The Evolution of Judicial Review of Adjudication Determinations

By Dr Samer Skaik

The judicial review of adjudication determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW) has evolved significantly over the years, reflecting a shifting legal landscape and its impact on the construction industry. This evolution, shaped by landmark cases and legislative intent, has had far-reaching implications for the adjudication process.

The Position Before 2010

Before 2010, the ambit of judicial review was substantially influenced by landmark cases such as Musico and Brodyn. These cases laid the foundation for the supervisory role of the courts in adjudication determinations. Musico established the grounds for relief to quash adjudication determinations in the nature of certiorari and outlined the limited scope for invalidity of adjudicator’s determinations for non-jurisdictional errors. However, the decision in Brodyn marked a significant shift, emphasizing that exact compliance with all the detailed requirements of the SOP Act was not essential to the existence of a determination. This nuanced understanding set the stage for a more comprehensive view of the courts’ supervisory role in the adjudication process.

The Position in 2010 and Beyond

The period post-2010 witnessed a series of judicial considerations that further shaped the supervisory role of the courts in adjudication determinations. Notably, the decision in Chase widened the scope of jurisdictional error, allowing the courts to quash adjudicator’s determinations on broader grounds, reinforcing the courts’ role in ensuring fairness and compliance with the SOP Act. This decision marked a pivotal moment in the evolution of judicial review, opening the door for broader grounds for challenging adjudication determinations. The decision in Chase reinstated the authority of Musico and expanded the grounds for relief in the nature of certiorari, aligning with the legislative intention demonstrated by the Act.

Post-Chase Developments

In its inaugural ruling on security of payment legislation, the High Court issued a decision in Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52. This ruling affirmed that the existence of a reference date within a construction contract is a precondition for making a valid payment claim and, consequently, a requirement for initiating a valid adjudication application and determination.

Future Implications

In conclusion, the evolution of judicial review in adjudication determinations has introduced a level of legal uncertainty and raised the threshold for challenging adjudicators’ determinations. These developments emphasize the need for parties to carefully frame their applications for review and navigate the evolving legal landscape, ensuring fairness and predictability in the adjudication process.

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