[231] With respect, it seems to me that to state the approach of GRD in the above terms is to immediately reveal certain problems inherent in it.
[232] It is tantamount to asserting that any specific contractual provisions regulating how and when monies are to become payable under a construction contract are irrelevant to the question of when a party to that contract may raise what can properly be categorised as a payment claim, with a view to generating a payment dispute. i.e. the statute confers jurisdiction on an adjudicator to adjudicate a claim in any case in which a claim is made for payment of monies in relation to a construction contract, there being no requirement to even prima facie relate a payment claim to any specific contractual pre-requisites for such payment.
[233] On that argument such pre-requisites only become relevant merits considerations after the adjudicator actually embarks upon the process of adjudication.
[234] In my opinion such an approach has the practical effect of ignoring the existence and significance of the word "under" in the statutory definition of "payment claim".
[235] According to its normal English connotation, that word signifies "in accordance with", "governed or controlled or bound by", "on condition of" or "subject to", to list but a few of the many applicable dictionary expressions of meaning.
[236] Applying the concepts of such meanings to the relevant definition in s 4 of the statute, the clear intent of the definition is that, to constitute a payment claim, the claim must be shown to be a claim for monies in accordance with or subject to the conditions of a construction contract.
[237] In other words, it is not merely a claim at large in respect of works under a construction contract, it must be one that can properly be categorised as a genus of claim provided for by that contract. The existence of a mere causal nexus with a construction contract is plainly not what is in contemplation by the legislation.
[238] Moreover, as a matter of simple logic, a dispute can only arise under s 8 of the statute when a payment claim is properly said to be due to be paid under the relevant construction contract and has been disputed and/or not fully paid. That situation can only arise in relation to a payment claim that purports to be of a genus recognised and provided for by the contract. i.e. in the instant case, one that, on the face of it, complies with and answers the description in the mandatory provisions of clause 12.2 of the Subcontract.
[239] The statutory construction embraced by Mr Roper would ignore the real significance of the specific contractual terms and conditions negotiated by the parties, in the sense that a principal could be compulsorily drawn into an adjudication without the claimant having demonstrated any prima facie basis of potential liability to pay in accordance with the contract.
[240] Whilst the statute certainly sets out to cater for contractual relationships that are not prescriptive in detail and, in effect, provides an implied series of terms in absence of relevant contractual provisions, it also recognises the fact that many commercial contracts contain rigorous and highly prescriptive preconditions for the making of valid payment claims and also for payment.
[241] Indeed, as was pointed out on the hearing of the appeal, compliance with the implied statutory provisions to which s 19 directs its attention, where applicable, is expressed by that section to be mandatory. It would be strange if, despite such a requirement, compliance with contractual conditions pre-requisite to the raising of a valid payment claim were held to be non-essential to the proper characterisation of a valid payment claim, for the purposes of the statute.
[242] It seems to me that some of the hypothetical anomalies sought to be portrayed by Mr Roper are more apparent than real, at least absent some contract provision that has the effect of generating seeming anomalies. For example, a term that simply stipulated for claims to be lodged on the 25th of each month for payment by some prescribed subsequent date, could possibly be construed as meaning that any claim lodged after that date might not be paid until the following payment cycle, dependent on when the claim was lodged in relation to a prescribed payment deadline. It all depends on the precise wording of the claim prescription.
[243] If, in fact, a prescription is so strict in its terms that non-compliance might result in very serious disadvantage to a claimant, there is no real anomaly in such a scenario, because that result would be what the parties specifically contracted for. Objective compliance is not infrequently what commercial contracts are expressly designed to require and achieve.
[244] How that could fairly be said to undermine the relevant statutory scheme is impossible to perceive. In any event, an adjudicator would be bound to determine liability to make payments strictly in accordance with the contract. He or she would not be entitled, under the statute, simply to drive a coach and four through express contractual stipulations.
[245] It was argued on behalf of GRD that, given the express provisions of clause 12.2 of the Subcontract, due regard must be had to the actual course of dealings between and conduct of the parties in relation to the submission and payment of the first seven of the 13 invoices. I understood counsel to suggest that this could be relied upon as evidence that the parties themselves did not regard compliance with clause 12.2(d) as mandatory and that there could well have been some form of implied variation or waiver by conduct.
[246] In promoting such a suggestion, GRD sought to draw some comfort from what fell from Mason P (as he then was) in Clarence Street Pty Ltd v Isis Projects Pty Ltd[112]. However, that was a decision based on the particular facts and terms of the specific contract under consideration in that case. It is scarcely decisive of the present problem.
[247] A variety of possible legal situations might well arise where it is established that courses of conduct inconsistent with contract provisions have occurred. No doubt, in some cases, considerations of implied variations of contract, waiver or even estoppel might loom large as possibilities bearing on such a situation.
[248] However, in the instant case, such an issue was never ventilated before the adjudicator or, for that matter, the learned trial Judge. Furthermore, the factual scenario in this case does not disclose even a consistent course of conduct over a substantial period of time. The last six invoices were, in fact, not accepted and paid by GRD. There is, in my view, no substance in this belated contention.
[249] At the end of the day the question to be posed and answered is that expressed by Hodgson JA in Brodyn Pty Ltd v Davenport[113], namely, whether a requirement being considered was intended by the legislature to be an essential precondition for the existence of an adjudicator's determination.[114]
[250] The issue to be addressed in this case in considering such a question was whether objective non-compliance with the contract stipulations, pre-requisite to the raising of valid payment claims in respect of the six unpaid invoices, had the practical effect that no relevant payment claims, within the meaning of the statute, had been presented to GRD prior to receipt of the SI and, thus, no payment disputes had previously been generated in respect of them. I consider that the inevitable conclusion must be that this was the situation.
[251] To borrow an expression employed by Mr Wyvill SC, the invoices simply did not pass the requisite threshold test to constitute payment claims of the type envisaged by the statute, because, being non-compliant with clause 12.2(d) of the Subcontract, they were not, relevantly, payment claims under that construction contract[115], as envisaged by the statute. The "jurisdictional fact"[116] upon the presence of which the jurisdiction of the adjudicator was conditioned, was therefore clearly demonstrated in relation to the payment dispute arising from the delivery of the SI and the non-payment of the monies claimed in it.
[252] The essential thrust of Mr Wyvill's submissions in that regard, as I have earlier outlined them, is compelling. They should be upheld.
[253] As to this general issue I respectfully agree with the approach expressed by Kelly J in paragraphs [147] to [153] of her reasons in relation to this appeal.
[254] I further agree in general with her comments in relation to the points canvassed in the written supplementary submissions lodged on behalf of the parties, which essentially address conclusions expressed by Southwood J in his reasons in these proceedings.
[255] Not only do I respectfully concur with the reasoning of Kelly J as to this aspect, but it is also my firm view that, as the core thrust of the point in question was not an issue debated before Mildren J, was certainly not the subject of argument on the hearing of this appeal and did not find expression in any notice of contention under the rules, it is simply not an issue that the Court may properly consider within the scope of the present appeal. The parties chose and identified the relevant issues in contention in the relevant proceedings and it is, in my opinion, inappropriate for the Full Court to seek to go outside of those issues.
[256] I would allow the appeal, set aside the orders appealed against and restore the determination made by the adjudicator.
[257] In view of that conclusion, it becomes unnecessary to dilate at length on the question of whether the statute contemplates or permits, for its purposes, the lodgement of repeat payment claims, so as to re-trigger the relevant 90 day limit.
[258] It was argued on behalf of GRD that the issue as to whether the subject contract, as opposed to the statute, provides for or permits the resubmission of former payment claims is not to the point. Counsel contended that the critical issue is whether the statute permits the re-triggering of the 90 day limit in that manner, by giving rise to a valid payment dispute in relation to earlier payment claims. Reliance was placed on what fell from Southwood J in Mac-Attack[117].
[259] In the last mentioned case all of the members of the Court were of the opinion that the statute made no provision for and thus did not directly authorise, the resubmission or re-formulation of payment claims.
[260] Whilst I respectfully accept that the manner in which s 8 sets out to define what constitutes a payment dispute does not make any provision for the re-triggering, by a repeat payment claim, of a payment dispute in respect of a payment claim that had been made earlier, as to which the 90 day limit has expired, nevertheless, it does not prohibit such a practical situation arising if such a situation is expressly stipulated for by the relevant construction contract.
[261] I see no reason why such a contract could not authorise the inclusion in a progress payment claim of earlier unpaid amounts, so as to generate a new payment claim, attracting a fresh 90 day period. Such a situation did not arise in Mac-Attack.
[262] I took Mr Roper to concede that the absence of a statutory provision specifically authorising or contemplating repeat claims would not render void a payment claim that incorporated amounts that were the subject of earlier payment claims. An application for adjudication under the statute could be made in respect of so much of that claim as was not the subject of any earlier claim.
[263] In the instant case, the SI purported to be a payment claim both for the amounts unpaid in relation to the last six invoices and also for a balance said to be due and repayable from the retention fund.
[264] It is to be noted that s 8(b) of the statute expressly provides that, inter alia, a payment dispute arises when an amount retained by a party under a contract is due to be paid under that contract and that amount has not been paid.
[265] It follows that any balance of retention monies then due to be paid under the subject Subcontract and remaining unpaid was, on any view, properly included in the SI when it was filed, notwithstanding that the SI may also have contained repeat payment claims in respect of monies that were the subject of an earlier payment dispute.