90 For the above reasons, I am not satisfied that Multiplex has made out any ground for the quashing of the Determination under s.69(1) of the Supreme Court Act save in respect of Item 9. As I have found in paragraphs 79-81, the error into which Mr Luikens fell led him to exclude from his consideration Multiplex's evidence and submissions in respect of Item 9, which was matter which he was required to take into account by s.22(2)(d) of the Act. The difference between the parties as to what Multiplex owes in respect of Item 9 is $99,609. That is not a trivial sum in the context of a total of $529,034.59 (excluding GST) which Mr Luikens determined was the adjudicated amount for the purpose of s.22(1)(a) of the Act. It seems to me, therefore, that the Determination is flawed by reason of a jurisdictional error. Remedies by way of judicial review are discretionary. The question now arises whether, in the exercise of the Court's discretion, the Determination should be quashed.
91 The first point to note is that although the jurisdictional error in this case has affected only one disputed claim amongst the sixteen which Mr Luikens considered in his adjudication, the Court cannot quash just the decision which affects Item 9, leaving the rest of the Determination intact. That is because the adjudication process is required by s.22(1) of the Act to produce only three findings: the adjudicated amount (if any), the date upon which that amount becomes payable and the rate of interest payable. Only these findings are reflected in the adjudication certificate which is issued under s.24(3) of the Act and filed as a judgment under s.25(1). The adjudicator has no power to correct the adjudication amount where it is shown to have been produced by error of law, whether or not jurisdictional. There is power to correct a determination under s.22(5) only in accordance with what might loosely be called the "slip rule". None of the circumstances provided in s.22(5) is applicable in the present case.
92 It seems to me that because the Act requires a determination to produce only one amount for payment pursuant to a payment claim served under s.13(1), despite the fact that the payment claim might have comprised numerous claims for separate and distinct items of work, and because the Act does not provide for variation of the adjudicated amount, or the judgment debt, if the adjudicator's decision as to any component part of the adjudicated amount is shown to be liable to be set aside on judicial review, the consequence is that, subject to other discretionary considerations, the whole of the determination must be quashed if jurisdictional error infects any part of the process whereby the adjudication amount has been produced. This is, no doubt, a highly inconvenient result. However, I do not see any means of avoiding it, as the Act presently stands.
93 I turn now to the discretionary considerations as to whether relief under s.69(1) Supreme Court Act should be granted.
94 It is well established that relief in the nature of the prerogative writs may be withheld in the Court's discretion if there is another "equally effective and convenient remedy": see e.g. R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720, at 728 per Lord Widgery CJ; Ex parte Waldron [1986] QB 824, at 852 per Glidewell LJ; Boral Gas (NSW) Pty Ltd v. Magill (1993) 32 NSWLR 501, at 508ff per Kirby P. In the case of an adjudication under the Act, it might be said that the legislature has provided within the Act itself the means whereby errors of law, jurisdictional or non-jurisdictional, may be corrected. The effect of s.32 is to render a determination and a judgment founded upon it merely of temporary duration until all matters in dispute may be determined finally by litigation or other dispute resolution procedures. It might be said, therefore, that errors made in the adjudication process should await correction and restitution by the process envisaged by s.32 and not by invocation of the judicial review process under s.69 Supreme Court Act .
95 I do not think that there can be a hard and fast rule upon which the Court acts in exercising the discretion whether to grant relief by way of certiorari in respect of an adjudication under the Act which is shown to be flawed by jurisdictional error. The authorities show that the Courts take a pragmatic approach to the question whether there is another equally effective and convenient remedy besides the grant of prerogative relief, and that the discretion is very much grounded upon the particular facts of the case. In Ex parte Waldron , Glidewell LJ said at 852:
"Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available in the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by way of judicial review when an alternative remedy is available."
96 When an adjudication under the Act is shown to have resulted from jurisdictional error, a weighty circumstance in the exercise of the discretion whether to grant relief under s.69(1) Supreme Court Act is the fact that the scheme of the Act requires that a respondent "pay now, argue later" : s.25. In some cases adherence to this scheme by refusal of prerogative relief on discretionary grounds may produce no great hardship to the respondent; in other cases, it may. For example, where the amount in dispute is fairly small and the whole dispute may be speedily and cheaply resolved in the Local Court, a respondent in an adjudication may be shown to have a more effective and convenient remedy for redress of an erroneous determination in proceedings conducted in the Local Court rather than by debating esoteric questions of administrative law at great expense in the Supreme Court in an application for review under s.69(1) Supreme Court Act . Indeed, in such a case the Supreme Court may be able to come to the conclusion at an early stage of an application for relief under s.69 that the proceedings are doomed to failure because relief, even if otherwise available, would be withheld on discretionary grounds so that it could simply dismiss the application, or stay it on terms, under Pt 13 r5(1). In the circumstances postulated, such a result would be in accordance with the general policy of the Act. In different circumstances, the interests of justice may require the policy of the Act to give way.
97 In the present case, the amount involved in Item 9 is nearly $100,000. There is no evidence that the whole of the dispute between Multiplex and Lahey is in the process of litigation or resolution by arbitration or mediation. There is no evidence as to how long it would take before the jurisdictional error which produced rejection of Multiplex's evidence and submissions as to Item 9 could be remedied and relief, if appropriate, given in litigation conducted on a final basis.
98 Prima facie, it seems to me that jurisdictional error in the adjudication process which produces an obligation on the part of Multiplex to make a substantial payment should be corrected by the grant of relief under s.69 unless an equally effective and convenient remedy is shown. On the evidence before the Court, no such remedy has been shown to be available so that the Determination should be quashed.
Consequences of quashing a determination