The decision in Probuild v Shade Systems earlier this year[1] raised a few eyebrows.  At first instance in the Supreme Court In New South Wales, Emmett AJA had decided that the determination of an adjudicator might be quashed on the basis of a non-jurisdictional error off law on the face of the record.  There had previously been one or two decisions which had suggested this possibility; after all the effect of the decision in Chase Oyster Bar v Hamow Industries had been that the decisions of the adjudicators are amenable to certiorari, an error of law on the face of the record is one of the traditional grounds for certiorari (and in deed the other forms of judicial review, namely mandamus, prohibition, and quo warranto).

On the 23^rd of December 2016 five judges in the New South Wales Court of Appeal overturned that decision in Shade Systems v Probuild Construction (No 2)[2], the decision of Basten JA (with whom all the other Judges agreed) was that it is only jurisdictional errors of law which suffice to quash an adjudicator’s determination Continue reading →