Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd

[2014] WASC 40

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Certiorari
4. › Adjudicator's determination under Construction Contracts Act 2004 (WA)
5. › Denial of procedural fairness
6. › Whether adjudicator determined dispute on basis not raised by parties
7. › Whether adjudicator required to give notice of proposed conclusion and opportunity to make submissions
8. › Construction Contracts Act 2004 (WA), ss 31, 32, 43, 46, 53
1. Administrative Law
2. › Procedural fairness
3. › Decision maker's obligation to disclose proposed conclusions
4. › Whether conclusion could reasonably be anticipated by parties
5. › Whether denial of procedural fairness deprived party of possibility of successful outcome
1. Administrative Law
2. › Judicial review
3. › Availability of certiorari
4. › Adjudicator under Construction Contracts Act 2004 (WA)
5. › Whether breach of procedural fairness grounds certiorari regardless of whether adjudicator analogous to court or tribunal
6. › Construction Contracts Act 2004 (WA), s 46(3)
1. Administrative Law
2. › Judicial review
3. › Discretion to refuse relief
4. › Whether futility of relief established
5. › Whether interim character of determination and statutory objectives warrant refusal of relief

Quick Take

An adjudicator under the Construction Contracts Act 2004 (WA) who proposes to determine a dispute on a basis not raised by either party must give the parties notice and an opportunity to make submissions, failing which the determination may be quashed by certiorari. A contractual provision about when and how to respond to a payment claim does not necessarily purport to exclude, modify or restrict the operation of the Act merely because it differs from the implied terms under s 17.