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Arbitration and Dispute Resolution in the Resources Sector pp 125–151Cite as

Statutory Adjudication and the Resources Sector

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Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 43))

Abstract

Over the course of the past 19 years, construction industry payment and adjudication legislation, in one form or another, has been enacted in the UK and throughout Australia, as well as in several other international jurisdictions. This legislation has had a significant impact upon payment culture and dispute resolution within the construction industry. Although the UK, Australian and New Zealand Acts provide ‘mining exclusions’, the courts have generally given these provisions a very narrow interpretation. Consequently, there is still a good chance that many types of construction works carried out at mining sites will be covered by the legislation and, therefore, subject to statutory adjudication. This chapter gives a background to statutory adjudication, provides an overview of the statutory adjudication process, considers the key legislative differences between the jurisdictions which have adopted statutory adjudication, analyses the legislative provisions concerning the mining exclusions, and reviews the relevant judicial decisions concerning statutory adjudication in the resources sector.

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Notes

  1. 1.

    Ackner (1996), House of Lords Debates, 571, Cols 989–990.

  2. 2.

    Riches, J.L., and Dancaster, C. (2004), “Construction Adjudication”, 2nd ed., Blackwell Publishing, Oxford, at 2.

  3. 3.

    Such as the Association of Consultant Architects’ form of contract (2nd ed., 1984), and the 1988 supplementary provisions to the JCT 1981 with Contractor’s Design Contract.

  4. 4.

    Riches and Dancaster, n 2 at 3.

  5. 5.

    Latham, M. (1994), Constructing the Team—Final Report of the Government/Industry Review of Procurement and Contractual Arrangements in the UK Construction Industry, London.

  6. 6.

    Part II of The Housing Grants, Construction and Regeneration Act 1996.

  7. 7.

    Latham, n 5, 91.

  8. 8.

    NSW Government Finance and Services (2012), Building and Construction Industry Security of Payment Act 1999, Adjudication Activity in New South Wales, Annual Report 2011/12, retrieved 5 April 2013 from: http://www.procurepoint.nsw.gov.au/sites/default/files/documents/annual-report-2012-final.pdf.

  9. 9.

    Trushell, I., Milligan, J.L., and Cattanach, L. (2012), “Adjudication Reporting Centre Report, Research analysis of the progress of adjudication based on returned questionnaires from adjudicator nominating bodies (ANBs) and from a sample of adjudicators, Report no. 12”, Glasgow Caledonian University.

  10. 10.

    Namely, all the Australian, the UK and New Zealand Acts.

  11. 11.

    As noted by M Bell, and D Vella (2010), “From motley patchwork to security blanket: The challenge of national uniformity in Australian ‘security of payment’ legislation”, 84 Australian Law Journal 565 at 567.

  12. 12.

    Although the Tasmanian Act commenced operation before the ACT and SA Acts, it was actually the last Act to be passed in Australia.

  13. 13.

    T Kennedy-Grant (2005), “Antipodean Dispute Resolution”, paper presented at a meeting of the Society of Construction Law London, 16.

  14. 14.

    As such, the Isle of Man Act will not be dealt with separately in the legislative comparison that follows.

  15. 15.

    According to PCF Chan (2006), “Security of Payment Legislation—Case of a Blunt but Practical and Equitable Instrument”, Journal of Professional Issues in Engineering Education and Practice 132(3), 248, the NSW Act’s focus on payment disputes as opposed to the UK Act’s much wider scope of disputes, better serves the need of the Singapore construction industry which has been ‘plagued by a great number of contractors and subcontractors becoming insolvent because cash flow could not be maintained as payments were withheld’.

  16. 16.

    Coggins, J.K., and Donohoe, S. (2012), “The Validity of Adjudicators’ Determinations containing Errors of Law—a Comparison of Judicial Approaches in England and New South Wales”, International Journal of Law in the Built Environment, 4(2), at 198–199.

  17. 17.

    The term ‘UK Act’ is used in this paper to collectively refer to Part II of The Housing Grants, Construction and Regeneration Act 1996 (England and Wales), The Housing Grants, Construction and Regeneration Act 1996 (Scotland) (Commencement No. 5) Order 1998 (Scotland) and The Construction Contracts (Northern Ireland) Order 1997.

  18. 18.

    Latham, n 5, 87.

  19. 19.

    UK Act, s 108(3).

  20. 20.

    Austin Hall Building Ltd v Buckland Securities Ltd [2001] EWHC Technology 434 at [19].

  21. 21.

    It should be noted that, unlike the UK Act, the Western Australia and Northern Territory Acts do not allow for the adjudication of all disputes under the contract, but they do allow for adjudication of all payment claims under the contract.

  22. 22.

    Iemma, M. (1999), NSW Parliamentary Debates, Legislative Assembly, 29 June 1999, at 1594; Delahunty (2002), Victorian Parliamentary Debates, Legislative Assembly, 21 March 2002, at 427.

  23. 23.

    Wallace, A (2013), ‘Final Report, Discussion Paper—Payment dispute resolution in the Queensland building and construction industry’, May 2013, viewed 7 July 2014, http://www.bcipa.qld.gov.au/SiteCollectionDocuments/Publications/Andrew%20Wallace%20Final%20Report.pdf.

  24. 24.

    Department of Housing and Public Works (Queensland), Building and Construction Industry Payments Act—Amendments, viewed 7 July 2014, http://www.bcipa.qld.gov.au/SiteCollectionDocuments/Fact%20Sheets/BCIPA%20Fact%20Sheet%20-%20Amendments.pdf.

  25. 25.

    Adapted from Coggins, J., Fenwick Elliott, R., and Bell, M. (2010), “Towards Harmonisation of Construction Industry Payment Legislation: A Consideration of the Success Afforded by the East and West Coast Models in Australia”, Australasian Journal of Construction Economics and Building, 10(3) at 15.

  26. 26.

    NSW Act, s 8(1).

  27. 27.

    With the exception of the Victoran Act, and for complex payment claims under the Queensland Act.

  28. 28.

    For example, neither the NZ nor Malaysian Acts make the serving of a statutory payment schedule a condition precedent to the respondent’s right to lodge an adjudication response. Further, unlike NSW model, the NZ Act expressly allows for contractually provided set-offs (e.g., liquidated damages) to be taken into consideration when calculating the amount of progress payments—see NZ Act, s 17(1)(c).

  29. 29.

    See Malaysian Act, s 4.

  30. 30.

    See NZ Act, s 25(1).

  31. 31.

    See Malaysian Act, s 25.

  32. 32.

    See NZ Act, s 45.

  33. 33.

    See NZ Act, s33; Malaysian Act, s 21.

  34. 34.

    With the exception of the Queensland Act which has recently been amended to provide for appiontment by a single government registry.

  35. 35.

    NZ Act, s 33(3).

  36. 36.

    The Queensland Act has been chosen as an example as several court decisions are discussed below which concern the definition of construction work under the Queensland Act. The definition of construction work in the Queensland Act is very similar to that in the NSW, Victorian, ACT, Tasmanian and South Australian Acts.

  37. 37.

    The UK and NZ Acts do not cover contracts which are solely for the supply of goods related to construction work. Further, the NZ Act does not cover contracts for professional services related to construction work.

  38. 38.

    The Queensland Act has been chosen as an example as several court decisions are discussed below which concern the definition of construction work under the Queensland Act. The definition of related goods and services in the Queensland Act is very similar to that in the NSW, Victorian, ACT, Tasmanian and South Australian Acts.

  39. 39.

    See NZ Act, s 6(2); NSW Act, s 5(2); Victorian Act, s 5(2); Queensland Act, s 10(3); ACT Act, s 7(h); Tasmanian Act, s 5(2); South Australian Act, s 5(2).

  40. 40.

    WA Act, s 4(3); NT Act, s 6(2).

  41. 41.

    WA Act, s 4(3).

  42. 42.

    Coggins, Fenwick Elliott, and Bell, n 25, 18.

  43. 43.

    NT Act s 6(1)(f)(i); WA Act s 4(2)(f)(i). It may, however, be expected that tunnelling and boring will usually fall outside the ambit of “construction work” either through the “constructing …” exclusion referred to in the first subpoint above or because mining is not an activity referred to in the inclusions sub-section.

  44. 44.

    UK Act, s 105(2).

  45. 45.

    Administrative Review Council (2006). The Scope of Judicial Review, Report to the Attorney-General, 10.

  46. 46.

    [2004] NSWCA 394.

  47. 47.

    Brodyn at [54].

  48. 48.

    Brodyn at [53]. The section numbers shown in brackets refer to the relevant sections of the NSW Act.

  49. 49.

    [2010] NSWCA 190.

  50. 50.

    Brodyn at [54]. See, also, JAR Developments Pty Ltd v Castleplex Pty Ltd [2007] NSWSC 737 at [46].

  51. 51.

    (2010) 239 CLR 531.

  52. 52.

    Chase at [154].

  53. 53.

    In Chase at [159], McDougall J noted that in Kirk the majority emphasised ‘that the reasoning in Craig … is not to be seen as providing a rigid taxonomy of jurisdictional error’, and ‘not to be taken as marking the boundaries of the relevant field.’.

  54. 54.

    Chase at [154]. Relying on the NSW Court of Appeal’s concession, in Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385 at [71], that the description of basic and essential requirements as essential pre-conditions for the existence of an adjudicator’s determination reflected the concept of jurisdictional error under the general law. Subsequently, in Clyde Bergemann v Varley Power [2011] NSWSC 1039 at [41], McDougall J confirmed that the basis and essential requirements in Brodyn may now be accepted as jurisdictional.

  55. 55.

    See, for example, Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190.

  56. 56.

    See, for example, Sugar Australia Pty Ltd v Southern Ocean Pty Ltd and Anor [2013] VSC 535.

  57. 57.

    For further discussion as to construction of jurisdiction facts in a “narrow” sense, see Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304 at [73].

  58. 58.

    See, for example, Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304.

  59. 59.

    See, for example, K&J Burns Electrical v GRD Group (NT) Pty Ltd (2011) 246 FLR 285.

  60. 60.

    For further discussion as to construction of jurisdiction facts in a “narrow” sense, see Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304 at [74].

  61. 61.

    [2011] WASC 80.

  62. 62.

    MCC Mining (Western Australia) Pty Ltd and Thiess Pty Ltd [2010] WASAT 140 in which it followed its earlier decision in Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 134. Note that subsequently, in Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217, the WA Supreme Court has affirmed that the right of review by the SAT under the Act cannot be extended to review the determination of an adjudicator who has decided not to dismiss an application and made a determination on the merits.

  63. 63.

    Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80 at [106].

  64. 64.

    Thiess Pty Ltd v MCC Mining (Western Australia) Pty Ltd [2011] WASC 80 at [172].

  65. 65.

    [2012] QSC 4.

  66. 66.

    Queensland Act, s 10(1)(b).

  67. 67.

    Queensland Act, s 10(1)(e).

  68. 68.

    HM Hire Pty Ltd v National Plant and Equipment Pty Ltd and Anor [2012] QSC 4 at [12], agreeing with Fryberg J in Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2011] QSC 345 at [42].

  69. 69.

    HM Hire Pty Ltd v National Plant and Equipment Pty Ltd and Anor [2013] QCA 6.

  70. 70.

    [2012] QCA 276.

  71. 71.

    In reaching this finding, the Court endorsed the observations made in HM Hire Pty Ltd v National Plant and Equipment Pty Ltd and Anor [2012] QSC 4 at [16] as discussed above.

  72. 72.

    Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd and Anor [2012] QCA 276 at [68].

  73. 73.

    Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd and Anor [2012] QCA 276 per Holmes JA at [2].

  74. 74.

    [2010] EWHC 1076 (TCC).

  75. 75.

    Cleveland Bridge (UK) Ltd v Whessoe-Volker Stevin Joint Venture [2010] EWHC 1076 (TCC) at [56].

  76. 76.

    [2012] QCA 276.

  77. 77.

    Cleveland Bridge (UK) Ltd v Whessoe-Volker Stevin Joint Venture [2010] EWHC 1076 (TCC) at [120].

  78. 78.

    Cleveland Bridge (UK) Ltd v Whessoe-Volker Stevin Joint Venture [2010] EWHC 1076 (TCC) at [110].

  79. 79.

    [2013] QSC 164.

  80. 80.

    Agripower Australia Ltd v J&D Rigging Pty Ltd and Ors [2013] QSC 164 at [17].

  81. 81.

    Acts Interpretation Act 1954 (Qld).

  82. 82.

    Mineral Resources Act 1989 (Qld), s 10.

  83. 83.

    Agripower Australia Ltd v J&D Rigging Pty Ltd and Ors [2013] QSC 164 at [64]–[66].

  84. 84.

    Agripower Australia Ltd v J&D Rigging Pty Ltd and Ors [2013] QSC 164 at [55].

  85. 85.

    [2013] QCA 406.

  86. 86.

    J&D Rigging Pty Ltd v Agripower Australia Ltd and Ors [2013] QCA 406 at [19].

  87. 87.

    J&D Rigging Pty Ltd v Agripower Australia Ltd and Ors [2013] QCA 406 at [37].

  88. 88.

    J&D Rigging Pty Ltd v Agripower Australia Ltd and Ors [2013] QCA 406 at [57].

  89. 89.

    J&D Rigging Pty Ltd v Agripower Australia Ltd and Ors [2013] QCA 406 at [59].

  90. 90.

    [2012] WASAT 13.

  91. 91.

    Conneq Infrastructure Services (Australia) Pty Ltd v Sino Iron Pty Ltd [2012] WASAT 13 at [46].

  92. 92.

    Conneq Infrastructure Services (Australia) Pty Ltd v Sino Iron Pty Ltd [2012] WASAT 13 at [84].

  93. 93.

    Conneq Infrastructure Services (Australia) Pty Ltd v Sino Iron Pty Ltd [2012] WASAT 13 at [82].

  94. 94.

    Conneq Infrastructure Services (Australia) Pty Ltd v Sino Iron Pty Ltd [2012] WASAT 13 at [70]–[71].

  95. 95.

    [2012] WASC 129.

  96. 96.

    Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [2012] WASC 129 at [16].

  97. 97.

    The UK Act also excludes demolition of plant or machinery as well as erection or demolition of steelwork for the purposes of supporting or providing access the plant or machinery.

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  1. Royal Institution of Chartered Surveyors, London, UK

    Jeremy Coggins

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Editors and Affiliations

  1. Curtin University School of Law, Bentley, West Australia, Australia

    Gabriël A. Moens

  2. Curtin University School of Law, Bentley, West Australia, Australia

    Philip Evans

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Coggins, J. (2015). Statutory Adjudication and the Resources Sector. In: Moens, G., Evans, P. (eds) Arbitration and Dispute Resolution in the Resources Sector. Ius Gentium: Comparative Perspectives on Law and Justice, vol 43. Springer, Cham. https://doi.org/10.1007/978-3-319-17452-5_8

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