Multiplex Constructions Pty Ltd v Luikens

The application of Brodyn 69 As noted by Hodgson JA at [47], there was an application to reargue the principles relating to the scope of the Court's supervisory jurisdiction set out in Brodyn Pty Ltd v Davenport [2004] NSWCA 394. Although it is apparent that leave should not be granted in this case, because the issue does not arise (see [49] above), Hodgson JA also expresses the view that, perhaps for other reasons, he is not persuaded that there are grounds to give leave to reargue Brodyn. That conclusion may be shown to be correct, but in my view there are aspects of the reasoning in Brodyn which may bear elucidation. 70 The principles which should be applied in considering such an application are set out in the judgment of Gleeson CJ in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99C-101C. Like the Full Court of the Federal Court, see eg Transurban City Link v Allan (1999) 95 FCR 553 at [26]-[31], this Court has accepted that it should follow an earlier decision unless satisfied that it was clearly wrong. The principles were reaffirmed in Roberts v White [1999] NSWCA 12 by five members of this Court: see Mason P at [42]-[45]. To the factors commonly addressed must be added a further and critical consideration, namely that the reasoning adopted in an earlier decision may be inconsistent with relevant High Court authority, particularly authority decided after the decision in question, or not referred to in that decision. Two factors which appear to weigh in favour of reconsideration in the present case are doubts about parts of the reasoning in Brodyn and the force of that reasoning in the light of the more recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. 71 Subject to an expression of doubt on one issue - see below at [79], Brodyn accepted that relief could be sought in the Court in relation to a failure by an adjudicator to exercise his or her statutory powers, with the result that there was no valid determination. The judgment in Brodyn at [54] posited the relevant question as "whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator's determination". So much may be conceded: that description reflects the concept of "jurisdictional error" under the general law as identified in Craig v South Australia (1995) 184 CLR 163 at 179 and in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 232 at [82]. The question in a particular case will be whether the adjudicator has, by acting in a particular way, exceeded or failed to exercise the authority or powers given to him or her by the Act. 72 The next step in the reasoning in Brodyn was to say, at [55], that all that was intended by the legislature was compliance with certain identified "basic requirements", which may not have been exhaustively stated in that case, and "a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and reasonably capable of reference to this power" - for which proposition R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 is cited - and that there be "no substantial denial of the measure of nature justice that the Act requires to be given". Each of these three elements could require further consideration. 73 First, although the statement of "basic requirements" is said not necessarily to be exhaustive, one of the factors which appears to have been excluded is compliance by the claimant with s 13(2) of the Act. According to that provision, a payment claim "must" do certain things. The basis for reading "must" as "must but need not" is not explained. It does not appear to accord with the approach adopted, albeit in relation to very different legislation, in SAAP. On the other hand, Brodyn may be read as saying that satisfaction of this condition depends on the opinion of the adjudicator: see Climatech [2005] NSWCA 229 at [43]-[48]. 74 Further, at [56] Brodyn cast doubt on the proposition that "compliance with the requirements of s 22(2)" is a precondition to a valid exercise of power. It is suggested that the matters identified in that provision could involve "extremely doubtful questions of fact or law". The judgment continues: "… it is sufficient to avoid invalidity if an adjudicator either does consider only the matters referred to in s 22(2), or bona fide addresses the requirements of s 22(2) as to what is to be considered."