Two issues were considered in this case. First, whether service of an adjudication application in accordance with s 21(5) Building and Construction Industry Payments Act 2004 was required in order to confer jurisdiction on an adjudicator. Ryan J held that it was. Second, whether, in the absence of a specific time limit for service under the Act, service within 12 business days was sufficient to confer jurisdiction. Her Honour found that the Acts Interpretation Act 1954 imposes a time limit of “as soon as possible”, which, in the context of the “brutally fast” timelines allowed under the Act, was not met by serving the application 12 business days after it had been made.
18 February 2019
The applicant and respondent entered into contracts for the construction of petrol stations. [p 4 l 20]. On 28 November 2018, the applicant lodged an application for adjudication of certain progress claims in relation to the construction contracts, pursuant to the Building and Construction Industry Payments Act 2004 (“the Act”). [p 3 l 40], [p 4 l 20]. It lodged that application with the Queensland Building and Construction Commission (“QBCC”) and, on the same day, served submissions in support of its application on the respondent. [p 4 l 35]. Critically, it did not serve a copy of the application on the respondent at that time. [p 4 l 40]. The application forms were subsequently served on 14 December 2018. [p 5 l 30].
On 18 January 2019, the adjudicator delivered his decision, in which he determined that he had no jurisdiction to decide the applications. [p 5 l 45]. His reason was that the “approved form was required to have been served on [the respondent]”. [p 6 l 5]. The service of those forms on a later date was not capable of remedying the situation, as they had not been served “as soon as possible” (as per s 38 of the Acts Interpretation Act 1954. [p 6 l 10].
In this application, the applicant sought a declaration that the adjudicator’s decision be declared void, orders that it be set aside, and orders directing the adjudicator to decide the application on the merits. [p 3 l 45]–[p 4 l 5].
Whether a failure to serve an adjudication application goes to jurisdiction
Her Honour considered that the issue had to be decided by application of the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. [p 13 l 40]. The question was whether there was “a legislative purpose for rendering invalid an adjudication where there has not been compliance with section 21(5) [the service requirement], having regard to the language of the statute, its subject matter and objects and the consequences for the parties …”. [p 14 l 10]. In that regard, her Honour placed particular emphasis on the fact that the date on which an adjudication form was served provided a “reference point” by which other timeframes were calculated. [p 14 l 15]. For example, the adjudicator needed to know when 10 business days from the receipt of the respondent of the application form fell, in order to know whether they had all the material required to determine the application. [p 14 l 30–35], [p 15 l 15]. In the context of “a scheme designed to achieve the speedy and expeditious resolution of disputes”, those “time limits are critical”, and “[i]n those circumstances, I find that service under section 21(5) is required before an adjudication may be validly undertaken”. [p 16 l 30].
In other words, her Honour concluded that service of the application was required in order to confer jurisdiction on the adjudicator. [p 3 l 5].
Was the later service of the application sufficient to confer jurisdiction?
The applicant contended that its subsequent service of the application form (on 14 December 2018, 12 business days after the application had been made to the QBBC) conferred the requisite jurisdiction on the adjudicator. [p 16 l 35]. As to the time required for service, the applicant pointed out that no time limit was provided for in the Act. [p 17 l 35].
Ryan J considered that, in circumstances where the Act itself provided no time limit, it was “appropriate to rely upon the timeframe provided by the Acts Interpretation Act”. Section 38(4) of that Act provides that “[i]f no time is provided or allowed for doing anything, the thing is to be done as soon as possible…”. [p 18 l 5]. However, in this case it “cannot be said that that has occurred”. [p 18 l 5]. Her Honour concluded that “service within 12 business days when near contemporaneous service is contemplated within a scheme that imposes brutally fast timeframes” did not answer the description of “as soon as possible”. [p 18 l 20].
In summary, the adjudicator had been correct to conclude that service of the application was necessary to confer jurisdiction, and that service had not been achieved within the time required (“as soon as possible”). Accordingly, the application was dismissed. [p 3 l 5–10].