Grocon Constructors v Planit Cocciardi Joint Venture (No. 2)

(2009) 26 VR 172; [2009] VSC 426

Supreme Court of Victoria

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Interrogate

Catchwords

1. Building and Construction Law
2. › Security of payment legislation
3. › Adjudication determinations
4. › Judicial review
5. › Whether adjudicator amenable to certiorari
6. › Whether adjudicator exercises governmental powers
7. › Building and Construction Industry Security of Payment Act 2002 (Vic)
1. Building and Construction Law
2. › Security of payment legislation
3. › Adjudication review
4. › Scope of review adjudicator's jurisdiction
5. › Whether review adjudicator bound by findings of fact of adjudicator at first instance
6. › Building and Construction Industry Security of Payment Act 2002 (Vic), ss 28B, 28I
1. Administrative Law
2. › Judicial review
3. › Certiorari
4. › Availability against statutory tribunals
5. › Whether adjudicator under security of payment legislation is tribunal exercising governmental powers
6. › Brodyn Pty Ltd v Davenport considered and not followed in part
1. Administrative Law
2. › Judicial review
3. › Grounds for review
4. › Jurisdictional error distinguished from non-jurisdictional error of law
5. › Whether distinction between jurisdictional and non-jurisdictional error applies to adjudicators under security of payment legislation
6. › Craig v South Australia applied

Quick Take

In Victoria, adjudication determinations under the Building and Construction Industry Security of Payment Act 2002 (Vic) are amenable to judicial review by way of certiorari on grounds of both jurisdictional error and non-jurisdictional error of law on the face of the record. The NSW Court of Appeal's approach in Brodyn v Davenport, which limited judicial review to failure to satisfy 'basic and essential requirements' for a valid determination, does not apply in Victoria. The record for certiorari comprises the payment claim, payment schedule, adjudication determination and reasons, and the parties' submissions. An adjudication review under s 28B is not an appeal; the review adjudicator is bound by the adjudicator's findings of fact and may only determine whether the payment claim includes an excluded amount.