Adjudication in the Northern Territory

ichthysI have been spending a bit of time in Darwin. As it happens, I am an accredited adjudicator there, but this time I have been there as counsel, again bowling over a determination of another adjudicator.

The first outing was before the Chief Justice, obtaining interlocutory relief ex parte on notice to restrain the other party from enforcing the determination it had obtained pending the hearing of our challenge. The usual practice in the Northern Territory had not been to grant relief, but happily, the Chief Justice gave indications that he was persuaded by my submissions that we had a prima facie case, and as to the balance of convenience, that the factors to weigh in the balance were potentially

  • to keep the adjudication claimant of of its money for a couple of weeks or so, while the challenge was heard, contrasted with
  • to keep the adjudication respondent out of its money for perhaps a couple of years or so, for the payment to be recouped by full-scale arbitration poroceedings.

He was thus minded to follow the New South Wales practice, noted in Williams v Concreting Services [2013] NSWSC 85 per McDougall J:

[7]           There is a long string of first instance decisions which establishes that usual practice. Some of them are decisions of mine. I do not feel persuaded that I should depart from the principle established by those decisions…

[10]         The general practice is, as I have said, that someone in the position of the first defendant should be prevented from exercising those rights only if it is given a substantial degree of satisfaction in return. Traditionally, that satisfaction has been payment into court of the adjudicated amount, or provision of a guarantee in an acceptable form in place of payment into court.

[19]         I will therefore grant injunctive relief on condition, among other things, that the sum of $110,000 be secured either by payment into court or by provision to the court of a guarantee in such form as the Registrar may accept.

and a consent order was made accordingly.

To its considerable credit, the Supreme Court was indeed able to hear the application for judicial review just 15 days later, and gave its reserved decision just 2 working days after that trial. The reasons of Kelly J have now been handed down as in CH2M Hill Australia Pty Limited & Anor v ABB Australia Pty Ltd & Anor [2016] NTSC 42 (15 August 2016). In short, the order of certiorari quashing the adjudicator’s determination was made on the basis that his reasons showed that he had not meaningfully engaged with and thus had not made a bona fide attempt to deal with critical issues in the adjudication. Those failures also constituted a substantial failure to accord natural justice, and so the purported adjudication was void for that reason also.

The subsequent decision in CH2M Hill Australia Pty Limited & Anor v ABB Australia Pty Ltd & Anor (No. 2) [2016] NTSC 43  deals with costs; my clients were awarded their costs of both the interlocutiory application and the substantive action in full.

My instructing solicitors were Pinsent Masons, which is a sort of full circle for me, since I worked for them in London (Masons, as they then were) for three years immeadiately following my qualification as a solicitor. They set up offices in Australia last year, and already seem to have made a very considerable impact here. I still have friends there, of course, from working with them (and then, quite often against them!) over many years, and it is a pleasure now to be retained by them as their advocate.


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