Section 43 - Determinations may be enforced as orders of the court
4.5. Section 43 and the Courts
In 2008, his Honour Justice Beech, in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd,409 would be the first to hear a case that would seek enforcement of an adjudicator’s determination, pursuant to s 43 of the Act.410 His Honour would grant the enforcement. Adjudicator Roger Davis had made a determination in favour of O'Donnell Griffin Pty Ltd for an amount of
$14,515,018.30 with interest. On 4 March 2008, O'Donnell Griffin Pty Ltd commenced the proceedings for the enforcement of that amount.
His Honour opined that leave would be granted pursuant to s 43(2), in consideration of ‘a proper construction’411 of the Act; however, enforcement would be reliant on the grounds of
407 [2008] WADC 140.
408 Private Communication – author and the Contractor – 11 Nov14.
409 [2008] WASC 58.
410 Construction Contracts Act 2004 (WA), s 43.
411 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58, 4 [12(a)].
104 which the leave should be denied, by what could be established by the respondent.412
His Honour noted that pursuant to s 43(2) of the Act, did ‘not expressly identify the matters relevant to whether leave should be granted.’413 However when ‘exercising’ that power, consideration must be given, ‘to the context, objects, purpose and policy of the legislation.’414 These he noted would be found in the Construction Contracts Act itself, and any secondary materials, such as explanatory memorandum for the bill or the Second Reading Speech.
His Honour would identify that the language used in s 43(2) of the Act was most similar to s 33 of the then Commercial Arbitration Act,415 which stated:
33. An award made under an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect, and where leave is so given, judgment may be entered in terms of the award.416
His Honour concluded of both s 43(2) of the Construction Contracts Act 2004 (WA), and s 33 of the Commercial Arbitration Act 1985 (WA) ‘were of valuable assistance in the exercise of discretion under s 43(2)’.417 However his Honour would refer to the High Court of Australia case of Re Alcan Australia Ltd; ex parte Federation of Industrial, Manufacturing &
Engineering Employees,418 citing, that when Parliament legislates the words which on previous
412 Ibid.
413 Ibid 4 [13].
414 Ibid.
415 Commercial Arbitration Act 1985 (WA).
416 Ibid s 33.
417 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58, 10 [43].
418 [1994] HCA 34; (1994) 181 CLR 96, (1994) 68 ALJR 626, (1994) 123 ALR 193. Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and Mchugh JJ all agreed [at 20]; that There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already "judicially attributed to (them)" ((28) Barras v. Aberdeen Steam Trawling and Fishing Co. (1933) AC 402 at 446 per Lord Macmillan. See also D'Emden v. Pedder (1904) [1904] HCA 1; 1 CLR 91 at 110; Pillar v. Arthur [1912] HCA 51; (1912) 15 CLR 18 at 22, 25, 29-30; Platz v.
Osborne [1943] HCA 39; (1943) 68 CLR 133 at 141, 146, 146-147.), although the validity of that proposition has been questioned ((29) Salvation Army (Victoria) Property Trust v. Fern Tree Gully Corporation [1952]
HCA 4; (1952) 85 CLR 159 at 174, 182; Reg. v. Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 at 388;
Flaherty v. Girgis [1987] HCA 17; (1987) 162 CLR 574 at 594.). But the presumption is considerably strengthened in the present case by the legislative history of the Act.
105 occasions have been construed judicially, then ‘Parliament may be taken to have intended them to bear the meaning already judicially attributed to them.’419
His Honour would also look towards the New South Wales case of Cockatoo Dockyard Pty Ltd v Commonwealth of Australia [No 3].420 His Honour discussed the view held by his Honour Justice Rolfe that in his opinion, the words of s 33 of the Commercial Arbitration Act 1984 (NSW), which he confirmed were ‘identical terms to s 33 of the Commercial Arbitration Act 1985 (WA)’,421 and intended that if leave was being sought, it was not a reason to scrutinise the correctness of an arbitrator’s award422 and that the opposing party would need to ascertain why the award made by an arbitrator should not be enforced.423
His Honour sought consolation in the Explanatory Memorandum, and ratified the view that
‘[t]he adjudicator's decision determines only whether a payment must be made pending the determination (by agreement, arbitration or litigation) of any substantive dispute.’424 As Ms MacTiernan stated in the Second Reading of the Construction Contracts Bill 2004, ‘[i]ts primary aim is to keep the money flowing in the contracting chain by enforcing timely payment and sidelining protracted or complex disputes.’425 The Act does not prevent the parties to the payment dispute from instigating proceedings before an arbitrator or other person or a court or other body.’426
It is at this point that his Honour fittingly looked towards what is considered the single most important part of the Constructions Contracts Act 2004 (WA), that being s 30. Section 30 declares the ‘The object of an adjudication of a payment dispute is to determine the dispute
419 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58, 9 [43].
420 (1994) 35 NSWLR 689.
421 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58, 10 [44].
422 Ibid.
423 Ibid.
424 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58, 11 [47].
425 Western Australia, Second Reading - Construction Contracts Bill 2004, Assembly - Wed, 3 March 2004, 274d-275a, 1 (Alannah MacTiernan).
426 Construction Contracts Act 2004 (WA), s 45.
106 fairly and as quickly, informally and inexpensively as possible’,427 and the object would be subjugated if a review were conducted on an adjudicator’s determination, as to its correctness.
His Honour corroborated this often forgotten object and his next words make it clear ‘[t]he evident purpose of the adjudication process would be defeated if an application for leave to enforce a determination permitted a review of the correctness of the adjudicator's determination.’428
Since the commencement of the Act in 2005, there have been only three cases that have gone before the Western Australian Supreme Court of Appeal. The first case would be Perrinepod Pty Ltd v Georgiou Building Pty Ltd,429 which was on appeal from the SAT. The case, Perrinepod Pty Ltd,
and
Georgiou Building Pty Ltdhad previously been heard by his Honour Justice Sharp and Member Carey. The case concerned itself over a determination made by Adjudicator Davis, who determined that the respondent should pay the applicant an amount of$1,575,912.57.430
The respondent applied for a review to the SAT, asserting that Adjudicator Davis should have dismissed the application, as it was too complex, pursuant to s 31(2)(a) of the Act.431 The SAT stated that those decisions are not reviewable under s 46(1) of the Act,432 and subsequently dismissed the application. The respondent sought an appeal pursuant to s 105(1) of the SAT Act.433
While the appeal was not centred on s 43 and enforcement, his Honour Justice Murphy would confirm that a determination made by an adjudicator is amenable to judicial review if there is
427 Ibid s 30.
428 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58, 11 [47].
429 [2011] WASCA 217.
430 Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217, 11 [26].
431 Construction Contracts Act 2004 (WA), s 31(2)(a).
432 Ibid s 46(1).
433 State Administrative Tribunal Act 2004 (WA), s 105(1).
107 jurisdictional error. His Honour indicated, ‘at the point at which application is made to enforce the determination by a court of competent jurisdiction, under s 43’.434
His Honour asserted that there could be no determination, again on the basis that there could be 'determination at all’, as the adjudicator would have exceeded one's jurisdiction.435
Some 140 days later a case would come before DCWA, seeking enforcement, pursuant to s 43 of the Act.
4.6. The case of State Side Electrical Services Pty Ltd v WA Commercial Constructions Pty