Issue 3 - One of the amounts claimed was out of time
4.7. Section 43 and the post-State Side Electrical Services Pty Ltd v WA Commercial Constructions Pty Ltd Constructions Pty Ltd
The legal environment did not change as a result of what happened in State Side Electrical Services Pty Ltd v WA Commercial Constructions Pty Ltd. However the Deputy Registrar would, one year later, in KPA Architects Pty Ltd v Diploma Constructions (WA) Pty Ltd,657 grant leave, but would wisely look to the conclusion made by his Honour Justice Beech (though the Deputy Registrar wrongly attributes these words to his Honour Justice Hall), in O'Donnell Griffin Pty Ltd v John Holland Pty Ltd,658 where his Honour stated that it was up to the
‘defendant to point to circumstances which justified a refusal to grant leave. Absent such
653 Construction Contracts Act 2004 (WA), s 30 Object of adjudication process; The object of an adjudication of a payment dispute is to determine the dispute fairly and as quickly, informally and inexpensively as possible.
654 Philip Evans, ‘Report on the Operation and Effectiveness of the Construction Contracts Act 2004 (WA)’, (Parliament of Western Australia, 2015), 87.
655 [2017] WASC 327.
656 Certa Civil Works Pty Ltd v Ghosh [2017] WASC 327, 21 [121].
657 [2013] WADC 106.
658 [2008] WASC 58.
149 circumstances leave will be granted’.659 The Deputy Registrar recognised that ‘[t]he difficulty that I have with that submission is that there was no judicial process initiated by the respondent seeking to have the determinations reviewed’,660 and that any appeal against an adjudicator’s determination is ‘beyond the power of this court.’661
In July 2016, the strong Coram of Martin CJ, Mclure P, and Newnes JA delivered the long-awaited Court of Appeal decision of Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation.662 His Honour Chief Justice Martin would state that an application for leave to enforce an adjudicator’s determination ‘involves more than merely ascertaining whether a determination has been made, but does not involve a de facto appeal from, or review of, the relevant determination.’663
His Honour would maintain that the process of seeking leave to enforce was not amenable to
‘the resolution of issues with respect to the validity of the relevant determination.’664 His Honour expressed, that this was available only through judicial review, and indicated that an adjudicator’s determination be taken as authoritative unless otherwise challenged.665
Disappointingly, his Honour went on to say that ‘[i]t is, therefore, neither practicable nor desirable to attempt to define the metes and bounds of the court's jurisdiction or the ambit of the discretion available to a court.’666 There were many who felt that this issue had some resolution, and the case of Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation would be a good case to ensure this.
Nearly three months later, in October 2016, four years after the case of State Side Electrical
659 O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58, 9 [41].
660 KPA Architects Pty Ltd v Diploma Constructions (WA) Pty Ltd [2013] WADC 106, 3 [3].
661 Ibid.
662 [2016] WASCA 130.
663 Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130, 50 [141].
664 Ibid.
665 Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130, 50 [141].
666 Ibid 50-51 [141].
150 Services Pty Ltd v WA Commercial Constructions Pty Ltd,667 his Honour Justice Beech, had previously dealt with the issue of s 43(2) of the Act in the Supreme Court on four occasions, (see; O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2008] WASC 58, RE Scott Johnson;
Ex Parte Decmil Australia Pty Ltd [2014] WASC 348, Hamersley Iron Pty Ltd v James [2015]
WASC 10, Hamersley HMS Pty Ltd v Davis [2015] WASC 14, Samsung C&T Corporation v Loots [2016] WASC 330). His Honour would then in Samsung C&T Corporation v Loots,668 write the most definitive commentary, about s 43(2) of the Act. His Honour held:669
431 The following principles regarding an application for leave to enforce under s 43(2) are well established:
(1) The role of the court on an application for leave to enforce is not purely mechanical but requires the court to itself determine, in all the circumstances, that the relevant determination should be enforced as a judgment of the court.
(2) Section 43 confers a discretion upon the court in that regard.
(3) Given that the Act does not expressly identify the matters to which regard should be had on the question of leave, consideration must be given to the context, objects, purpose, and policy of the Act. The object of the Act is to keep the money flowing in the contracting chain by enforcing timely payment and sidelining protracted or complex disputes.
(4) That object gives rise to a predisposition in favour of the grant of leave. It is for the party obliged to pay to show a reason why the determination should not be enforced.
(5) The fact that a party resisting enforcement alleges that it has other pending claims which could be set-off against the adjudicated amount will not ordinarily justify the refusal of leave.
667 [2012] WADC 27.
668 [2016] WASC 330.
669 I felt that it be prudent that the principles be written verbatim, and not summarised, to ensure that the reader, whether a Judicial Officer, Legal Practitioner or an Adjudicator, understands the what has been wrttien by His Honour.
151 (6) An application for leave to enforce a determination is not an occasion to
challenge the correctness of the determination or, in the absence of a pending application for judicial review, its validity.
(7) There are no closed categories of circumstances that may be relevant to the question of whether leave should be granted.670
By 2016, there was a considerable greater amount of case history and obiter in dealing with s 43(2) of the Act. Sadly, the views of his Honour Chief Justice Martin and his Honour Justice Beech, where not available to the Deputy Registrar and then Commissioner Gething, when they made their subsequent decisions in the case of State Side Electrical Services Pty Ltd v WA Commercial Constructions Pty Ltd and (No2).671