35 Although the parties did not specifically take me to the other variation claims it is apparent, if one reads Mr Sullivan's Determination, that he found in each case that there was a direction from the Superintendent and that, in most cases, he stated that the direction was in writing (or that it was given by letter, or some such equivalent phrase). Where Mr Sullivan did not specifically identify the method by which the direction was given, I think, from contextual indications, that it is more likely than not that the relevant direction was given in writing. If it were, then no question arises. But even if it were not, then, as I have said, I do not think that jurisdictional error follows.
36 However, I think that there is a substantial difficulty arising from the way that TransGrid chose to put its submissions on this point. Its written submissions dealt with the principle of the errors alleged. They did not condescend to explain the application of those principles in the particular case, except through a five page schedule annexed to the submissions that was headed:
"DOYLES SCHEDULE 1A ADJUDICATION CHALLENGE".
37 That schedule identified a number of matters, including the paragraphs of the Determination that were challenged, and the amounts that were in issue. It then set out what was called "VITIATING CONDUCT" which stated, in what appear to be a series of alternative and descending sub headings, in a summary way, what the alleged error was. For example, of particular relevance for present purposes, there were three sub headings:
"Purported to value variations excluded by Clause 42.1(a) and thus which could not be 'due to the Contractor' under Clause 42.3."
"Purported to value variations excluded by Clause 42.1(b) and thus which could not be 'due to the Contractor' under Clause 42.3."
"Failed to value variations in accordance with Clause 40.5."
38 This third sub heading had its own three sub headings:
"Failed to arrive at a reasonable value using reasonable rates and prices: cf Clause 40.5(c)."
"Accepted claimant's valuation in absence of alternative from respondent and did not himself calculate the correct value."
"Failed to consider what costs were included in the contract price and what costs were not included."
39 Under these headings and sub headings were set out paragraph numbers. As I understand it, one could (for example) take the sub heading relating to clause 42.1(a) and see that it was intended to relate to the approach indicated by Mr Sullivan in paragraph [67] of his Determination. However, in only one case - PVO 011A - was the error cross-referenced to Mr Sullivan's particular findings.
40 In other words, with the lone exception of PVO 011A, the submissions gave me absolutely no indication as to the particular findings by Mr Sullivan, as opposed to his general statement of approach, that are said to be affected by the alleged error. Exactly the same applies to the other particular errors that are alleged under this rubric.
41 It is completely unhelpful for a plaintiff in the position of TransGrid to approach the Court, alleging jurisdictional error, but not to show how the error of principle that is alleged in fact affects the particular determinations that have been made. I do not think that it is appropriate for the Court to have to do what, by implication, TransGrid says it should do, and seek to find out for itself, by reading the whole of what was (necessarily and certainly not inappropriately) a lengthy Determination, whether the general error is demonstrated in any particular respect.
42 The second error that is alleged under this heading (see para [22] above) is the failure to value variations in accordance with clause 40.5. In this case, at least, the schedule to which I have just referred does indicate the paragraphs to which the criticism applies. However, except through the three general headings that I have set out in para [37] above, it gives no clue as to how the error is said to be demonstrated in those paragraphs.
43 In oral submissions, Mr Corsaro clarified the alleged error in some respects. One complaint that is made is that Mr Sullivan did not himself make a finding of value, but instead simply adopted the figure submitted by Walter. (I should make it quite plain that, in a number of cases, Mr Sullivan did not accept Walter's claim: it will be seen that he allowed, overall, approximately 40 percent of the total claimed.)
44 It is apparent from reading the Determination that TransGrid, in most if not all cases, took the approach of advancing criticisms of the amount claimed by Walter but not itself propounding any alternative valuation. It is apparent that the approach taken by Mr Sullivan was to consider the validity of the challenges and, if he did not think that the challenges had been substantiated, to allow the amount claimed (of course, where he thought that it was properly to be claimed).
45 I see no reason why Mr Sullivan erred, let alone erred in a jurisdictional sense, in adopting the approach that he did. He had a considerable volume of material before him, that was capable of substantiating, in appropriate detail, the various claims that were made. He was entitled to think that TransGrid would have taken any proper and available objection to the claims that were made. (Indeed, it is difficult to see how he could have had any other understanding.) On that basis, I see no reason why it was not open to Mr Sullivan, applying his own expertise to the material before him, to come to the view that if the various challenges were not made out then, in effect by necessity, what was left was a reasonable, or at least a justifiable, valuation of the work. Nor do I see any reason for concluding, specifically, that in those circumstances it was not open to Mr Sullivan to conclude, in terms of clause 40.5(c), that the rates or prices that Walter used in pricing the variations were reasonable.
Is the Superintendent's decision binding on the Adjudicator?
46 TransGrid submitted that s 9(a) of the Act had not only the effect referred to in para [19] above, but also meant that the adjudicator was "bound to apply the Superintendent's Determination". It acknowledged, and embraced, the proposition that its approach required an adjudicator "to apply" or "rubber stamp" the Superintendent's Certificate.
47 I considered this argument in Abacus at paras [30] to [40]. I held that an adjudicator was entitled to exercise his or her own judgment, and was not bound by the determination of the Superintendent or someone occupying the position of Superintendent.
48 TransGrid submitted that my decision in Abacus was wrong on this point. I have reconsidered the issue, paying particular attention to the submissions put by TransGrid (which included submissions that were not advanced in Abacus).
49 One of the matters that I referred to in Abacus, as supporting the view to which I came on this point, was that if the submission were correct, then an adjudicator would be bound by a Superintendent's Certificate issued in bad faith, or as the result of fraudulent collusion.
50 In answer to this proposition, TransGrid pointed to clause 23 of the contract which, clearly enough, indicated that the Superintendent was to exercise, in a reasonable manner, the powers conferred on him by the contract. Further, TransGrid relied on the decision of the Full Court of the Supreme Court of Western Australia in WMC Resources v Leighton Contractors Pty Ltd [1999] WASCA 10. That decision confirmed, among other things, that a party performing a discretionary valuation function under a contract was required, in performing that function, to act reasonably and in good faith. Thus, it was said, the example that I gave in Abacus would not arise, because a certificate issued in bad faith or as the result of fraudulent collusion would not be a certificate at all for the purposes of the contract.
51 The argument may be acknowledged. However, it does not answer the proposition that, where a certificate had been issued in good faith and as the result of reasonable endeavours, but was flatly wrong, the adjudicator would be bound.
52 I do not think that the legislature intended that the scheme that it sought to construct should be dependent upon an assumption that a person is bound (either as a matter of express stipulation or implication) to act reasonably and in good faith. Nor do I think that it intended that the process of adjudication for which it provided could be set at nought by an honest but manifestly wrong exercise of a contractual power of certification.
53 Finally, if the legislature intended the decision of the Superintendent (or someone in the Superintendent's contractual position) to be determinative in any case to which sections 9(a) and 10(1a) applied, there would be no utility whatsoever in putting in place the mechanism for adjudication. That is because, by hypothesis, the claimant would have a contractual right to the amount of the payment and the determination of the adjudicator could do no more than recognize that right. The only benefit from the adjudication process would follow from the ability to register the adjudication certificate in a Court of competent jurisdiction and thereby obtain a judgment. However, on the hypothesis under consideration, the claimant could equally well sue for the payment and recover summary judgment.
54 In short, I adhere to the view that I expressed on this point in Abacus.