48 I agree ...... that, because an adjudicator is not bound to apply the laws of evidence, such a person does not qualify as an ’Australian court‘ on that basis. But, is an adjudicator authorised by the Security of Payment Act to ‘hear, receive and examine evidence’? In considering whether, as a matter of statutory interpretation an adjudicator meets that description I am to prefer a construction that promotes the purpose or object of the Evidence Act......... Assuming, as I do, that the regime of privilege is intended to ensure fairness between participants in the conduct of litigious processes, I would not give that expression a narrow meaning .....
49 The adjudication occurs in a patently adversarial setting. It is determined upon the basis of evidence presented in documentary form, and upon written submissions. ...... Despite the fact that the adjudication may not ultimately determine the parties’ rights if, in a subsequent court proceeding, the parties’ entitlements are litigated, the adjudication result is enforceable at law and is binding upon the parties unless and until a subsequent court order changes that outcome. I think that the nature of adjudications is such that preserving the confidentiality of communications, made for the dominant purpose of enabling the provision of legal services to participants in the adjudication, would promote the object of fairness for and between those participants.
50 Bearing those matters in mind, I conclude that the provisions of the Act I have summarised above do authorise the adjudicator to ‘hear, receive and examine evidence’ as I would construe that expression. I therefore construe the definition of ‘Australian court’ to embrace an adjudicator under the Security of Payments Act and an adjudication as an ‘Australian proceeding’ within the meaning of s119 of the Evidence Act.
.........
 

dura-australia-constructions-pty-ltd-v-hue-boutique-living-pty-ltd-2011-vsc-477-23.pdf

“Structx” was a builder, constructing homes in Hamilton, for the Director of Housing of the State of Victoria. The Director sought to have the determination quashed on the grounds that :
1. the relevant contract was a domestic building contract and the Director was/is not in the business of building residences (Section 7(2)(c) of the Act);
2. the adjudicator erred in finding that there was no Payment Schedule (on the basis, contested by the Director) that the Superintendent’s Representative lacked authority to issue payment schedules;
3. the adjudicator erred in finding that the Payment Schedule had to be in the form prescribed by the contract (Section 15(2)(d) of the Act).

The Contract was an amended AS2124 General Conditions of Contract form of contract.
His Honour concluded:
1. (Referring to his earlier decision in Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) ), where His Honour had said:
They [adjudicators appointed under the Act] are clothed with legal authority to make a binding determination for the purposes of the Act which affect the statutory rights or obligations of persons or individuals who are claimants for progress payments under the Act or who are respondents to such claims.
His Honour concluded, at paragraphs 17-19:
As such they are amendable to certioriari. However, an adjudicator appointed under the Act does not constitute an inferior court within the court hierarchy…..

As observed in Craig, an adjudicator is therefore exposed to fall into jurisdictional error in a broader range of circumstances than a court.

In the present case, I do not consider that the exception provided by s 7(2)(b) of the Act was intended to confer on an adjudicator the power to decide jurisdiction founded on questions of law or mixed questions of law and fact, which includes the power to decide the question wrongly, without attracting prerogative relief.

Accordingly, the adjudicator’s decision in this respect was/is open to certiorari. His Honour then went on to conclude that the Director was not “in the business of building residences” within the meaning of s 7(2)(b) of the Act, and for this reason the proviso did not operate to exempt the Construction Contract from the operation of the Act. In this respect, the adjudicator erred, and certiorari could be issued.

2. As to the adjudicator’s determination that the Superintendent’s Representative lacked authority to issue payment schedules, His Honour concluded that the purpose of the letter containing the Director’s delegation of authority (relied on by builder as not giving that authority, and accepted by the adjudicator) was to nominate a Superintendent’s Representative for the purposes of the Construction Contract, not the Act, it did not purport to limit the Director’s delegation of authority to the matters set out, nor was it evidence that the architect did not have authority to issue a payment schedule under the Act. In this respect, the adjudicator erred, and certiorari could be issued.
3. The Adjudicator also found that the payment schedule was invalid, because it was not in any prescribed form. Section 15(2)(d) of the Act provides that a payment schedule “must be in the relevant prescribed form (if any)”, however, there are no forms for payment schedules prescribed by regulation. The Adjudicator fell into further error on the face of the record, and on this ground certiorari should also issue.
4. In failing to take into account the payment schedule and the Director’s submissions founded upon it, as required by s 23(2)(d), the Adjudicator fell into further error on the face of the record, and certiorari should issue on this ground.
5. Further, in failing to take into account the payment schedule and the Director’s submissions founded upon it, the Adjudicator did not afford procedural fairness to the Director. This amounted a substantial denial of the measure of procedural fairness required under the Act. On this ground too, an order in the nature of certiorari should be made.
His Honour then considered jurisdictional error, discussed by the High Court in Craig v South Australia, and more recently in Kirk v Industrial Court (NSW). His Honour concluded that the authority of the Supreme Court to quash an adjudication determination where jurisdictional error has occurred has been reinforced by Kirk.

His Honour quashed the adjudication determination (and made the declaration sought by the Director to the effect that the Director is not in the business of building residences within the meaning of s 7(2)(b) of the Act).
 

director-of-housing-of-state-of-victoria-v-structx-pty-ltd-trading-as-bizibuilders-2011.pdf

altain-khuder-llc-v-imc-mining-inc-imc-mining-solutions-pty-ltd-2011-vsc-1.pdf

The substantive argument related to pre-trial steps, the defendant wanting all group members to provide discovery of documents relevant to quantum of their respective claims prior to a determination of the liability of Powercor, whereas the plaintiff wanted no discovery prior to determination on liability.

Forrest J referred to the new Act

49 Contrary to the submissions made on behalf of Mr Thomas, it is patently contrary to the purpose and intent of the C.P.A. for a court to sit by passively and allow a case to proceed to what may be a lengthy trial of Mr Thomas’ claim on liability and quantum, without ensuring that there is adequate information available to both Mr Thomas and Powercor to achieve resolution, not only of Mr Thomas’ claim but also of the claims of the group members. In my experience this is not a novel proposition. Often in group proceedings the solicitors for the representative plaintiff provide particulars and, where necessary, supporting documentation relevant to the quantum of group members’ claims. The initial bulldog approach adopted by Mr Thomas’ lawyers is outmoded and runs contrary to the provisions of the C.P.A.[34] This is a case in which the Court should exercise its powers to ensure that there is adequate material available to Powercor to enable it to form a considered view as to the likely resolution of the group’s claim …
41 ……. I think that this Court needs to be proactive in its approach to facilitating and encouraging settlement. This approach is endorsed by the impending introduction on 1 January 2011 of the Civil Procedure Act 2010,[32] which will govern the conduct of this proceeding after that date. A number of the provisions of the C.P.A. direct a court to actively pursue processes (including the making of orders) aimed at early settlement of a dispute……..
47 These provisions, it seems to me, require a court to be proactive and, if necessary, innovative in its approach to appropriate dispute resolution.[33] There is no need to wait until the Act is proclaimed – if any issue is raised about its application to this proceeding, I will defer the making of orders until January……
69 Undoubtedly, the Court’s power to fashion orders in relation to the manner in which trials are conducted (either jointly or separately) and the use of evidence from one trial to another will be enhanced by the provisions of the C.P.A., in particular s 47 (the relevant parts are set out at paragraphs 44-45) and s 49, which gives the Court the power to …… give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
 

Although not necessary to consider whether the Expert was required to give reasons to the standard with which those exercising a judicial function must comply, the Court reflected upon what standard of reasons are required to be provided by an arbitrator.  Even assuming that the standard was a lesser one, experts who are required to give reasons “should explain succinctly why, in light of what happened, they reached their decision and what the decision is (Bremer Handelsgellshcaft mbH v Westzucker GmbH ( No2) [1981] 2 Lloyd’s Rep 130 at 132-3 referring to the obligations of arbitrators: compare Oil Basins Ltd v BHP Billiton Ltd [2007]VSCA 255;(2007) 18VR 346 and Gordian Runoff Limited v Westport Insurance Corporation [2010] NSWCA 57). This standard is not complied with if the ultimate basis for a decision cannot be discerned because of inconsistency of reasons or findings.”

On this basis, the Court concluded that the contractual requirement that the Expert give reasons for his decision was not satisfied.

In a separate judgment, Campbell JA also cautioned against drawing analogies between arbitration and expert determination.

Notably, the obligation to act impartially was not affected by the bifurcated position of the contract administrator (Architects) who were also the building owner. 

In relation to the builder's claims for variations of time, the Court further held that the architects were estopped from raising non-compliance with contractual time limits, or that it would be unconscionable to raise such arguments, because neither party performed its works under the contract in strict compliance with the contractual terms nor required the other party to so act.

In reaching this conclusion, the Full Court considered the approach of the High Court of Australia in Tabcorp Holdings Ltd v Bowen Pty Ltd [2009] HCA 8 , where their Honours held that the intention of the party seeking damages is only relevant to the question of "reasonableness" of rectification. 

The Full Court also applied the rule that, unless exceptional circumstances exist, a party may not raise an argument on appeal that has not been raised at trial.  

Applicable provisions: s 134 provides, in effect, that – notwithstanding any other period of limitation – a ‘building action’ cannot be brought more than 10 years after the issue of the relevant occupancy permit. Section 129 defines ‘building action’ to include an action ‘for damages for loss or damage arising out of or concerning defective building work’. Section 3(1) defines ‘building work’ as ‘work for or in connection with the construction… of a building’.

Background

In this case, the permit was issued in February 1997, and the litigation did not commence until May 2007. The trial judge held that the proceeding was ‘wholly a building action’, and that it was therefore ‘wholly statute barred’ by operation of s 134. His Honour concluded that it was “artificial” to distinguish the “site preparation works” from the construction of the footings themselves. The builders were engaged under a single contract to perform both the site preparation works and the work of constructing the buildings. The approved plans (and building permit) made specific reference to the site preparation. Consequently, the trial judge concluded that the construction of the building, and in particular the construction of the footings, followed on from, and was directly connected to, the site preparation works.

Appeal

On Appeal, the Appellants sought to get around the 10 year cut off period by linking the relevant breach with site preparation works (which are not part of the building), as distinct from the footings (which were part of the building). They submitted that:

• Time began to run when the defects were first noticed in or about January 2000; and
• Section 134 is not relevant, because the flaw in the unit was not the result of any fault in the Respondents’ ‘building work’ itself. The problem was solely attributable to the Respondents’ site preparation works which did not constitute ‘building work’ for the purposes of the Act, because it was not work in connection with the construction of the unit, nor was it work for which a building permit was required.

Two principal grounds were advanced by the Appellants:

• That the trial judge should have decided the question by reference to the nature of the works themselves. The Appellants contended that ‘building work’, for the purposes of the Act, is only work that requires a permit, which should be determined by the nature of the work, and not by reference to whether the work is to be performed under one contract, or by one party, or included in a drawing.
• The requirement “connected with” under s 3 of the Act should be confined to activities undertaken after the commencement of the construction of the building, and not extend to preparatory site works.

The Court of Appeal concluded that, firstly, the question should have been decided by reference to the nature of the works themselves, and secondly, the trial judge had so decided. The Court of Appeal agreed with the trial judge that it was “artificial” to distinguish “site preparation works” from the construction of the footings themselves, and to then allocate the (acknowledged) breach of duty solely to site preparation.
 

This decision is consistent with the reasoning in Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5 and re-affirms that the relevant standard of proof in negligence actions is the balance of probabilities.  Damages for a loss of a chance or opportunity may only be awarded in very limited circumstances. 

Until the High Court is given the opportunity to reconsider the definition of "consequential loss", these Court of Appeal cases suggest that an exclusion for "consequential loss" may exclude liability for all "loss of profits" and "expenses incurred through breach" even if they are not specifically referred to in the exclusion clause, or if they fall within the first limb of Hadley v Baxendale. 

Nick Galloway’s guidance on this summary gratefully acknowledged (any errors are ours) - Editor

The relevant intention before the Court was that of the defendant.  The Court emphasised that the defendant’s “intention [was] to be ascertained from the document as a whole, read in the context of the factual matrix as known or assumed by the parties” [at 55].  Although the Court noted (in favour of the plaintiffs’ argument) that the statement at the commencement of the execution pages that the document was “executed as a deed” and the words next to the signature of the defendant's representative that it had been signed, sealed and delivered and executed as a deed [at 56], it rejected the plaintiffs' case.  Some of the circumstances that indicated that the document was not intended by the defendant to be a deed included:

• The unambiguous statement in the document to the effect that the defendant’s promises were given for those made by other parties, was inconsistent with the notion that, at least for a length of time, the defendant should be bound whilst other parties were not bound [at 57];
• The defendant did not insert a date as “the date of this Agreement”. This indicated that the defendant was not intending to be then bound [at 58];
• The Operative part of the instrument did not use the language of deeds (whereas, in contrast, the proposed lease instrument consistently used the language of deeds) [at 59]; and
• At no stage in the dealings between the parties or their solicitors was there any suggestion that the agreement for lease should operate as a deed [at 60].

Nick Galloway’s guidance on this summary gratefully acknowledged (any errors are ours) - Editor