Supreme Court New South Wales

• Medium Neutral Citation: Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd [2011] NSWSC 195
• Hearing dates: 9 March 2011
• Decision date: 23 March 2011
• Before: Ball J

Decision

Defendant's motion filed on 17 February 2011 dismissed with costs

• Catchwords: ARBITRATION - Arbitration agreement - whether parties agreed to submit dispute under s 15(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 to arbitration.; BUILDING AND CONSTRUCTION CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - whether dispute under s 15(2)(a)(i) of the Act arbitrable - whether proceedings under s 15(2)(a)(i) should be stayed.
• Legislation Cited: Building and Construction Industry (Security of Payment Act) 1999; Civil Procedure Act 2005; Commercial Arbitration Act 1984; Commercial Arbitration Act 2010; Corporations Act 2001 (Cth); Home Building Act 1989; Industrial Relations Act 1996; Insurance Contracts Act 1984 (Cth); Trade Practices Act 1974; Uniform Civil Procedure Rules
• Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; 67 NSWLR 9; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 157 FCR 45; Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 801; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Geaghan v D'Aubert [2002] NSWCA 260; (2002) 36 MVR 542; Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279; Government Insurance Office of New South Wales v Atkinson-Leighton Joint Venture (1979-81) 146 CLR 206; IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466; Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363; Metrocall Inc v Electronic Tracking Systems Pty Ltd [2000] NSWIRComm 136; Tridon v Tridon Australia [2002] NSWSC 896
• Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia, 5th ed (2001) Butterworths; New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 June 1999; K Lewison, The Interpretation of Contracts, Sweet & Maxwell, London, 2007, 4th ed, 275f
• Category: Procedural and other rulings
• Parties: Siemens Ltd (ACN 004 347 880 (Plaintiff); Origin Energy Uranquinty Power Pty Ltd (ACN 120 384 938) (Defendant)
• Representation: Counsel: Mr SA Kerr SC (Plaintiff/Respondent); Mr TJ Breakspear (Plaintiff/Respondent); Mr J Rowland QC (Defendant/Applicant); Mr RC Scruby (Defendant/Applicant); Solicitors: Norton Rose (Plaintiff/Respondent); Clayton Utz (Defendant/Applicant)
• File Number(s): 2011/31067

Judgment

1 This is an application by the defendant, Origin, for the stay of these proceedings under s 8 of the Commercial Arbitration Act 2010 (the CA Act 2010). In the proceedings, the plaintiff, Siemens, seeks to recover amounts that were the subject of two payment claims made in accordance with the Building and Construction Industry (Security of Payment Act) 1999 (the SOP Act ). It does so on the basis that that Origin failed to provide a payment schedule in response to the claims within the time specified in s 14(4) of the SOP Act and that, as a result, it is entitled to recover the claimed amounts as a debt due to it under s 15(2)(a)(i) of that Act.

2 The application for a stay under s 8 of the CA Act 2010 raises two issues. The first is whether the parties agreed to refer the dispute arising under s 15(2)(a)(i) of the SOP Act to arbitration. The second is whether that dispute is arbitrable. If the answer to both those questions is yes, it is clear that s 8 of the CA Act 2010 requires the court to stay these proceedings.

3 In the alternative to a stay under s 8 of the CA Act 2010, Origin seeks an order either pursuant to s 67 of the Civil Procedure Act 2005 or in the exercise of the court's inherent jurisdiction staying the proceedings. Finally, Origin submits that, if the proceedings are not stayed, the court should refer the matter out to the arbitrators chosen by the parties pursuant to UCPR rule 20.14.

Factual background

4 On 18 December 2006, the parties entered into a contract by which Siemens agreed to provide four gas turbines and associated equipment and services in connection with the construction by Origin of the Uranquinty power station located in the Riverina region of New South Wales.

5 The contract, which was amended on a number of occasions, provided in cl 8.6 for progress payments for the work to be performed by Siemens.

6 The final payment (aside from a bonus payment) was to be made when the power station achieved what was described in the original contract as "Commercial Operation Unit 14", but which in an amendment to the contract made on 30 April 2007 is referred to as "Practical Completion Unit 14". Under cl 16.7(e) of the contract, the works, in order to achieve that milestone, were required to achieve "Environmental Guarantees". The Environmental Guarantees included guarantees in relation to how much noise would be emitted from the power station under what were described as "base load conditions". The contract set out how and under what conditions the noise would be measured and the maximum permissible level of noise under those conditions. Those requirements were amended by the parties by the amendment agreement entered into on 30 April 2007. The precise details of what was agreed are not important to the present application.

7 Clause 36 of the contract sets out a dispute resolution procedure. The parties are first required by clause 36.2 to have without prejudice meetings in an attempt to resolve any dispute. Clause 36.3 provides that, in the event the parties fail to resolve the dispute, "either Party may refer the Dispute to arbitration by providing the other Party with an Arbitration Notice". "Dispute" is defined in clause 36.1(b) to mean:

... any dispute, difference, issue or disputed Claim between the parties concerning or arising out of or in connection with or relating to this Contract or the subject matter of this Contract or the existence, breach, termination, validity, repudiation, rectification, frustration, operation or interpretation of this Contract, including, without limitation, any claim:

(i) in contract, tort (including negligence), equity (including unjust enrichment) or otherwise;

(ii) pursuant to any applicable state, territory, Commonwealth, foreign or international statute or law; or

(iii) for damages, compensation, restitution or adjustment of the Contract Price.

"Claim" is defined in the same terms in clause 35.1 - that is, as being any claim submitted by the Contractor in writing "concerning or arising out of or in connection with or relating to this Contract or the existence, breach" etc. "Arbitration Notice" is defined in clause 36.1(a) to mean:

... a notice in writing specifying the Disputes(s) to be referred to arbitration and attaching a copy of the relevant Dispute Notices(s).

"Dispute Notice" is defined in clause 36.1(c) to mean:

... a notice in writing providing sufficient details about the Dispute for the other Party to reasonably understand the:

(i) alleged facts on which the claim is based;

(ii) legal basis on which the claim is made; and

(iii) relief that is claimed.

8 Clause 36.3(d) provides:

The arbitration shall:

(i) take place in Brisbane in the State of Queensland; and

(ii) be governed by the laws of Queensland, including the Commercial Arbitration Act 1990 (Qld).

9 Clause 36 has been amended by the parties in circumstances that I will describe below.

10 Clause 43.5 of the contract provides:

(a) This Contract will be construed in accordance with and be governed by, and the rights of the parties construed in accordance with the laws of New South Wales.

(b) The Parties hereby submit to the non-exclusive jurisdiction of the courts of the State of New South Wales.

11 On 23 December 2008, Siemens wrote to Origin enclosing an acoustical test report which indicated that the power station met the acoustic requirements of the Environmental Guarantees (as amended).

12 On 24 December 2008, Origin issued a Commercial Operation Certificate in respect of Unit 14. One consequence of that certificate is that, under clause 16.11(b) of the contract, Origin is not entitled to liquidated damages from the time the certificate was issued.

13 On 7 January 2009, Siemens delivered a Request for Payment in respect of Practical Completion of Unit 14. The amount claimed was expressed in various currencies and totalled approximately $6 million. The accompanying tax invoice stated that the claim was made under the SOP Act.

14 On 2 February 2009, Origin obtained a copy of a draft report prepared by Heggies Pty Ltd, an acoustic consultant retained by ERM Power, the consultant engaged by Origin. According to that draft report, the power station did not meet the acoustic requirements of the contract. Subsequent testing supports the conclusions of Heggies' draft report.

15 On 6 February 2010, Siemens made a second payment claim. The claim, which was for approximately $100,000 and which again was expressed in various currencies, was for interest on the first claim. Again, the accompanying tax invoice stated that the claim was made under the SOP Act.

16 After receiving the draft Heggies report, Origin, on 2 March 2009, served a Dispute Notice on Siemens under cl 36 of the contract. In that Dispute Notice, Origin asserted in substance that:

the power station did not comply with acoustic requirements of the contract;

by providing Origin with the report dated 23 December 2008, Siemens engaged in misleading and deceptive conduct which caused Origin to issue the Commercial Operations Certificate in respect of Unit 14 and that, as a consequence, Origin was entitled to an order pursuant to s 87 of the Trade Practices Act 1974 adjusting the contractual rights of the parties so that they were to be determined as if no certificate had been issued and to damages under s 82 of that Act.

17 There were then discussions and correspondence between the parties. On 1 June 2009, Origin issued a notice under cl 22.3 of the contract to the effect that the power station was non-conforming and requiring Siemens to rectify it. Siemens subsequently agreed to undertake remediation work, which it did during the later part of 2009 and the early part of 2010. On 25 June 2010, it advised Origin that it had completed the remediation work. Origin arranged for further acoustic testing to be conducted. It maintains that, according to those tests, the power station still does not comply with the acoustic requirements set out in the contract; and it appears that it now proposes to undertake the remediation work itself.

18 Following further correspondence between the parties, the parties agreed on or about 21 December 2010 to amend cl 36 of the contract. The amended cl 36.3(a) provides:

(a) Any dispute arising prior to 20 December 2010, is hereby referred to arbitration. Any other dispute shall be resolved by the parties taking the steps set out in clause 36.1 to 36.2. After these steps, if:

(i) the Dispute remains unresolved following the meeting of the Designated Officers referred to in clause 36.2(d); or

(ii) the meeting of the Designated Officers referred to in clause 36.2(d) does not take place for whatever reason within forty (40) Business Days (or such longer period as may be agreed by the Parties) of delivery of the Dispute Notice,

either Party may refer the Dispute to arbitration by providing the other Party with an Arbitration Notice.

The clause goes on to provide how the arbitration is to occur. Clause 36.3(d) provides that the arbitration is to take place in Melbourne and is to be governed by the laws of Victoria (rather than in Brisbane and by the laws of Queensland). Clause 36.4 gives the arbitral tribunal power to issue interim awards.

19 Siemens then commenced these proceedings on 31 January 2011.

Did the parties agree to submit the current dispute to arbitration?

20 Before answering this question, it is necessary to say something more about the current proceedings.

21 The structure of the SOP Act is that a contractor who becomes entitled to a progress payment may serve a payment claim under s 13. Under s 8 of the Act, the right to a progress payment only accrues on and from each "reference date" - that is, relevantly, a date determined in accordance with the contract as a date on which a progress payment is due. The claim must state that it is served under the Act and must be served within 12 months after the construction work to which the claim relates was last carried out or within the period specified by the contract, whichever is the later. The respondent to the claim then has 10 days (or such lesser time as is provided in the contract) to serve a payment schedule indicating the amount that the respondent is willing to pay and, if it is not willing to pay the full amount claimed, the reasons. Section 15 applies if the respondent does not serve a payment schedule within time. Section 15(2) provides that the claimant may either recover the amount claimed "as a debt due to the claimant, in any court of competent jurisdiction" (s 15(2)(a)(i)) or make an adjudication application under s 17(1)(b) in relation to the payment claim (s 15(2)(a)(ii)). Section 15(4) provides:

If the claimant commences proceedings under subsection (2)(a)(i) to recover the unpaid portion of the claimed amount from the respondent as a debt:

(a) judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1) [that is, that the time for serving a payment schedule has expired and the claim has not been paid in full], and

(b) the respondent is not, in those proceedings, entitled:

(i) to bring any cross-claim against the claimant, or

(ii) to raise any defence in relation to matters arising under the construction contract.

22 Siemens commenced the current proceedings seeking relief under s 15(2)(a)(i). Origin seeks to defend the proceedings on two bases. First, it says that there was no relevant reference date because the acoustical requirements set out in the contract had not been met. Second, it says that it was induced not to serve a payment schedule by Siemens' misleading and deceptive conduct in serving what is said to be an erroneous acoustical test report. In doing so, it relies on the decision of the Court of Appeal in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; 67 NSWLR 9. In that case, the Court of Appeal held that it was possible to raise misleading and deceptive conduct as a defence to a claim under s 15(2)(a)(i) (and not simply by way of cross-claim) and that that defence did not arise under the construction contract and so was not prohibited by s 15(4)(b)(ii). Siemens takes issue with these defences. It points out that the entitlement to make a payment claim is given " not just to someone ... entitled to a progress payment but to someone who claims to be so entitled" (to use the words of McDougall J in Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 801 at [20]). As a result, it says that there can be no merit in the first defence. Nor can there be any merit in a defence that relies on the Trade Practices Act to vitiate the reference date, since the existence of a reference date is not necessary to enforce the statutory debt arising from the payment claim. Whether that is a correct characterisation of the defence based on the Trade Practices Act is doubtful. In any event, it is not an issue that needs to be resolved in the context of the current application. The essential point is that, in light of the decision of the Court of Appeal in Bitannia , there is an arguable case that Origin has a defence to Siemens claim that is not barred by s 15(4)(b)(ii) of the SOP Act. The question is whether the parties agreed to submit the dispute raised by Siemens' claim and that defence to arbitration. In my opinion, they did.

23 Although the seat of the arbitration is Melbourne and the laws of the arbitration are those of Victoria, both parties accepted that the arbitrators are bound to apply New South Wales law, including the SOP Act.

24 The nature of the disputes that may be submitted to arbitration is expressed very broadly in cl 36.1(b) of the contract. It includes any dispute "concerning or arising out of or in connection with or relating to this Contract or the subject matter of this Contract". Each of the expressions "concerning", "arising out of", "in connection with" and "relating to" are expressions of wide meaning. Moreover, arbitration clauses are generally construed widely. As Allsop J (with whom Finn and Finkelstein JJ agreed) explained in Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 157 FCR 45 at [165]:

This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places. ... The benevolent and encouraging approach to consensual alternative non-curial dispute resolution assists in the conclusion that words capable of broad and flexible meaning will be given liberal construction and content.

Similarly, Gleeson CJ (with whom Meagher and Sheller JJA agreed) said in Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165:

Where the parties to a commercial contract agree, at the time of making the contract, and before any disputes have arisen, to refer to arbitration any dispute or difference arising out of the agreement, their agreement should not be construed narrowly. They are unlikely to have intended that different disputes should be resolved before different tribunals, or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument.

25 On its face, it seems to me that a dispute about whether Origin should make a progress payment under the contract is a dispute concerning etc the contract or the subject matter of the contract. The fact that it could also be said to be a dispute that arises out of the SOP Act does not make the dispute any less one that is concerned with or connected with the contract or its subject matter. The arbitration clause only requires the dispute to have a particular character (or, perhaps more accurately, one or more of a number of characters). The fact that it may be possible to characterise the dispute in other ways does not deprive it of the character required by clause 36.1(b) of the contract.

26 There is a question in this case whether disputes under the SOP Act are arbitrable. I deal with that question below. Generally, where a contract is ambiguous, a court will prefer an interpretation which makes the contract lawful to one that does not: see K Lewison, The Interpretation of Contracts, Sweet & Maxwell, London, 2007, 4 th ed, 275f; Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279 at [102] per Mason P, dissenting. In this case, however, there is no ambiguity in cl 36.1(b). It is expressed in broad terms; and, in my opinion, the parties intended by that clause to refer all disputes concerning the contract and its subject-matter to arbitration.

27 It is true that the Court of Appeal held in Bitannia at [124] that a defence under the Trade Practices Act that service of a payment claim was not effective because it involved misleading and deceptive conduct was not a defence in relation to matters arising under the construction contract for the purposes of s 15(4)(b)(ii) of the SOP Act. However, the dispute in this case must take its character not simply from the defence, or one of the defences, raised by Origin. It must also take its character from Siemens' claim. That claim is a claim connected with the contract, since it is a claim for money said to be due under the contract. Moreover, the fact that the Court of Appeal held that the words "a matter arising under the construction contract" as used in s 15(4)(b)(ii) of the SOP Act were not sufficiently broad to catch a defence based on the Trade Practices Act does not mean that the words "concerning or arising out of or in connection with or relating to this Contract or the subject matter of this Contract" as they appear in an arbitration clause were not sufficiently broad to do so. The use of a series of connectors in the arbitration clause, each generally regarded as being broad, is a clear indication that the parties intended the clause to operate as broadly as possible.

28 Siemens says that, at the time the arbitration clause was drafted, a dispute under the SOP Act could not be made the subject of arbitration and that cl 36 must be interpreted in that light. At the time the original contract was entered into, arbitrations were governed by the Commercial Arbitration Act 1984 (the CA Act 1984 ). Section 3(8) of that Act (which was inserted by the SOP Act at the time it was passed) provided:

Nothing in this Act affects the operation of Part 3 of the Building and Construction Industry Security of Payment Act 1999 .

There is no equivalent provision in the CA Act 2010.

29 Siemens submits that the effect of s 3(8) of the CA Act 1984 is that a dispute concerning the SOP Act was not arbitrable at the time the contract was entered into and that cl 36 should not be interpreted as an agreement to submit to arbitration a dispute that was not arbitrable at that time.

30 In my opinion, there are three difficulties with that submission.

31 First, as I have already said, there is no ambiguity in cl 36.1(b) that would permit the court to read the clause down in the way contended for by Siemens.

32 Second, it is not obvious that s 3(8) of the CA Act 1984 has the meaning contended for by Siemens. The SOP Act provides for a right to obtain progress payments and provides a procedure for resolving disputes concerning that right. Section 3(8) of the CA Act 1984 states that that Act does not affect that right or that procedure. That might have been thought to have been necessary because both Acts provide for a form of dispute resolution, and the legislature may have been concerned to make sure that the procedure under the CA Act 1984 could not be used as a substitute for the procedure available under the SOP Act. But it does not follow that s 3(8) prevents the parties from agreeing to refer to arbitration an issue concerning that right or procedure that would otherwise be justiciable in a court.

33 Third, in my opinion, clause 36 should be interpreted as having an ambulatory effect. The clause requires the parties to submit to arbitration any dispute of the type described in the clause. It is not restricted to disputes that could have been arbitrated at the time the contract was entered into; and there is no reason to restrict the clause in that way. To take and example, cl 36.1(b)(ii) defines "Dispute" to include any claim "pursuant to any applicable state, territory, Commonwealth, foreign or international statute or law". If legislation were passed during the course of the contract that altered the parties' rights and obligations arising from the contract, then a claim arising under that legislation would be still be a claim falling within cl 36.1(b)(ii). Similarly, if a dispute of a particular type were not arbitrable at the time the contract was entered into but became arbitrable as a consequence of a legislative change, then, if a dispute of that type arose after the legislative change, there is no reason why cl 36 should not be interpreted as an agreement to refer that dispute to arbitration if it was of a type described by the clause. That leaves open the question whether the current dispute is arbitrable having regard to the terms of the CA Act 2010. I return to that question below.

34 In my opinion, the dispute that is the subject of these proceedings is one that the parties agreed to refer to arbitration by the amendment agreement entered into on or about 21 December 2010. By the amended clause 36.3(a), the parties agreed to refer to arbitration "[a]ny dispute arising prior to 20 December 2010". Although the word "dispute" is not capitalised in the introductory words, it is capitalised elsewhere in the clause and, in my opinion, it was intended to have the same meaning on each occasion when it was used in the clause. Consequently, what was referred to arbitration was anything meeting the description of a "Dispute" as defined in the contract that arose prior to 20 December 2010. For the reasons I have given, the dispute the subject of the current proceedings falls within the definition of "Dispute". In my opinion, it is also a dispute that arose prior to 20 December 2010. The heart of the dispute in these proceedings is that Siemens is seeking to enforce a payment claim in respect of Practical Completion of Unit 14 (and a subsequent payment claim for interest) and Origin is disputing its entitlement to do so. That dispute arose when Siemens served two payment claims that were expressed to be under the SOP Act and Origin refused to pay them on the ground that Siemens had engaged in misleading and deceptive conduct. The fact that, as a result of what has happened, Siemens' specific claim is under s 15(2)(a)(i) of the SOP Act and Origin seeks to defend that claim does not mean that the dispute that is the subject of these proceedings is different from the one that arose prior to 20 December. The dispute is still concerned with whether Siemens should be entitled to recover the amounts claimed in its payment claims.

35 Even if the conclusion of the previous paragraph is incorrect, for the reasons I have given, the parties have agreed that disputes of the current type will be dealt with in accordance with cl 36 of the contract. That clause requires the parties to refer the dispute to arbitration if it cannot be settled in without prejudice negotiations. In those circumstances, and subject to the question of arbitrability, it would be appropriate to stay the proceedings in order for that dispute resolution mechanism to operate.

Is the dispute arbitrable?

36 Section 8(1) of the CA Act 2010 provides:

A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

In my opinion, an arbitration agreement is "inoperative or incapable of being performed" if, among other things, its subject-matter is not capable of settlement by arbitration under the laws of New South Wales. That conclusion is support by section 34(2) of the CA Act 2010, which relevantly provides:

An arbitral award may be set aside by the Court only if:

(a) ...

(b) the Court finds that:

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State, or

(ii) the award is in conflict with the public policy of this State.

It would be odd to interpret s 8(1) of the CA Act 2010 as requiring the court to refer to arbitration a dispute if any award arising from that reference was not enforceable under s 34(2)(b).

37 Whether a particular dispute is capable of settlement by arbitration or not depends on the subject matter of the dispute and, in some cases, the mechanism that has been established to resolve it. In general, an arbitrator is required to resolve a dispute according to the laws of the relevant jurisdiction - which is normally the jurisdiction selected by the parties to the arbitration agreement to govern the resolution of their dispute. As Stephen J explained in Government Insurance Office of New South Wales v Atkinson-Leighton Joint Venture (1979-81) 146 CLR 206 at 235:

The principle to be extracted from this line of authority is that, subject to such qualifications as relevant statute law may require, an arbitrator may award interest where interest would have been recoverable and [sic] the matter been determined in a court of law. What lies behind that principle is that arbitrators must determine disputes according to the law of the land. Subject to certain exceptions, principally related to forms of equitable relief which are of no present relevance and which reflect the private and necessarily evanescent status of arbitrators, a claimant should be able to obtain from arbitrators just such rights and remedies as would have been available to him were he to sue in a court of law of appropriate jurisdiction.

Applying this principle, courts have held that, as well as a claim for interest, an arbitrator has power to determine various statutory claims such as those arising under ss 82 and 87 of the Trade Practices Act for contraventions of s 52 of that Act (see Comandate Marine Corp and IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466) and those under ss 175, 233, 247A and 1071B of the Corporations Act 2001 (Cth) ( ACD Tridon v Tridon Australia [2002] NSWSC 896).

38 However, in certain circumstances, it may be apparent from the nature of the subject matter or the way that it is dealt with by the legislature that it is appropriate for disputes concerning that subject matter to be resolved by the courts, or specialist tribunals established for that purpose. What normally distinguishes this class of case is the existence of some legitimate public interest in seeing that disputes of the type in question are resolved by public institutions or in accordance with structures that are established by parliament rather than institutions and structures established by the parties: see Comandate Marine Corp at [200] per Allsop J. Examples include proceedings to recover fines, proceedings relating to insolvency and competition law claims: see ACD Tridon v Tridon Australia at [189]-[194] per Austin J; Comandate Marine Corp at [200] per Allsop J. In Metrocall Inc v Electronic Tracking Systems Pty Ltd [2000] NSWIRComm 136, the Full Bench of Industrial Relations Commission sitting in Court Session thought that the same approach should apply to claims under s 106 of the Industrial Relations Act 1996. In reaching that conclusion, the Full Bench pointed to the fact that jurisdiction in respect of claims under s 106 was conferred on a specialist tribunal and the matters that that tribunal is required to take into account in determining whether to grant relief under that section include matters such as whether the contract is "against the public interest".

39 There are a number of aspects of the SOP Act that suggest that it establishes a particular regime for the recovery of progress payments which cannot be made the subject of arbitration.

40 First, the Act reflects a legislative policy that there should be a swift mechanism for contractors to recover progress payments. That was thought to be socially desirable having regard to a particular problem in the construction industry in New South Wales which meant that frequently small contractors were not paid. As Mr Iemma, then Minister for Public Works, said in the second reading speech for the relevant bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 June 1999 at 1594):

The Building and Construction Industry Security of Payment Bill is a key component of the Government reform package for security of payment in the New South Wales construction industry. It follows the 15 February announcement by the Premier of the Government's intention to stamp out the un-Australian practice of not paying contractors for work they undertake on construction. It is all too frequently the case that small subcontractors - such as bricklayers, carpenters, electricians and plumbers - are not paid for their work. Many of them cannot survive financially when that occurs, with severe consequences for themselves and their families.

41 Second, to achieve that goal, the legislature established a public, statutory dispute resolution scheme. Section 32 of the SOP Act provides that that scheme is not to affect the parties' rights under the relevant construction contract. The parties are still at liberty to pursue those rights, and any order made under the Act is not to affect them. In particular, s 32(3) provides:

In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal:

(a) must allow for any amount paid to a party to the contract under or for the purposes of this Part [that is, the Part providing for adjudication of the claim] in any order or award it makes in those proceedings, and

(b) may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings.

It is noteworthy that this section specifically recognises that the underlying contractual dispute may be the subject of an arbitration, and it gives an arbitrator power to adjust the rights of the parties under the contract having regard to any amount that the contractor has recovered in accordance with the SOP Act.

42 Third, section 34(1) of the Act says that the Act takes effect despite any provision to the contrary in any contract. Section 34(2) provides:

A provision of any agreement (whether in writing or not);

(a) under which the operation of this Act is, or is purported to be, excluded, modified or restricted (or that has the effect of excluding, modifying or restricting the operation of this Act), or

(b) that may reasonably be construed as an attempt to deter a person from taking action under this Act,

is void.

43 It follows from these provisions that arbitration cannot be a substitute for an adjudication under the Act. In addition, in my opinion, the supervisory jurisdiction the court exercises over the adjudication process cannot be the subject of an arbitration. In exercising that jurisdiction, the court is exercising a public function of ensuring the integrity of a dispute resolution system established by parliament. It is not simply resolving disputes between private litigants. The degree to which the court should exercise that function has been the subject of some debate. Most recently, the circumstances in which the court will intervene have been expanded so that the court will now grant relief in the nature of certiorari where the adjudicator has exceeded his or her jurisdiction: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190. However, whatever the precise scope of that jurisdiction, it is not one that in my opinion can be made the subject of an arbitration.

44 The question remains whether a dispute concerning s 15(2)(a)(i) of the SOP Act is arbitrable. Origin pointed to two matters to suggest that it was. First, it pointed to the fact that the CA Act 2010 does not contain an equivalent to s 3(8) of the CA Act 1984. That was said to be an indication that some disputes under the SOP Act, at least, are arbitrable. Second, Origin pointed to the fact that, where the legislature intends that disputes of a particular type are not arbitrable, it specifically says so - such as s 43 of the Insurance Contracts Act 1984 (Cth) and s 7C of the Home Building Act 1989. In addition, proceedings under s 15(2)(a)(i) are not part of the adjudication process. Nor are they part of the court's supervision of that process. They are simply proceedings to recover a statutory debt that can be brought in any court of competent jurisdiction. There is no reason why disputes of that type should not be arbitrable.

45 Despite these considerations, I do not think that a claim under s 15(2)(a)(i) is arbitrable. I accept that the fact that the CA Act 2010 does not contain an equivalent of s 3(8) of the CA Act 1984 is one matter that can be taken into account in interpreting the CA Act 2010: see Geaghan v D'Aubert [2002] NSWCA 260; (2002) 36 MVR 542 at [22]-[23], quoting D C Pearce and R S Geddes, Statutory Interpretation in Australia , 5 th ed (2001) Butterworths. However, it seems to me that the failure to include in the CA Act 2010 a similar provision to s 3(8) of the 1984 Act can be explained on the basis that the provision was though to be unnecessary having regard to the terms of ss 8(1) and 34(2) of the 2010 Act and the particular nature of the SOP Act. Provisions such as s 43 of the Insurance Contracts Act and s 7C of the Home Building Act are necessary precisely because, on the face of it, disputes under contracts of those types are arbitrable. The same could not be said of disputes under the SOP Act. Moreover, s 15(2)(a)(i) is part of the mechanism established to give effect to the adjudication process and the policy underlying it. It seems odd if one aspect of that process could be made the subject of an arbitration when all other aspects of it could not. Finally, s 15(2)(a)(i) specifically says that the claimant may bring proceedings in any court of competent jurisdiction. In doing so, it gives the claimant a right. Section 34 of the SOP Act makes it clear that the claimant cannot contract out of that right. Elsewhere, the Act recognises that disputes under construction contracts may be the subject of arbitration. In particular, as I have said, s 32(3) confers powers on arbitrators (as well as courts). However, s 15(2)(a)(i) confers a right to bring a claim in a court. It makes no reference to arbitration. If the legislature had intended the section to include an arbitration, it would have specifically said something about arbitration in the section, as it did in s 32(3). In my opinion, a provision of an arbitration agreement that prevents a party from exercising a right under s 15(2)(a)(i) to bring proceedings in a court of competent jurisdiction is, to that extent, void under s 34 of the SOP Act.

Should the court nonetheless stay these proceedings?

46 Origin submits that it should. It gives three reasons. First, it says that it is an abuse of process for Siemens to seek the same relief in concurrent proceedings. Second, it says that Siemens should be held to its agreement to arbitrate. Third, it submits that a stay is in the interests of justice because there is a significant overlap in the issues in these proceedings and the issues in the arbitration.

47 I do not accept these submissions.

48 In my opinion, there is no overlap in the relief sought in the two proceedings. In these proceedings, Siemens seeks to enforce a statutory right to a progress payment. However, as s 32 makes plain, that right is a right to an interim payment. It does not affect the contractual rights that are the subject of the arbitration.

49 As to Origin's second reason (that Siemens should be held to its agreement), the effect of a stay would be to deprive Siemens of its rights under the SOP Act in circumstances where that Act specifically says that those rights are available notwithstanding the parties' agreement. The court should not by the grant of a stay seek to achieve that result simply because that is what the parties have agreed.

50 As to the question of overlap, that is a matter that the court can take into account in exercising its discretion. However, it is not a matter that can be determinative. It is also necessary to take into account the fact that the effect of a stay would be to deprive Siemens of a right conferred by the SOP Act, since, on the conclusions I have reached, a claim under the SOP Act is not arbitrable. In this case, the overlap arises because Origin seeks to defend the claim under the SOP Act and to defend the claim under the contract on the basis that Siemens engaged in misleading and deceptive conduct by serving an erroneous acoustical test report. Four points may be made about this. First, the question whether Siemens engaged in misleading and deceptive conduct is only one aspect of the dispute between the parties. Determination of that issue by the court will not render the parties' agreement to submit their disputes to arbitration otiose. Second, there was no suggestion that the issue is peculiarly suitable for resolution by arbitration rather than by the court. Third, there is no suggestion that, if the court were to determine the issue, that would unduly prejudice Origin because, for example, the same witnesses would need to give evidence twice. Fourth, there does not seem to be a real risk of inconsistent findings. If the issue is determined by the court, then that is likely to create an issue estoppel between the parties: see Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [21]. The result will be that it will be unnecessary for the arbitral tribunal to determine the issue itself. Origin's real objection was that the parties had agreed that the issue whether Siemens engaged in misleading and deceptive conduct would be referred to arbitration and the effect of not granting a stay is to undermine that agreement. But it could equally be said that Siemens has a statutory right to pursue its claim in court and granting a stay would undermine that statutory right. That is particularly so where, as I have held, the claim is not arbitrable. Taking these matters into account, I think that the balance is in favour of not granting a stay in this case.

Should there be a referral under UCPR rule 20.14?

51 For similar reasons, I do not think that this is an appropriate matter in which to refer the question whether Siemens engaged in misleading or deceptive conduct or other questions raised under the SOP Act to the arbitrators chosen by the parties. A reference would permit the arbitrators to determine Siemens' claim under s 15(2)(a)(i) of the SOP Act. However, in the circumstances of this case, there is no particular advantage in referring the issue to the arbitrators, except that it would go some way to giving effect to the parties' agreement. On the other hand, it seems to me that a referral would introduce complications and delays of the very sort that the SOP Act is intended to avoid.

Orders

52 Origin's motion filed on 17 February 2011 should be dismissed with costs.

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Decision last updated: 24 March 2011