Supreme Court New South Wales

• Medium Neutral Citation: Owners Strata Plan 61172 v Stratabuild Pty Ltd (No 2) [2011] NSWSC 1568
• Hearing dates: 23/06/2011
• Decision date: 19 December 2011
• Jurisdiction: Equity Division
• Before: Associate Justice Macready

Decision

(1)The defendant's application for an indemnity certificate pursuant to s 6 of the Suitors' Fund Act 1951 is dismissed.

(2)No order as to costs.

• Catchwords: COSTS - application for indemnity certificate pursuant to s 6 of the Suitors' Fund Act 1951 - appeal from adjudicator's determination under Building and Construction Industry Security of Payment Act 1999 - whether determination by adjudicator a decision of a "court" - held not a "court" for the purpose of s 6 - bankruptcy of applicant would also affect grant of certificate
• Legislation Cited: Building and Construction Industry Security of Payment Amendment Bill; Building and Construction Industry Security of Payment Act 1999; Building and Construction Industry Security of Payment Bill; Legal Profession Act 2004; Suitors' Fund Act 1951; Suitors' Fund Bill; Supreme Court Act 1970
• Cases Cited: Anderson Stuart v Treleaven [2000] NSWSC 536; Attorney General v British Broadcasting Corporation [1979] 3 All ER 45; Attorney General v British Broadcasting Corporation [1980] 3 All ER 161; Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497; Burringbar Real Estate Centre Pty Ltd v Ryder [2008] NSWSC 891; Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; Commissioner of Corrective Services v Government and Related Employees Tribunal (No 2) [2004] NSWCA 337; Hogan v Hinch (2011) 275 ALR 408; Hughes v Clubb (1987) 10 NSWLR 325; Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491; Production Spray Painting & Panelbeating Pty Ltd v Newenham; Reid v Sydney City Council (1995) 35 NSWLR 719; Skelton v Jones (No 4) [1966] 2 NSWLR 167; Tracey, Re [2011] NSWCA 43
• Texts Cited: Second reading speech for the Building and Construction Industry Security of Payment Amendment Bill, New South Wales Legislative Assembly, (Hansard) 12 November 2002 at 6541; Second reading speech for the Building and Construction Industry Security of Payment Bill, New South Wales Legislative Assembly, (Hansard) 29 June 1999 at 1594; Second reading speech for the Suitors' Bill, New South Wales Legislative Assembly, (Hansard) 1 May 1951 at 1699
• Category: Costs
• Parties: The Owners - Strata Plan No 61172 (Plaintiff); Strata Build Pty Ltd ABN 23 120 624 679 (First Defendant); Neil Whittle (Second Defendant); Adjudicate Today Pty Ltd ABN 39 109 605 021 (Third Defendant)
• Representation: M Christie SC with L Shipway (plaintiff); D Ash (defendants); MN Lawyers & Associates (first defendant); Mr Philip Davenport (second and third defendants); Crown Solicitor's Office (amicus curiae)
• File Number(s): 2011/128541

Judgment

1 I gave judgment in this matter on 25 August 2011 (Owners Strata Plan 61172 Stratabuild Ltd [2011] NSWSC 1000) and subsequently made orders declaring that an adjudication determination made by the second defendant pursuant to the Building and Construction Industry Security of Payment Act 1999 was void. The first defendant was ordered to pay the plaintiff's costs on the ordinary basis, except for the costs of the hearing, which were to be paid on an indemnity basis. There was an application by the first defendant for a certificate of under section 6(1) of the Suitors' Fund Act 1951.

2 As there was no contradictor to the application I sought the assistance of the Crown Solicitor and Mr Musico of that office appeared as amicus curie and made some helpful submissions. These were forwarded to the first defendant who responded to the submissions.

3 Section 6 of the Suitors' Fund Act provides:

"6 Costs of certain appeals

(1) If an appeal against the decision of a court:

(a) to the Supreme Court on a question of law or fact,

...

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

...

(2) Where a respondent to an appeal has been granted an indemnity certificate, the certificate shall entitle the respondent to be paid from the Fund:

(a) an amount equal to the appellant's costs of:

(i) the appeal in respect of which the certificate was granted, and also

(ii) where that appeal is an appeal in a sequence of appeals, any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted,

ordered to be paid and actually paid by the respondent: Provided that where the Director-General is satisfied that the respondent is unable through lack of means to pay the whole of those costs or part thereof or that payment of those costs or part thereof would cause the respondent undue hardship, or where those costs or part thereof have not been paid by the respondent and the Director-General is satisfied that the respondent cannot be found after such strict inquiry and search as the Director-General may require or that the respondent unreasonably refuses or neglects to pay them, the Director-General may, if so requested by the appellant or the respondent, direct in writing that an amount equal to those costs or to the part of those costs not already paid by the respondent be paid from the Fund for and on behalf of the respondent to the appellant and thereupon the appellant shall be entitled to payment from the Fund in accordance with the direction and the Fund shall be discharged from liability to the respondent in respect of those costs to the extent of the amount paid in accordance with the direction

...

(2A) The maximum amount payable from the Fund for any one appeal is:

(a) $20,000 in the case of an appeal to the High Court, or

(b) $10,000 in the case of any other appeal.

...

(7) An indemnity certificate shall not be granted in favour of:

(a) the Crown,

(b) a corporation that has a paid-up share capital of two hundred thousand dollars or more, or

(c) a corporation that does not have such a paid-up share capital but that, within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth, is related to a body corporate that has such a paid-up share capital, unless the appeal to which the certificate relates was instituted before the commencement of the Legal Assistance and Suitors' Fund (Amendment) Act 1970. "

4 The application of s 6 of the Suitors' Fund Act was recently discussed by Justice Hall in Burringbar Real Estate Centre Pty Limited v Ryder [2008] NSWSC 891 at [31]:

"[31] The exercise of the power under s 6 is dependent upon whether the unsuccessful defendants can establish three necessary requirements, namely, that there has been an appeal to this Court; that it is one against the decision of a court; and that it involves an appeal on a question of law or fact: see s 6(1), Suitors' Fund Act; see also Builders Licensing Board v Pride Constructions Pty Ltd [1979] 1 NSWLR 607 at 616 (although, at that time of that case, the discretion was limited to appeals involving questions of law). The word "appeal" for the purposes of this Act has been given an expanded meaning, defined to include "any motion for a new trial and any proceeding in the nature of an appeal": s 2, Suitors' Fund Act. "

Whether there has been an appeal on a matter of law or fact

5 The first matter to which attention must be drawn is whether the review of the adjudicator's decision constitutes an appeal for the purpose of section 6. Appeal is defined in section 2(1) of the Suitors' Fund Act in these terms:

" Appeal includes any motion for a new trial and any proceeding in the nature of an appeal."

6 This definition was discussed in Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal (No 2) [2004] NSWCA 337 at [9]:

"[9] By the definition in s 2(1) "appeal" includes "any proceeding in the nature of an appeal". Original proceedings invoking the supervisory jurisdiction of the Supreme Court by way of orders in the nature of prohibition and certiorari have been held to be appeals for the purposes of the Act, see ex parte Parsons (1952) 69 WN (NSW) 380, Production Spray Painting & Panelbeating Pty LtdvNewnham (1991) 27 NSWLR 644 and re Oscar [2002] NSWSC 887."

7 In Re Tracey [2011] NSWCA 43, Giles JA stated at [105] that an application for relief under section 69 of the Supreme Court Act 1970 is an appeal for the purposes of the Suitors' Fund Act (see also Production Spray Painting & Panelbeating Pty Ltd v Newenham (1991) 27 NSWLR 644 at 658).

8 Following these cases it is clear that the proceedings were in the nature of an appeal, not least because an order in the nature of certiorari was made pursuant to section 69 of the Supreme Court Act quashing the adjudication determination and an order in the nature of prohibition was also made permanently restraining the first defendant from taking any steps in relation to the determination. It is also clear that the appeal involved a question of law, namely the proper construction of the legislation.

Whether the decision of the adjudicator is a decision of a court

9 The main question is whether the decision of the adjudicator under appeal is a "decision of a court". In the Act there is the following inclusive definition of a court in these terms:

" Court includes such tribunals or other bodies as are prescribed."

10 None have been prescribed and it is therefore not clear, simply by having regard to the Suitors' Fund Act , whether the decision of the adjudicator under appeal is a "decision of a court".

11 In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 at 495 it was held that in interpreting the Suitors' Fund Act , the purpose of the Act must be kept in mind:

"The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow."

12 The purpose of the Suitors' Fund Act is readily identifiable from authorities such as Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd and from the second reading speech for the Suitors' Fund Bill (New South Wales Legislative Assembly, (Hansard) 1 May 1951 at 1699).

13 In the second reading speech the then Attorney General Mr Martin stated (at 1700) that the object of the Bill was "to relieve the individual of liability for costs of appeal where the appeal succeeds." He added:

"[If a person appeals] and if by his appeal it is established that the law as laid down in the first instance is wrong, he should not be called upon to bear that additional burden. Is that reasonable?"

14 He emphasised however (at 1701) that "not every appeal by any means will involve a payment from the fund" but that an indemnity certificate could only be issued where an appeal against the decision of a court on a question of law succeeds. (A certificate is now available on a successful appeal to the Supreme Court on a question of law or fact.)

15 In Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 511-14, 516; 69 ALR 125, Kirby P stated at 512:

"But is the Tribunal a "court" for the purpose of this section? The Tribunal is not called a "court". But it is the nature of the Tribunal and not its name which must determine whether it qualifies as a "court" for the purpose of this section. ... in Shell Oil Co of Australia Ltd v Federal Commissioner of Taxation [1931] AC 275. ... A number of "negative propositions" were enumerated (at 297) as useful on the determination of whether a body is in truth a court:

"1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is referred to another body."

See also Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69CLR185.

In the case of the present Tribunal all of the six features mentioned by Lord Sankey are present. The Tribunal applies established law to existing facts, found by it. It makes binding and final determinations between the disputing parties to the complaint. There is an appeal to the Supreme Court on a question of law. The Tribunal has power to make declarations of right, orders in the nature of injunctive relief and to award monetary compensation. True it is, there is no collection machinery. Under s 115 any amount ordered by the Tribunal to be paid may be registered as a judgment debt in a court of competent jurisdiction. However this is but one consideration: cf Trevor Boiler Engineering Co Pty Ltd v Mor/ey [1983] 1 VR716.

It is important to confine the determination of whether the Tribunal is a "court" to the question here in issue under the Suitors' Fund Act ..."

16 In that case, McHugh JA agreed with Kirby P and added some observations on whether the Tribunal was a "court" for the purpose of the Suitor's Fund Act 1951 at 515 to 516:

"Statutory interpretation may not be a creative art; but it has at least ceased to be a mechanical task. The Court's function is to give effect to the purpose of the Act. That function can not be performed by isolating the word "court" and asking whether the constitution and procedures of the Tribunal come within the supposed essence of that term. English nouns do not have the fixed meaning of scientific symbols. Dictionaries and decisions on the word "court" in other contexts are guides not determinants. The meaning of a statutory word or phrase is best ascertained when considered in its context and with the author's purpose in using it in mind.

In ordinary usage the word "court" has many meanings: they range from the group who form the retinue of a sovereign to an area used to play certain ball games. Legal usage also gives the word several meanings. Thus a "court" may refer to a body exercising judicial power as in the Constitution, Ch III, or to a body exercising non-judicial power such as the Coroners Court or to a court of petty sessions hearing committal proceedings. It may even refer to a body exercising judicial and arbitral powers such as the former Commonwealth Court of Conciliation and Arbitration or the Queensland Industrial Court. There is no a priori reason which prevents a body which determines rights and is presided over by a District Court judge from being a "court" even though it is not called a court and has lay members. Function and purpose, not labels, should be our guides.

Remedial legislation should be given a beneficial construction. In accord with that philosophy, the Supreme Court has given a liberal construction to the word "appeal" in the Suitors' Fund Act. Thus an application for a writ of prohibition to correct an error of law in a court of petty sessions is an "appeal" for the purpose of the Act: Ex parte Parsons; Re Suitors'Fund Act (1952) 69 WN (NSW) 380. So is a case stated by a court of Quarter Sessions to the Court of Criminal Appeal on a question of law arising out of a conviction in a court of petty sessions (Ex parte Neville; Re Suitors' Fund Act 1951-1960 (1966) 85 WN (Pt 1) (NSW) 372) or a case stated by an arbitrator to the Supreme Court: Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491. Even a reference from the Prothonotary, exercising delegated jurisdiction, to a judge in chambers is an "appeal" for the purpose of the Suitors' Fund Act: Onions v Government Insurance Office of New South Wales (1956) 73 WN (NSW) 270. The word "court" should likewise be given a liberal and beneficial construction to accord with the purpose and policy of the Act. The correct approach is for the Court to ask itself whether, bearing in mind the general purpose of the Suitors' Fund Act, Parliament must be taken-to have intended that the Tribunal should qualify as a court? I think that that question should be answered in the affirmative.

Whether the Tribunal is a "court" for purposes other than the Act is beside the point. What matters for the purpose of the Suitors' Fund Act is that a body which determines rights and is presided over by a judge of the District Court has made an error of law which has been corrected on appeal to the Supreme Court of New South Wales. To grant a certificate, at the request of the respondents, is to promote the purpose of the Act. To hold that the Tribunal is a "court" for the purpose of the Act contradicts no express or implied provision of the Act. The Court should, therefore, declare that the respondents are entitled to a certificate under the Act."

20 No reference was made in Dao's Case to the definition of "court" in the Act, presumably because it is simply an inclusive definition. In that case the Equal Opportunity Tribunal was held to be a court. See also Hughes v Clubb (1987) 10 NSWLR 325 at 333-4, which held that the Consumer Claims Tribunal was a court and Reid v Sydney City Council (1995) 35 NSWLR 719 in relation to the Government and Related Employees Appeal Tribunal.

17 The authorities therefore make the following principles clear:

(1) The functions and nature of the body under consideration determines whether is it a "court" for the purpose of the Suitors' Fund Act , not its name;

(2) The Suitors' Fund Act is beneficial legislation, and therefore the term "court" is to be interpreted generously;

(3) The purpose of the Suitors' Fund Act , to grant relief to certain litigants in relation to the costs incurred when unsuccessful on appeal, is relevant to the determination of whether a body is a "court" for the purpose of the Suitors' Fund Act .

18 In Attorney General v British Broadcasting Corporation [1979] 3 All ER 45, Eveleigh LJ considered that there are six hallmarks of an "inferior court" and said (at 55):

"In my opinion, the first is that [the tribunal] should have been created by the state. At one time courts were created or recognised by the monarch. Now they are created by Parliament. Thus, while an arbitration tribunal may contain many of the attributes of a court, it will lack this first essential one. Secondly, it must conduct its procedure in accordance with the rules of natural justice. Thirdly, that procedure will involve a public hearing with the power at least to receive evidence orally, to permit the oral examination and cross-examination of witnesses and to hear argument on the issues before it. Fourthly, it arrives at a decision which is final and binding as long as it stands. Fifthly, there will be two parties at least before it, one of whom may be the Crown, who are interested in the decision. Sixthly, the decision will be concerned with legal rights."

19 Whilst Eveleigh LJ's conclusion as to the issue in dispute in that matter was overturned on appeal, his criteria were not disapproved by the House of Lords. I believe they are helpful in attempting to identify common characteristics that a "court" must possess.

20 The first defendant submitted that, because "a taxing officer of a court" is deemed to be exercising the jurisdiction of a court of first instance for the purpose of the Suitors' Fund Act (see s 6(1B)), a costs assessor is a "court" for the purpose of that Act, and if that is correct, then an adjudicator is also a "court".

21 I do not accept this submission. First, it requires me to accept that a costs assessor is a "court" for the purpose of the Act. This would require an analysis of the functions and nature of a costs assessor. Second, without entering into that determination, a costs assessor differs from a taxing officer in important respects. For example, a taxing officer is an officer of the Supreme Court of New South Wales (s 121 of the Supreme Court Act ) but a costs assessor is not (s 390(4) of the Legal Profession Act 2004).

22 It is more appropriate to focus on the functions and nature of the adjudication process.

Features of the adjudicator and the adjudication process

23 In the present case, the nominating authority, Adjudicate Today, was authorised by the Minister under section 28 of the Building and Construction Industry Security of Payment Act to nominate the adjudicator to determine the adjudication application.

24 The function and purpose of the Minister authorising a nominating authority is to give effect to the objects of the Building and Construction Industry Security of Payment Act which are set out in section 3. One means by which the Act achieves its purpose of ensuring that a person is able to recover a progress payment is by the referral of a disputed claim to an adjudicator for determination (s 3(3)(c)).

25 Sections 21 and 22 detail the powers and functions of the adjudicator. An adjudicator is limited by section 22 of the Building and Construction Industry Security of Payment Act to only consider the provisions of that Act, the construction contract, the related payment claim and payment schedule, submissions and the results of any inspections. Therefore the adjudicator is required to apply established law to the facts found by it. He or she must also provide written reasons (s 22(3)(b)).

26 In Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 his Honour Spigelman CJ discussed the supervisory jurisdiction of the Supreme Court in respect of an adjudicator's decision at [3] and found that:

"The supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 can be invoked with respect to the exercise of statutory powers and the conduct of statutory procedures, whether or not the person to whom any orders equivalent to the prerogative writs are to be directed is a public officer. The position is, if anything, more clear when, as here, that person is appointed by an "authorised nominating authority" (s 17 of the Building and Construction Industry Security of Payment Act 1999 ("the Act")), which is itself appointed as such by a Minister of the Crown (s 28)."

27 His Honour Spigelman CJ also discussed whether there needed to be a requirement that the adjudicator act judicially if such a jurisdiction was to be exercised. He held:

"[10] The critical issue is whether the relevant decision-maker is exercising public power, relevantly, a statutory power. There is no longer a requirement that there be an identifiable, additional element that the relevant decision-maker has a duty to act judicially before that decision-maker is amenable to the prerogative writs. I do not share the doubt expressed by the learned authors Mark Aronson, Bruce Dyer and Matthew Groves Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co at [12.120] as to whether the superadded duty has been authoritatively rejected in Australia.

...

[19] There is no additional element required. As Basten JA has recently said, references to a "duty to act judicially" reflect the "language of an earlier age". (Sydney Ferries Corp v Morton [2010] NSWCA 156 at [79].) With respect to the line of authority to the effect that the supervisory jurisdiction will not be exercised in the case of committal proceedings, to which Aronson et al refer supra at [12.20], that authority should be understood as based on the policy of preventing fragmentation of the criminal justice process."

28 Basten JA dealt with the matter as follows:

"(b) duty to act judicially

[82] There is a further question as to whether it is necessary to determine that the adjudicator had a duty to "act judicially", in order to be amenable to public law remedies of certiorari and prohibition. The criterion of a duty to act judicially is drawn from the judgment of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 205. Atkin LJ described the writs as operating wherever "any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority". With respect to the requirement to "duty to act judicially", Aronson, Dyer and Groves state that Australian cases "have not yet dispensed with" that element: Judicial Review of Administrative Action (4th ed, 2009) at [12.120]. However, that may be because it has been overtaken by other developments, which have rendered it otiose.

[83] There has been a significant weakening of the nature of the affectation of legal rights since Lord Atkin wrote. A recommendation of an administrative body which a final decisionmaker is required to take into account will have the requisite legal effect upon rights to attract certiorari: Hot Holdings Pty Ltd v Creasy [1996] HCA 44 ; 185 CLR 149 at 165 (Brennan CJ, Gaudron and Gummow JJ). Further, the element could have arisen in numerous cases in which certiorari has been sought in relation to the decisions of Ministers, administrative decision makers, local councils and similar bodies where it has not only not been raised, but where the occasion has passed without comment. Finally, there is a question as to what such a duty would now refer to, given the different constitutional environment of administrative law in Australia and having regard to legal developments in the last 85 years. Such language has been used on occasion to identify circumstances attracting the duty to accord procedural fairness.

[84] Although it may be unnecessary to determine in this case whether there is any requirement to identify a duty to act judicially, and what may be encompassed by the outer limits of such a requirement, I agree with the analysis of Spigelman CJ at [9]-[16] above. In any event, there seems little doubt that the adjudicator, in exercising a statutory function of determining the amount of a progress payment and the date on which such amount becomes payable, would fall comfortably within the scope of such a requirement, so as to engage, for example, an obligation to give reasons (were there no statutory requirement to that effect - see Security of Payment Act, s 22(3)(b)): see Campbelltown City Council v Vegan [2006] NSWCA 284 ; 67 NSWLR 372 at [20] (Handley JA) and at [104]-[109]."

29 McDougall J at [260] agreed with the analysis of the other members of the Court.

30 We thus have the obiter conclusion of Basten JA that an adjudicator has an obligation to act judicially, even if those words refect the language of an earlier age.

31 Section 25 of the Building and Construction Industry Security of Payment Act provides that an adjudication certificate may be filed as a judgment for a debt in any court of competent jurisdiction and is enforceable accordingly. Section 25(4) states that if a respondent commences proceedings to have the judgment set aside, the respondent cannot bring any cross-claim against the claimant, raise any defence in relation to matters arising under the construction contract, or challenge the adjudicator's determination and the respondent is required to pay into court the unpaid portion of the adjudicated amount as security pending the final determination of those proceedings.

32 I accept, as submitted by the first defendant, that pursuant to these provisions, an adjudication certificate appears to be a final determination in relation to an adjudicated progress payment, subject to an appeal on a question of law or the exercise of the adjudicator's powers, if the adjudication certificate is filed with a court of competent jurisdiction. However, I qualify my acceptance of this proposition below because pursuant to the Building and Construction Industry Security of Payment Act the parties retain their rights to initiate civil proceedings in relation to the total amount owing under a construction contract.

33 The Court may set aside an adjudication where it is not valid (as I found in relation to this matter). Therefore, the supervisory jurisdiction of the Supreme Court applies; that is the "appeal" from the adjudication.

21 In summary, the adjudicator:

1. Applies established law to established facts.

2. Makes findings and final determinations between disputing parties to the proceedings, in relation to progress payments, where the adjudication certificate is filed with a court of competent jurisdiction (subject to final determination of the total amount payable).

3. Makes determinations that can be regulated as an order of the District Court.

4. H as a duty to act judicially and to give reasons.

5. Make determinations that can be appealed in a limited way.

6. Is subject to the supervisory power of the Supreme Court.

34 These features are shared by other bodies recognised as "courts". However, there a features of the adjudication process that suggest that a decision of an adjudicator is not a decision of "a court" for the purposes of the Suitors' Fund Act , to which I will now refer .

Whether adjudication can provide a final determination

35 It is not clear that a determination of an adjudicator is more than an interim determination, which will exist if, and until, a final determination is sought through other means (either through civil proceedings or by filing an adjudication certificate).

36 According to the second reading speech for the Building and Construction Industry Security of Payment Bill , t he purpose of legislating the adjudication process as to progress payments was to provide for a "much faster process by giving an interim decision on disputes over progress payments, and fixing the amount of the debt".

37 Initially, adjudicated amounts did not have to be paid to the successful party immediately. However, since the enactment of the Building and Construction Industry Security of Payment Act steps have been take by the legislature to ensure that a determination by an adjudicator is enforceable by a party who obtains it. I have already referred to the provision for the filing of an adjudication certificate with a court pursuant to s 25.

38 Section 32 sets out the effect of the adjudication process relating to progress payments on other remedies available to the parties to a constructions contract. In particular, it states that the adjudication process does not affect any right that a party may have under the contract, or under Part 2 of the Act in respect of the contract, or in respect of anything done or omitted to be done under the contract.

39 The adjudication process does not affect civil proceedings arising under a construction contract, whether under this Part or otherwise, except to the extent that a court or tribunal must allow for any payment made pursuant to an adjudicator's determination and may make orders for the restitution of that amount if it considers that appropriate. Therefore, the adjudication is only a limited final determination of the parties' rights.

40 The second reading speech for the Building and Construction Industry Security of Payment Amendment Bill (New South Wales Legislative Assembly, (Hansard) 12 November 2002 at 6541) provides some indication that the legislature did not consider the decision of an adjudicator do be considered as that of a court:

"Presently, when a respondent fails to pay the claimant by the due date for payment under the contract, the claimant's only recourse to enforce payment is to commence proceedings in a court. The bill will give the claimant another option. The claimant will be able to opt to have an adjudicator determine the amount of the progress payment that is due. This is an "optional adjudication". The claimant will still be able to proceed to adjudication earlier if the respondent provides a payment schedule and the scheduled amount is less than the amount claimed. The benefit to the claimant of proceeding with an optional adjudication rather than commencing proceedings in a court is that the claimant will then be able to use the adjudication certificate to obtain judgment expeditiously and without a court hearing." (emphasis added)

41 The purpose of the adjudication process was always to provide a quicker way for parties in the construction industry to resolve disputes. It seems that the legislature intended the adjudication process to remain in parallel with the enforcement of rights in a court.

Other features of the adjudication process

42 In the second reading speech to the Building and Construction Industry Security of Payment Bill (New South Wales Legislative Assembly, (Hansard) 29 June 1999 at 1594), the then Minister for Public Works and Services, Mr Iemma, described the process of adjudication as follows:

"...the process is not judicial, the provision of the Commercial Arbitration Act 1984 do not apply, and there is no power to call for witnesses or for evidence under oath."

43 Mr Musico, as amicus curiae, helpfully summarised some salient features of the adjudication process that raise doubts as to whether a decision of an adjudicator can be a decision of a "court". Some of these features are as follows:

(i) The adjudicator does not hear witnesses on oath and cannot compel the attendance of witnesses;

(ii) Parties do not appear before an adjudicator;

(iii) The process is not held in public;

(iv) The adjudicator is not required to consider rules of evidence;

(v) The adjudicator has no power to enforce an award.

44 Pursuant to s 21(4)(c) of the Building and Construction Industry Security of Payment Act an adjudicator may call a conference with the parties. "Conference" is not defined in that Act, however it is apparent that it would not amount to a hearing in which parties appear before the adjudicator. Even in tribunals which dispense of excess formality, such as the Consumer, Trader and Tenancy Tribunal, parties appear before the member. The method of determination suggests that an adjudicator is not a "court".

45 Additionally, there is no provision for public sittings of the adjudicator. The High Court recently discussed the principle of open justice in Hogan v Hinch (2011) 275 ALR 408. French CJ said at [20]:

"An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny."

46 Whilst I acknowledge that there are limitations to the principle of open justice, public access to hearings appears to be a common attribute between bodies that have been held to be "courts" for the purpose of the Suitors' Fund Act . For instance, hearings are generally conducted in public at the Consumer, Trader and Tenancy Tribunal and at the Administrative Decisions Tribunal.

47 Section 18 requires an adjudicator to be a suitably qualified person and it imposes an obligation that the adjudicator is impartial to the particular construction contract. That section reads:

"18 Eligibility criteria for adjudicators

(1) A person is eligible to be an adjudicator in relation to a construction contract:

(a) if the person is a natural person, and

(b) if the person has such qualifications, expertise and experience as may be prescribed by the regulations for the purposes of this section.

(2) A person is not eligible to be an adjudicator in relation to a particular construction contract:

(a) if the person is a party to the contract, or

(b) in such circumstances as may be prescribed by the regulations for the purposes of this section."

48 No qualifications, expertise or experience has been prescribed. Therefore, an adjudicator does not need to have particular qualifications under the Act. The suitability of a prospective adjudicator is therefore decided by an nominating authority, authorised to appoint adjudicators pursuant to s 28 of the Act.

49 In Anderson Stuart v Treleaven [ 2000] NSWSC 536 at [14], Santow J appears to have considered the qualifications of the decision-makers in the Strata Titles Board in reaching his conclusion that that body was a "court" for the purpose of the Suitors' Fund Act . His Honour said:

"I take note of the First Defendants' submission that there is a stronger case for the Board to be classified as a "court" for the purposes of the Act then there is for the Strata Schemes Board. As was submitted:

(i) the Strata Schemes Board consists not only of persons who are magistrates, but also of persons who are merely qualified for appointment as magistrates (s220(2) Strata Schemes Management Act 1996), whereas the Board was constituted only by magistrates (s98A Strata Titles Act 1973) ..."

50 I see the fact that an adjudicator under the Act requires no specific qualifications as a factor that points towards an adjudicator not being a "court" for the purpose of the Suitors' Fund Act. I note that a lack of legally qualified members is not determinative of a body not being a court: see Attorney General v British Broadcasting Corporation [1980] 3 All ER 161 at 166. However generally where a body is not presided over by someone who is legally trained, someone with specific experience or qualification will preside, such as a medical practitioner in the case of the Medical Tribunal on which two medical practitioners always sit.

51 More generally, in Chase Oyster Bar v Hamo Industries Pty Ltd [2010] NSWCA 190 Basten JA remarked at [65] that it is clear from the Building and Construction Industry Security of Payment Act that:

"... an adjudicator is not an officer of the government, is not nominated by an officer of the government and is not paid by the government for exercising statutory functions. Nor does the government have any power to control an adjudicator, either when exercising statutory functions, or otherwise."

52 Many members of the tribunals recognised as a "court" for the purpose of the Suitors' Fund Act are nominated by an officer of the government, such as members of the Consumers, Trader and Tenancy Tribunals (other than the Deputy Chairperson) who are appointed by the Governor. The President and Deputy Presidents of the Administrative Decisions Tribunal are also appointed by the Governor. Members of that tribunal are appointed by the Minister. In the case of an adjudicator, their nomination is one step removed from a nomination by an officer of the government. They are appointed by a nominating authority, which is authorised by the Minister to nominate adjudicators.

53 Also relevant here, in reaching his decision in Anderson Stuart v Treleaven that the Strata Titles Board was a court for the purpose of the Suitors' Fund Act, Santow J took into account the fact that the Board had a statutory power to punish for contempt. An adjudicator has no such power.

54 An additional, less determinative, factor that may be relevant to the question of whether the decision of the adjudicator is a "decision of a court" relates to the operation of the system set up by the Suitors' Fund Act. In the second reading speech to that Act, the then Attorney-General Mr Martin made it clear that the Act would operate in a way akin to how insurance operates (at 1700-1701):

"It is litigants who will benefit from the fund's existence and so it is reasonable to ask that litigants should contribute to it. In effect, it will be a form of insurance: every litigant will pay some slight additional court fees by way of a premium, as it were, to insure himself against a possible liability for appeal costs incurred through no fault of his."

55 This is relevant because it is not clear that the first defendant would have had to pay such a "premium" as part of the fees paid for the adjudication. The contributions to the fund are regulated by s 5 of the Suitors' Fund Act under which a percentage of fees of court collected in "any court or in any jurisdiction of any court" paid into consolidated revenue will be contributed to the fund. Submissions were not made as to whether any contribution to the fund would have been made and, if not, whether this points against recognition of the adjudicator's decision as a decision of a "court" for the purposes of the Suitors' Fund Act.

56 After balancing the factors set out above, I am not satisfied that the determination of the adjudicator was a decision of a "court" for the purposes of the Suitors' Fund Act. I therefore dismiss the first defendant's application.

Relevance of applicant's bankruptcy

57 It is now common ground that since the hearing a liquidator has been appointed to the first defendant. The relevance of this is that an indemnity certificate should not be granted if the only effect of that grant is that moneys paid from the Suitors' Fund would be used to benefit the first defendant's general creditors: Skelton v Jones (No 4) [1966] 2 NSWLR 167.

58 In that case the court granted an indemnity certificate to a deceased litigant's official receiver. However, Sugerman JA gave the following direction:

"But the application should only be granted upon an undertaking by the present applicant that he will make a request [for]...a direction that an amount equal to the costs not already paid by the respondent in the appeal, within the statutory limit, be paid for and on behalf of the respondent to the appellant therein. As a matter of the discretion conferred by s 6 (5) of the Act, an indemnity certificate should not be granted in a case such as the present if the only result of its granting would be to swell the funds available for the satisfaction of the general creditors of the bankrupt respondent leaving the successful appellant only with a right to prove in the bankruptcy and obtain a dividend. Subject, therefore, to the giving of the undertaking, I shall make an order for the granting of an indemnity certificate to the present applicant; no order as to costs."

59 Had an indemnity been granted in this case, it would have been subject to the same direction.

Order

60 I order that the defendant's application for an indemnity certificate pursuant to s 6 of the Suitors' Fund Act 1951 be dismissed.

61 I make no order as to costs.

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Decision last updated: 19 December 2011