In J.R. & L.M. Trackson Pty Ltd v NCP Contracting Pty Ltd & Ors  QSC 201 the Queensland Supreme Court has clarified how security of payment adjudicators can use conferences when deciding a dispute.
This decision is of significance given the lack of legislative guidance and previous judicial consideration on point and may prompt an increased use of adjudication conferences.
NCP fell into a payment dispute with Trackson and applied for adjudication under the Building and Construction Industry Payments Act 2004 (Qld) (the Act). In support of its application, NCP relied on a statutory declaration of Mr Darren Hargreaves (a former Trackson employee).
The adjudicator exercised his discretion to call a conference of the parties under the Act. NCP attended the conference with its solicitor and Mr Hargreaves as a “support person”. These attendees had been permitted by the adjudicator.
Trackson objected to Mr Hargreaves’ attendance on the basis that, as a former employee of Trackson, Mr Hargreaves had a bias against it. The conference proceeded and an adjudication decision was made in favour of NCP.
Trackson applied to the Court for orders setting the adjudication decision aside. It argued that the conference had not been held in accordance with the Act because:
- Witnesses attended the conference (the Act only referred to a “conference of the parties”).
- Submissions had been made at the conference (the Act did not refer to submissions being made at a conference, and so, it was argued, only permitted written submissions).
Her Honour Justice Ryan considered Trackson’s view of the conference would render it of “extremely limited utility”.
Her Honour found that the Act’s reference to a “conference of the parties” was not intended to limit attendance to only the contracting parties. Witnesses with relevant expertise or factual knowledge may also attend (e.g. quantity surveyors, architects, building surveyors, project managers and building supervisors).
Her Honour adopted a broad view of the meaning of the word “submissions”, deciding that conference attendees may make submissions in response to matters raised by the adjudicator. It was held that the adjudicator had not erred by taking into account the submissions that had been made during the conference.
Trackson’s application was dismissed.
This decision will apply to conferences held under Queensland’s current security of payment legislation – the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIFA).
If you find yourself party to an adjudication where a conference is called, you should:
- Ensure that the issues to be addressed at the conference have been clearly identified. If this has not occurred, seek clarification from the adjudicator.
- Once the subject matter for the conference has been established, arm yourself with appropriate witnesses and experts. Confirm these proposed attendees with the adjudicator.
- Make a detailed record of what transpires during the conference. This may be needed if the adjudicator’s decision is challenged in court.
If a party to an adjudication wishes to be legally represented at a conference this should be raised as soon as possible after the conference has been called. (Under BIFA, a party is not entitled to legal representation at a conference unless allowed by the adjudicator.)
You can read the full decision here. The decision is currently under appeal.
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