve most payment disputes on the written submissions accompanying the adjudication application and the adjudication response. BCIPA also recognises that in some cases, either further submissions or a conference or an inspection may be required by the adjudicator.

[159] In my view, the way in which a BCIPA conference is to be held - that is informally and with resistance to legal representation - is intended to avoid the delays which might be occasioned by formality or any attempt (by a party's legal representative) to run a conference like a mini-hearing. In my view, in its requiring informality and in its resistance to legal representation, BCIPA intended an adjudicator to "call the shots" at a conference in determining how it is to be run and the issues to be discussed at it. This aligns with BCIPA's aiming for the speedy resolution of payment disputes by adjudicators with relevant expertise.

"[57] The paradigm type of dispute concerning claims is a dispute about the value of the work performed to date by the contractor out of the total work to be performed under the contract. This can involve a dispute about quantum and/or value of goods and services supplied by the contractor. It can involve a dispute about a percentage completed to date in respect of defined components of the works. It can involve a dispute about a variation. These types of disputes are the province of quantity surveyors, architects, building surveyors, project managers, building supervisors and suchlike.

[58] The value of work completed to date may also be affected by defective work. The assessment whether work is defective in the sense that it affects the value of the work completed to date is the province of architects, engineers, building surveyors, project managers, building supervisors and suchlike.

[59] The structure of the Act assumes that disputes concerning payment claims to be adjudicated under the Act will predominantly be of the above nature. This is reflected in the relatively short timing for payment schedules in response to payment claims ... adjudication responses in response to adjudication applications ... and adjudication determinations ... It is reflected in the adjudicator being confined to having regard only to the contract, the payment claim and submissions in support of it, the payment schedule and submissions in support of it and the results of any inspection carried out by the adjudicator ... It is reflected in s 18(1)(b) [of the equivalent South Australian Act] requiring regulations to prescribe qualifications, expertise and experience for a person to be an adjudicator. The Building and Construction Industry Security of Payment Regulations 2011 (SA) ... prescribe eligibility criteria encompassing architects, engineers, building surveyors, project managers, quantity surveyors and building supervisors.[45]

[60] The above is not to say that diverse other issues of law or fact might not be thrown up by a payment claim and its response and may not be determined by the adjudicator. However, the paradigm types of disputes over progress claims contemplated by the Act provide some guidance to construing the requirements of the Act."

[161] I respectfully agree with his Honour that the nature of BCIPA disputes provides guidance in the construction or interpretation of the Act.

[162] In my view, particularly having regard to the typical nature of payment disputes, it would deprive a conference of utility, and run counter to the purposes of BCIPA, were the phrase "a conference of the parties" interpreted as "a conference of the parties only".

[163] In my view, the phrase, "a conference of the parties", is a short hand way of conveying that an adjudicator must invite both sides of the dispute to a conference. It is not intended to convey that conference attendees are limited to the actual parties to the construction contract. The parties will often be corporations and, in many cases, their representatives will be unable to assist the adjudicator in resolving disputes which are "in the province of quantity surveyors, architects, building surveyors, project managers, building supervisors and suchlike". No matter how well briefed, a director, as the representative of a party, is unlikely to be able to contribute to a conference as effectively, or reliably, as a relevant witness, with relevant expertise, who is able to give evidence first hand in a dynamic, conference environment.

[164] In my view, for a conference to have utility, having regard to the purposes of the Act and the paradigm types of disputes over payment claims, those in attendance at a conference must be able to quickly provide information in response to an adjudicator's questions. In my view, witnesses other than the parties, with relevant expertise or factual knowledge, may be in attendance at a conference of the parties.

[165] As to Trackson's argument that the reason why witnesses are not permitted at a conference is to avoid the parties arming themselves with additional evidence to bolster the case they made in their written submissions, I make the following observation. BCIPA does not suggest that an adjudicator is to call a conference in every case. A party which did not put its best case forward in written submissions (accompanied by statutory declarations), and withheld witnesses for later use at a conference, would be taking a risk that those witnesses would never be heard.

[166] I found it difficult to understand this argument. Trackson argued that while issues might be clarified at a conference, evidence could not be received. It was however unable to identify the difference between a conference witness "clarifying issues" (permissibly) and giving evidence (impermissibly) at a conference. Trackson's ultimate complaint seemed to be not so much that Mr Hargraves was able to provide information (and in that sense make submissions) to the adjudicator at the conference but rather that the adjudicator took the submissions into account in his adjudication decision. Trackson also asserted that BCIPA permitted only written "submissions" from lawyers - therefore nothing in the nature of a "submission" could be made orally, by a witness, at a conference.

[167] Having concluded that witnesses may attend a conference of the parties, it follows that they may respond to an adjudicator's questions at the conference - whether the adjudicator's questions involve matters of fact of law.

[168] Taking what I consider to be an appropriately broad view of the meaning of the word "submissions", a witness's response during a conference in relation to a question of fact or law is, in my view, to be treated as a "submission" for the purposes of BCIPA. Indeed, to do otherwise would lead to peculiar consequences as is explained below.

[169] Thus, in my view, a witness may make submissions - in the sense of offering an oral response to questions of fact or law posed by the adjudicator - at a conference.

May an adjudicator take into account submissions made at a conference in reaching an adjudication decision?

[170] Trackson argued that, contrary to section 26(2) BCIPA, in reaching his decision, the adjudicator considered submissions made during the conference. Trackson complained in particular about the submissions made concerning ostensible authority because that was not a matter that had been raised before. Counsel for Trackson referred to State Water Corporation v Civil Team Engineering Ltd.[46] He submitted that, "The adjudicator's power to seek further written submissions cannot be used to invite new submissions that weren't already part of the application or response, but only to clarify existing submissions" (my emphasis).

[171] In my view, that submission by Trackson over-states the effect of the State Water paragraph relied upon (that is, paragraph [44], see below).

[172] Relevantly, in that matter, Civil Team referred a payment claim for adjudication. It complained to the adjudicator that State Water had, in its adjudication response, advanced reasons for non-payment which it had not included in the payment schedule it had provided to Civil Team ("new reasons"). Section 20(2B) of the New South Wales Act (which is the equivalent of section 24(4) BCIPA) stated that a respondent "cannot include in the adjudication response any reasons for withholding payment unless those reasons have been included in the payment schedule provided to the claimant". State Water complained to the adjudicator that Civil Team's complaint about its new reasons was an unsolicited submission, which should be ignored. The adjudicator sought no submissions from State Water in response to the complaint about its adjudication response including new reasons. Instead the adjudicator sought further submissions from the parties under the equivalent of section 25(3)(b) BCIPA about clause 12 of the contract, which was something that had been raised in the new reasons.

[173] The adjudicator awarded an amount to Civil Team which was much less that it had claimed.[47] Civil Team contended that the adjudication was void and should be quashed including because the adjudicator took into account the new reasons which had not been included in the payment schedule. State Water submitted that section 20(2B) was not offended because the submissions which the adjudicator took into account were made in response to specific requests by the adjudicator for submissions

"[44] The provision permitting an adjudicator to request further submissions from the parties ... cannot simply be exercised by an adjudicator to transform a party's submissions which were not duly made (by reason of s 20(2B)) to submissions duly made an capable of being considered by the adjudicator. That would empower adjudicators to defeat the underlying purpose of s 20(2B)."

[175] Thus, Sackar J's statement was limited to circumstances in which new reasons had been given in an adjudication response.

[176] Of more relevance is Sackar J's statement at [70], upon which NCP relied, in which his Honour went on to say that an adjudicator was permitted to consider a submission, even if it were not one duly made, if it was relevant to an issue arising under section 22(2)(a) or (b) of the New South Wales Act (that is, the provisions of the Act and of the construction contract (see section 26(2)(a) and (b) BCIPA). His Honour said (NCP's emphasis) -

"[70] However, it must be remembered that the claimant's and the respondent's submissions (duly made) are only two of a number of matters that the adjudicator is required to consider. Accordingly, an adjudicator should not ignore something of real relevance to issues arising under s 22(2)(a) or (b) or both, simply because the matter was not raised in submissions duly made by the parties ... That applies even where the adjudicator only gained an awareness of those particular matters (i.e. of particular provisions of the relevant construction contract or the Act, as opposed to the facts and circumstances of the particular case) from having come into contact with submissions not duly made ... But where the situation arises, the adjudicator must bear in mind the need to afford natural justice to the parties. To address that problem, the adjudicator may wish to call for further submissions (s 21(4)(a)) or arrange a conference (s 21(4)(c))."

[177] To the same effect are statements by Hodgson JA, with whom Beazley and Basten JJA agreed, in John Holland Pty Limited v Roads & Traffic Authority of New South Wales and Ors -[48]

"In my opinion, it is clear that the limit in s 22(2)(d) to submissions "duly made" is intended to engage s 20(2B); so that a submission included in an adjudication response contrary to the requirements of s 20(2B) is not "duly made" within s 22(2)(d). Of course, the same submission could be duly made if made in response to a request under s 21(4)(a) or in a conference called by an adjudicator under s 21(4)(c) ..."

[178] NCP also relied upon Minister for Commerce v Contrax Plumbing (NSW) Pty Limited in which Hodgson JA said (NCP's emphasis) - [49]

"[35] ... paras (a) and (b) of s 22(2) require the adjudicator to consider the provisions of the Act and the provisions of the construction contract; and in my opinion, that entitles and indeed requires the adjudicator to take into account any considerations (other than considerations arising from facts and circumstances of the particular case not otherwise before him or her) that he or she thinks relevant to the construction of the Act, the construction of the contract, and the validity of terms of the contract having regard to the provisions of the Act."

[179] In my view, if a matter occurs to an adjudicator in the course of their consideration of an adjudication application, which concerns BCIPA or the construction contract, and the matter has not been dealt with by the parties in their written submissions in support of the application and response the adjudicator may call for further submissions or call a conference of the parties to deal with the matter. Those further (written) submissions, or the submissions made by the parties about the matter at the conference, will be submissions properly made and available for the adjudicator's consideration.

[180] Further, in my view, the language used in BCIPA, in its provisions dealing with the adjudication of payment disputes (Division 2 of Part 3), does not support Trackson's argument about the limited meaning to be given to the word "submissions" or its argument that submissions made at a conference may not be taken into account by the adjudicator.

[181] To start with, the word "submissions" is not the only word used to deal with the written statements of the parties in support of the adjudication or adjudication response.

[182] The word "submissions" is used in section 21(3)(f) which states: "An adjudication application - may contain the submissions relevant to the application the claimant chooses to include".

[183] Thus, the section contemplates written submissions because they are to be "contained" in the adjudication application which must itself be in the approved documentary form.[50] It is likely that those submissions would set out the basis upon which payment is claimed. It is unlikely that submissions of that kind would be in the nature of legal arguments.

[184] The word "submissions" is used in section 24(3)(c), which must be read together with sections 24(2), (4) and (5). Those provisions are to the following effect: The adjudication response must be in writing and may contain relevant submissions. Those submissions may include reasons for withholding payment.

[185] A submission about the reasons why payment has been withheld does not necessarily include legal arguments.

[186] The word "submissions" is not used in section 24B which deals with a claimant's "reply" to a respondent's "new reasons". Section 24B(2) states: "The claimant may give the adjudicator a reply to the new reasons (the ) within 15 business days after receiving a copy of the adjudication response". Although section 24B(2) does not use the expression "submissions in reply", it is implicit that the reply itself must be in writing because "a copy" of it must be "served" on the respondent and "given" to the adjudicator. Thus, BCIPA has used the word "reply" to mean written arguments or contentions made by the claimant in response to "new reasons". There is no sensible reason to suggest that the reply could not include arguments in the nature of legal arguments, even though the expression "submissions in reply" is not used.

[199] There has been no jurisdictional error. The application is dismissed.

[200] I shall hear the parties as to the form of order and costs.

[1] I note the use of the phrase "specific agreement" rather than "a specific agreement" in NCP's application.

[2] The documents attached to the email were listed in the following order in the covering email, and appeared in this same order in exhibit RA-15 to the affidavit of Rawai Ayache:

• 27 Sept 18 Benching INV00001013.pdf
• 27 Sept 18 Benching Payment Claim Schedule.xlsx
• 27 Sept 18 Float Hire INV00001014.pdf
• 27 Sept 2018 Float Hire Payment Claim Schedule.xlsx
• 21 Mar - 24 Apr 18 Dayworks.pdf
• 26 Apr 2018 - 25 May 2018 Dayworks.pdf
• 26 May - 20 June 2018 Dayworks.pdf
• 27 September 18 Wet Hire Inv 00001012.pdf
• 27 Sept 18 Wet Hire Payment Claim.xlsx
• Tabulated Summary of Records of Dayworks.xlsx

[3] See paragraphs 19 and 20, Trackson's adjudication response (443778).

[4] Paragraph 49, Adjudication Response (443778).

[5] That is, the statutory declaration of Mr Trackson dated 10 August 2018 and the statutory declaration of Mr Selke dated 26 July 2018.

[6] He referred to Trackson's submission that the adjudication process had been abused because NCP had "made a claim under the Act when the matter had previously been adjudicated". Mr Sarlos was of the view that while the matters raised in the adjudication before him had formed part of a previous application, the previous adjudicator found that he did not have jurisdiction and did not consider the merits of the contents of the claim nor the valuation of the claim. He did not reach a decision on the matter. Accordingly, Mr Sarlos found that he had jurisdiction to hear the adjudication application.

[7] Transcript 1 - 15. See also the respondent's written submissions at 13.

[8] [2009] NSWCA 69; (2009) 74 NSWLR 190.

[9] The definition of "reference date" in Schedule 2 Dictionary of BCIPA is to the same effect.

[10] [2005] NSWSC 339.

[11] Indeed, the claims were so described to accommodate the decision of the first adjudicator.

[12] [2009] QSC 32; [2009] 2 Qd R 171.

[13] [2012] NSWSC 805.

[14] [2015] QSC 211.

[15] [2003] NSWSC 266.

[16] Pyneboard v Trade Practices Commission (1982) 39 ALR 565 at 571.

[19] [2003] NSWSC 1140.

[20] [2008] FCA 1248.

[21] [2003] NSWSC 1140 at [76].

[22] [2008] FCA 1248 at [10].

[23] In its adjudication application relating to the float hire invoice, NCP made the same submissions about the need for it to characterise its invoices as relating to three separate claims as is set out above. Trackson's response to this aspect of the claim was as set out above.

[26] [2012] NSWSC 6.

[28] As an aside, I note his Honour's statement at [30] that he had no doubt that in an appropriate case "it is open to a claimant to submit one payment claim, for the purposes of the Act that comprises several invoices, even though each invoice is separately stated to be a payment claim for the purposes of the Act". His Honour referred to the decision in Alan Conolly and stated that he had no doubt that the finding in that case was "sound in law". His Honour's observations provide further support for my decision on the "one claim or three" issue.

[29] Alan Conolly at [14] - [15].

[30] McConnell Dowell Constructors (Aust) Pty Ltd v Heavy Plant Leasing Pty Ltd and others [2013] QSC 223.

[31] BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors (No 2) [2013] QSC 67.

[32] Queensland Building Services Authority Act 1991, part 4A (Building contracts other than domestic building contracts).

[33] Trackson also argued, in its original written submissions, that there had been a denial to it of natural justice at the conference. Counsel for Trackson indicated at the hearing that Trackson was not pursuing this complaint.

[34] Including Built Environs Pty Ltd v Tali Engineering Pty Ltd and Ors [2013] SASC 84 and Roadtek, Department of Main Roads v Philip Davenport and Ors [2006] QSC 047

[35] I note that Trackson's written submissions misstate section 25(4) - which does not say that a conference must be conducted in the absence of legal representatives. The section is reproduced above. However, I acknowledge the ambiguity of the phrase "not entitled to any legal representation".

[36] If legal representatives were not permitted at the conference, then they were only able to make written submissions because BCIPA provided for no other forum in which the legal representatives might make un-written (that is, spoken) submissions.

[37] Transcript 1 - 29 line 34 - 1 - 31, line 14.

[38] [2013] SASC 84 at [154].

[39] [2008] NSWSC 318.

[40] [2011] QSC 293 at [32].

[41] [2004] NSWSC 131 at [68].

[43] [2006] QSC 047.

[45] BCIPA - as in the Act itself - prescribes a regime for the registration of appropriately qualified persons as adjudicators.

[46] [2013] NSWSC 1879.

[47] $4,528.42 on a claim of $5,028,436.65.

[48] [2007] NSWCA 19 at 31.

[49] [2005] NSWCA 142 at 35.

[50] Or at least submissions in the form of a document - paper or electronic.

[51] Or at least in the form of a document - paper or electronic.

[52] See the discussion of submissions "duly made" in State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879.