Statutory Adjudication

By Samer Skaik

The intent of the Security of Payment (SOP) legislation in many jurisdictions[1] was set out to help vulnerable class of subcontractors get paid in a timely manner. As such, rapid statutory adjudication was introduced within the legislation whereas adjudication decisions are binding and interim pending any subsequent final resolution of the dispute by arbitration or litigation. However, adjudication decisions can mainly be set aside[2] by way of judicial review on grounds of jurisdictional errors which invalidate adjudication process. Adjudicators are always susceptible to errors when deciding upon jurisdictional issues due to many factors including the complex drafting of the SOP legislation, tight timeframes, complexity of raised arguments, a failure by disputants to raise jurisdictional issues not apparent on the submissions as well as the inappropriate selection of adjudicators where the referred matter requires a particular expertise. …

Why should adjudicators refrain from deciding jurisdictional issues? (Part 1)Read More »

By Samer Skaik

Quality of adjudication decisions under the Security of Payment legislation may mean different things to different people. The ultimate yardstick by which adjudication quality can be measured is to be found in the legal accuracy – both in terms of procedural and substantive fairness – of adjudication decisions whether such decisions involve a determination on the merits or dismissal for want of jurisdiction. However, recognising that there is a trade-off between fairness and efficiency in dispute resolution,[1] this criterion needs to be calibrated in the light of the legislative objective, being to provide a rapid dispute resolution procedure in order to expedite cash flow on construction contracts. Thus, it would clearly be absurd to hold adjudication decisions up to as higher level of scrutiny as in arbitration or litigation. …

The impact of flawed appointment on the quality of adjudication outcomeRead More »

By Samer Skaik

Many commentators have suggested that,[1] the “one size fits all” approach taken by the Australian security of payment legislation (save for Queensland) is no longer appropriate (if indeed it ever was) for producing quality outcomes in adjudications of complex payment claims, where larger and more difficult payment disputes are involved. …

Towards shaping better criteria of diagnosing complex construction adjudicationsRead More »

By Samer Skaik

I am thrilled that my four peer reviewed book chapters on Australian Statutory Adjudication will be available in the market in Feb 2017 under “International Contractual and Statutory Adjudication” book which is edited by Andrew Burr and being published by Informa Law from Routledge.

This is the breakdown of the chapters:

1. Australia: the East Coast Model with New South Wales as the Principal Legislation
2. Australia: the East Coast Model: Victoria, Tasmania, The Australian Capital Territory and South Australia
3. Australia: the East Coast Model: Queensland
4. Australia: the West Coast model

Those chapters will be added to the already published three journal papers to form the main chapters of my PhD ‘thesis by publication’. …

Forthcoming: My four book chapters on Australia within “International Contractual and Statutory Adjudication” BookRead More »

By Samer Skaik, Jeremy Coggins, Anthony Mills

Since its introduction in to Australia fifteen years ago, statutory adjudication has become increasingly used by parties seeking to recover payment claims which are large in amount and technically and legally complex in nature. This has inevitably led to the formalisation of the adjudication process with parties often submitting, amongst other documents, expert witness reports to support their arguments. The increase in documentation that an adjudicator must consider poses a threat to the integrity of the adjudicator’s determination. …

How should adjudicators deal with expert reports in Australia?Read More »