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[2011] QCA 22
Court of Appeal (Qld)
2011-02-18
Margaret McMurdo P, Chesterman and White, JJA, Separate reasons for judgment of each member of the Court, each
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
Footnotes
1 [2008] 2 Qd R 495, 515 [71], [72].
2 [2008] QCA 83, [51].
3 See s 91 Justice and Other Legislation Amendment Act 2007 (Act No 37 of 2007).
4 Above.
5 (2010) 239 CLR 531, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, 581 [99]-[100].
6 (1995) 184 CLR 163, 174-175.
7 (2009) 26 VR 172, 181-194, [35]-[81].
8 [2010] QSC 156, [11], [12].
9 (2010) 272 ALR 750, Spigelman CJ, 757 [29], [30], 762 [58]; Basten JA, 773 [108]; McDougall J 784-785 [179]-[181], 804 [285]-[287].
10 (2004) 61 NSWLR 421.
11 Described as “Inspired”, “Tranquil”, “Abundant”, “Desire”, “Prosperous” and “Energy”.
12 The percentage varied in Northbuild’s material before the arbitrator from 87 per cent to 89 per cent to 90 per cent.
13 Averaged across the range of works at different stages of completion.
14 Payments Act s 17(2)(c).
15 (2004) 61 NSWLR 421.
16 (2010) 239 CLR 531.
17 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190.
18 Payments Act, s 99.
19 Payments Act, s 100.
20 Payments Act, s 3.
21 Payments Act, Schedule 2 Dictionary.
22 Payments Act, s 13 with further particulars in s 14.
23 Payments Act, s 17.
24 Payments Act, s 18.
25 Payments Act, s 18(4)-(5).
26 Payments Act, s 19.
27 Payments Act, s 19(4)(a).
28 Payments Act, s 19(4)(b).
29 Payments Act, s 20(1)-(2).
30 Payments Act, s 20(4).
31 Payments Act, s 21.
32 Payments Act, s 21(3).
33 Payments Act, s 21(3)(f).
34 Payments Act, s 21(5).
35 Payments Act, s 21(6).
36 Payments Act, s 24.
37 Payments Act, s 24(4).
38 Payments Act, s 25.
39 Payments Act, s 25(4).
40 Payments Act, s 26(2).
41 Musico v Davenport [2003] NSWSC 977; Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140; Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWSC 394; Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228; John Holland Pty Ltd v Roads and Traffic Authority of NSW [2007] NSWCA 19; Hitachi Limited v O'Donnell Griffin Pty Ltd [2008] QSC 135; Walton Construction (Qld) Pty Ltd v Salce [2008] QSC 235; J Hutchinson Pty Ltd v Galform Pty Ltd [2008] QSC 205, to name only a few.
42 Building and Construction Industry Security of Payment Act 1999 (NSW).
43 Payments Act, s 26(3)(b).
44 Payments Act, s 29.
45 Payments Act, s 30(1).
46 Payments Act, s 31(4)(a) and (b). It is s 31(4)(a)(iii) which is said to be “privative” in nature.
47 Part 4 Div 6.
48 Payments Act, s 107.
49 Justice and Other Legislation Amendment Act 2007 (Qld).
50 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; State of Queensland v Epoca Constructions Pty Ltd [2006] QSC 324 per Philippides J at [23]. See the discussion by Vickery J in Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No. 2) [2009] VSC 426.
51 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394, with whom Mason P and Giles JA agreed.
52 Musico v Davenport [2003] NSWSC 977.
53 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 at 441; [2004] NSWSC 394 at [52].
54 Ibid at 441 [53].
55 Ibid at 441 [54].
56 (1998) 194 CLR 355 at 390-1.
57 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 at 442; [2004] NSWSC 394 at [55].
58 [2010] NSWCA 190.
59 (1995) 184 CLR 163; [1995] HCA 58.
60 (2010) 239 CLR 531; [2010] HCA 1.
61 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [29] per Spigelman CJ.
62 Ibid.
63 Ibid at [32].
64 [2008] 2 Qd R 495; [2008] QCA 213.
65 Ibid at [75].
66 [2008] QCA 83.
67 [2008] QSC 205. In Uniting Church in Australia Property Trust (Qld) v Davenport [2009] QSC 134, Daubney J preferred the approach of Chesterman J.
68 [2009] QSC 220.
69 Justice and Other Legislation Amendment Bill 2007 Explanatory Notes, p 22: “The amendment [of the Judicial Review Act 1991] will fully exempt the decisions of adjudicators made under the Building and Construction Industry Payments Act 2004 from review under the Judicial Review Act 1991. This amendment is consistent with the objective of the Building and Construction Industry Payments Act 2004 to create a dispute resolution process whereby adjudicators can quickly resolve payment disputes between parties to a construction contract on an interim basis.”
70 Queensland Building Services Authority Act 1991 (Qld), s 97(2).
71 [2006] QCA 538.
72 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1.
73 [2010] QSC 279.
74 Ibid at [13].
75 O 81.
76 UCPR r 564.
77 (2010) 239 CLR 531; [2010] HCA 1.
78 (1995) 184 CLR 163; [1995] HCA 58.
79 Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181 at 197 per Griffith CJ.
80 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57.
81 The expression “good faith” in s 107 of the Payments Act in a different Part of the Act throws little light on its meaning although Hodgson JA in John Holland Pty Limited v Roads & Traffic Authority of New South Wales & Ors [2007] NSWCA 19 at [60] and [61] suggested that it would be rare that a decision could be invalidated for lack of bona fides by conduct that would not also lose the immunity given by the equivalent of s 107. Those words are not actually in Pt 3 Div 2 when referring to an adjudicator’s duties but imposed as part of the traditional administrative law armory for limiting the operation of privative clauses, see discussion in Aronson, Dyer & Groves, Judicial Review of Administrative Action 4th ed, Lawbook Co, 2009 in Chapter 17.
82 (1945) 70 CLR 598; [1945] HCA 53.
83 Ibid at 615 (see also at 616-7), Basten JA doubted its applicability in circumstances where there is no privative provision, in Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385. In Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 Brereton J, at first instance, at [68], noted this comment but suggested that Hodgson JA was saying no more than that there were certain minimum requirements of validity which could not be ousted by the scheme of the Act, which included, at least, those referred to by Dixon J in Hickman. Basten JA did not suggest that an adjudicator is not required to carry out his task in good faith. In The King v Murray*; Ex parte Proctor* (1949) 77 CLR 387; [1949] HCA 10 Dixon J, again, in respect to a privative provision, spoke of an honest attempt to deal with the subject matter of the power, at 400.
84 As by Brereton J in Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 at first instance.
85 As in Queensland Bulk Water Supply Authority v McDonald Keen Group Pty Ltd (in liq) [2010] QCA 7.
86 Holmwood Holdings [2005] NSWSC 1129 at [110].
87 Ibid at [117].
88 (2002) 194 ALR 749; [2002] FCAFC 361.
89 [2002] FCAFC 431.
90 Ibid at [8]-[10].
91 [2003] FCAFC 142.
92 Ibid at [21].
93 Administrative Law 9th ed Oxford University Press, Oxford, 2004 at 416.
94 Judicial Review of Administrative Discretion 4th ed, Lawbook Co, 2009 at 323.
95 [2010] QCA 7.
96 Ibid at [51].
97 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361; Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431.
98 Migration Act 1958 (Cth), s 474(1).
99 For example, Lord Sumner’s speech in Roberts v Hopgood [1925] AC 578 at 603.
100 R v Commissioner of Taxation (WA); Ex Parte Briggs (1986) 12 FCR 301.
101 Outline of Submissions for the Appellant at [26].
102 [2010] 1 Qd R 302; [2009] QSC 205.
103 Ibid at [66]-[67].
104 [2009] 1 Qd R 390; [2008] QCA 397 at [39]-[40].
105 [2008] QCA 83 at [51].
106 (2010) 240 CLR 611; [2010] HCA 16.
107 Ibid at [129]-[130] per Crennan and Bell JJ, where the decision-maker had to be satisfied in the context of a privative provision.
108 AR 298.
109 AR 298.
110 (2004) 61 NSWLR 421; [2004] NSWCA 394 at [51]-[57].
111 Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2010] QSC 95 at [11].
112 Ibid at [12].
113 [2005] NSWSC 1152.
114 [2007] NSWCA 19.
115 [2005] NSWSC 1152 at [20].
116 [2007] NSWCA 19 at [55].
117 He agreed generally with Hodgson JA, with whom Beasley JA agreed.
118 (2005) 63 NSWLR 385; [2005] NSWCA 228 at [52].
119 AR 304 [50].
120 The adjudicator had considered them in his reasons in a slightly different order but it is convenient to follow the order of the primary Judge.
121 Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2010] QSC 95 at [31].
122 AR 317 at [122].
123 AR 317 at [123].
124 AR 861 at [33].
125 AR 302 at [32].
126 Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd & Ors [2010] QSC 95 at [39].
127 AR 305 at [60].
128 AR 305 at [62].
129 AR 305-6 at [62].
130 AR 306 at [66].
131 AR 307 at [71].
132 AR 307 at [73].
133 Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd & Ors [2010] QSC 95 at [45].
[2008] 2 Qd R 495, 515 [71], [72]. ↩
[2008] QCA 83, [51]. ↩
See s 91 Justice and Other Legislation Amendment Act 2007 (Act No 37 of 2007). ↩
Above. ↩
(2010) 239 CLR 531, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, 581 [99]-[100]. ↩
(1995) 184 CLR 163, 174-175. ↩
(2009) 26 VR 172, 181-194, [35]-[81]. ↩
[2010] QSC 156, [11], [12]. ↩
(2010) 272 ALR 750, Spigelman CJ, 757 [29], [30], 762 [58]; Basten JA, 773 [108]; McDougall J 784-785 [179]-[181], 804 [285]-[287]. ↩
(2004) 61 NSWLR 421. ↩
Described as “Inspired”, “Tranquil”, “Abundant”, “Desire”, “Prosperous” and “Energy”. ↩
The percentage varied in Northbuild’s material before the arbitrator from 87 per cent to 89 per cent to 90 per cent. ↩
Averaged across the range of works at different stages of completion. ↩
Northbuild Construction P/L
Central Interior Linings P/L & Ors [2011] QCA 22
(2004) 61 NSWLR 421
(2010) 272 ALR 750
(1904) 1 CLR 181
(1995) 184 CLR 163
(2010) 239 CLR 531
(2010) 240 CLR 611
(1994) 181 CLR 404
(1998) 194 CLR 355
(1945) 70 CLR 598
(2002) 194 ALR 749
(2009) 26 VR 172
(2005) 63 NSWLR 385
(2000) 204 CLR 82
(1949) 77 CLR 387
(1986) 12 FCR 301
Payments Act s 17(2)(c). ↩
(2004) 61 NSWLR 421. ↩
(2010) 239 CLR 531. ↩
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190. ↩
Payments Act, s 99. ↩
Payments Act, s 100. ↩
Payments Act, s 3. ↩
Payments Act, Schedule 2 Dictionary. ↩
Payments Act, s 13 with further particulars in s 14. ↩
Payments Act, s 17. ↩
Payments Act, s 18. ↩
Payments Act, s 18(4)-(5). ↩
Payments Act, s 19. ↩
Payments Act, s 19(4)(a). ↩
Payments Act, s 19(4)(b). ↩
Payments Act, s 20(1)-(2). ↩
Payments Act, s 20(4). ↩
Payments Act, s 21. ↩
Payments Act, s 21(3). ↩
Payments Act, s 21(3)(f). ↩
Payments Act, s 21(5). ↩
Payments Act, s 21(6). ↩
Payments Act, s 24. ↩
Payments Act, s 24(4). ↩
Payments Act, s 25. ↩
Payments Act, s 25(4). ↩
Payments Act, s 26(2). ↩
Musico v Davenport [2003] NSWSC 977; Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140; Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWSC 394; Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228; John Holland Pty Ltd v Roads and Traffic Authority of NSW [2007] NSWCA 19; Hitachi Limited v O'Donnell Griffin Pty Ltd [2008] QSC 135; Walton Construction (Qld) Pty Ltd v Salce [2008] QSC 235; J Hutchinson Pty Ltd v Galform Pty Ltd [2008] QSC 205, to name only a few. ↩
Building and Construction Industry Security of Payment Act 1999 (NSW). ↩
Payments Act, s 26(3)(b). ↩
Payments Act, s 29. ↩
Payments Act, s 30(1). ↩
Payments Act, s 31(4)(a) and (b). It is s 31(4)(a)(iii) which is said to be “privative” in nature. ↩
Part 4 Div 6. ↩
Payments Act, s 107. ↩
Justice and Other Legislation Amendment Act 2007 (Qld). ↩
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; State of Queensland v Epoca Constructions Pty Ltd [2006] QSC 324 per Philippides J at [23]. See the discussion by Vickery J in Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No. 2) [2009] VSC 426. ↩
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394, with whom Mason P and Giles JA agreed. ↩
Musico v Davenport [2003] NSWSC 977. ↩
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 at 441; [2004] NSWSC 394 at [52]. ↩
Ibid at 441 [53]. ↩
Ibid at 441 [54]. ↩
(1998) 194 CLR 355 at 390-1. ↩
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 at 442; [2004] NSWSC 394 at [55]. ↩
[2010] NSWCA 190. ↩
(1995) 184 CLR 163; [1995] HCA 58. ↩
(2010) 239 CLR 531; [2010] HCA 1. ↩
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [29] per Spigelman CJ. ↩
Ibid. ↩
Ibid at [32]. ↩
[2008] 2 Qd R 495; [2008] QCA 213. ↩
Ibid at [75]. ↩
[2008] QCA 83. ↩
[2008] QSC 205. In Uniting Church in Australia Property Trust (Qld) v Davenport [2009] QSC 134, Daubney J preferred the approach of Chesterman J. ↩
[2009] QSC 220. ↩
Justice and Other Legislation Amendment Bill 2007 Explanatory Notes, p 22: “The amendment [of the Judicial Review Act 1991] will fully exempt the decisions of adjudicators made under the Building and Construction Industry Payments Act 2004 from review under the Judicial Review Act 1991. This amendment is consistent with the objective of the Building and Construction Industry Payments Act 2004 to create a dispute resolution process whereby adjudicators can quickly resolve payment disputes between parties to a construction contract on an interim basis.” ↩
Queensland Building Services Authority Act 1991 (Qld), s 97(2). ↩
[2006] QCA 538. ↩
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1. ↩
[2010] QSC 279. ↩
Ibid at [13]. ↩
O 81. ↩
UCPR r 564. ↩
(2010) 239 CLR 531; [2010] HCA 1. ↩
(1995) 184 CLR 163; [1995] HCA 58. ↩
Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181 at 197 per Griffith CJ. ↩
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57. ↩
The expression “good faith” in s 107 of the Payments Act in a different Part of the Act throws little light on its meaning although Hodgson JA in John Holland Pty Limited v Roads & Traffic Authority of New South Wales & Ors [2007] NSWCA 19 at [60] and [61] suggested that it would be rare that a decision could be invalidated for lack of bona fides by conduct that would not also lose the immunity given by the equivalent of s 107. Those words are not actually in Pt 3 Div 2 when referring to an adjudicator’s duties but imposed as part of the traditional administrative law armory for limiting the operation of privative clauses, see discussion in Aronson, Dyer & Groves, Judicial Review of Administrative Action 4th ed, Lawbook Co, 2009 in Chapter 17. ↩
(1945) 70 CLR 598; [1945] HCA 53. ↩
Ibid at 615 (see also at 616-7), Basten JA doubted its applicability in circumstances where there is no privative provision, in Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385. In Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 Brereton J, at first instance, at [68], noted this comment but suggested that Hodgson JA was saying no more than that there were certain minimum requirements of validity which could not be ousted by the scheme of the Act, which included, at least, those referred to by Dixon J in Hickman. Basten JA did not suggest that an adjudicator is not required to carry out his task in good faith. In The King v Murray*; Ex parte Proctor* (1949) 77 CLR 387; [1949] HCA 10 Dixon J, again, in respect to a privative provision, spoke of an honest attempt to deal with the subject matter of the power, at 400. ↩
As by Brereton J in Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 at first instance. ↩
As in Queensland Bulk Water Supply Authority v McDonald Keen Group Pty Ltd (in liq) [2010] QCA 7. ↩
Holmwood Holdings [2005] NSWSC 1129 at [110]. ↩
Ibid at [117]. ↩
(2002) 194 ALR 749; [2002] FCAFC 361. ↩
[2002] FCAFC 431. ↩
Ibid at [8]-[10]. ↩
[2003] FCAFC 142. ↩
Ibid at [21]. ↩
Administrative Law 9th ed Oxford University Press, Oxford, 2004 at 416. ↩
Judicial Review of Administrative Discretion 4th ed, Lawbook Co, 2009 at 323. ↩
[2010] QCA 7. ↩
Ibid at [51]. ↩
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361; Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431. ↩
Migration Act 1958 (Cth), s 474(1). ↩
For example, Lord Sumner’s speech in Roberts v Hopgood [1925] AC 578 at 603. ↩
R v Commissioner of Taxation (WA); Ex Parte Briggs (1986) 12 FCR 301. ↩
Outline of Submissions for the Appellant at [26]. ↩
[2010] 1 Qd R 302; [2009] QSC 205. ↩
Ibid at [66]-[67]. ↩
[2009] 1 Qd R 390; [2008] QCA 397 at [39]-[40]. ↩
[2008] QCA 83 at [51]. ↩
(2010) 240 CLR 611; [2010] HCA 16. ↩
Ibid at [129]-[130] per Crennan and Bell JJ, where the decision-maker had to be satisfied in the context of a privative provision. ↩
AR 298. ↩
AR 298. ↩
(2004) 61 NSWLR 421; [2004] NSWCA 394 at [51]-[57]. ↩
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2010] QSC 95 at [11]. ↩
Ibid at [12]. ↩
[2005] NSWSC 1152. ↩
[2007] NSWCA 19. ↩
[2005] NSWSC 1152 at [20]. ↩
[2007] NSWCA 19 at [55]. ↩
He agreed generally with Hodgson JA, with whom Beasley JA agreed. ↩
(2005) 63 NSWLR 385; [2005] NSWCA 228 at [52]. ↩
AR 304 [50]. ↩
The adjudicator had considered them in his reasons in a slightly different order but it is convenient to follow the order of the primary Judge. ↩
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2010] QSC 95 at [31]. ↩
AR 317 at [122]. ↩
AR 317 at [123]. ↩
AR 861 at [33]. ↩
AR 302 at [32]. ↩
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd & Ors [2010] QSC 95 at [39]. ↩
AR 305 at [60]. ↩
AR 305 at [62]. ↩
AR 305-6 at [62]. ↩
AR 306 at [66]. ↩
AR 307 at [71]. ↩
AR 307 at [73]. ↩
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd & Ors [2010] QSC 95 at [45]. ↩