An adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) can only be challenged by way of judicial review for jurisdictional error; non-jurisdictional errors of law on the face of the record, including errors in the construction of the underlying construction contract, do not provide a basis for judicial review. The adjudicator has authority to determine the scope and operation of the construction contract as a mandatory consideration under s 22(2)(b), and errors in that exercise are errors within jurisdiction. The principle of legality does not require a different result, as the supervisory jurisdiction for non-jurisdictional error of law on the face of the record does not enjoy the constitutional protection identified in Kirk.
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