Chase Oyster Bar v Hamo Industries [2010] NSWCA 190

Reported Decision: 78 NSWLR 393272 ALR 750[2011] ALMD 1134[2011] ALMD 1135[2011] ALMD 1133[2011] ALMD 1465[2011] ALMD 1088[2011] ALMD 1089

New South Wales Court of Appeal

CITATION: Chase Oyster Bar v Hamo Industries [2010] NSWCA 190

HEARING DATE(S): 2 August 2010

JUDGMENT DATE: 24 September 2010

JUDGMENT OF: Spigelman CJ at 1; Basten JA at 62; McDougall J at 110

Question 1: Whether the determination of the Second Defendant (the Adjudicator) on 18 March 2010 that he could hear and determine the first defendant's adjudication application pursuant to the Building and Construction Industry Security of Payment Act (the Act) should be set aside or quashed for jurisdictional error in circumstances where the adjudicator incorrectly concluded (on the facts found by him and on the facts subsequently found by the Court) that the notice required by Section 17(2)(a) of the Act had been served on the Plaintiff in the time required by the Act. Answer: The Supreme Court, in exercise of its supervisory jurisdiction: (a) has power to determine that – (i) an adjudication application has not been made in compliance with s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999; (ii) the determination of the adjudicator, made in the absence of a valid adjudication application, was invalid, and (iii) there was non-compliance in the present case; (b) has power to grant relief in the nature of certiorari and set the determination aside. DECISION: Question 2: Whether in light of the decision of the High Court Kirk v Industrial Relations Commission [2010] HCA 1 the decision in Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 should not be followed or was incorrectly decided so far as it held that: a. the Supreme Court of New South Wales was not required to consider and determine the existence of jurisdictional error by an adjudicator in reaching a determination under the Act; b. an order in the nature of certiorari was not available to quash or set aside a decision of an adjudicator under the Act; c. the Act expressly or impliedly limited the Supreme Court of New South Wales' power to consider and quash a determination for jurisdictional error by an adjudicator in reaching a determination under the Act. Answer: To the extent that Brodyn Pty Ltd v Davenport held, in relation to an adjudication application which was not in compliance with s 17(2)(a) of the Act, the matters set out in the question at a, b and c, it was in error. Question 3: Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator's determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari. Answer: The Act contains no such limitation. Order that, as between Chase and Hamo the costs in this Court should be Chase's costs in the proceedings, but otherwise there should be no order as to costs.