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Comparison of dismissed adjudication applications in WA and Victoria
Source publication
Paying parties often rely upon jurisdictional objections as a delaying tactic, in order to “frustrate” adjudication process, which may undermine the attainment of the legislative intent of the security of payment legislation. Encouraging adjudicators (who are not required to be legally trained) to determine questions relating to their jurisdiction...
Context in source publication
Context 1
... instance, whilst the Victorian and NSW legislation are completely silent about the duty of adjudicators to decide upon jurisdiction, dismissal of applications for lack of jurisdiction and entitlement of adjudication fees upon dismissal, the legislation in WA and Queensland provide some directions 59 in this regard. Table 1 below explains the impact of such ambiguities by illustrating a comparison between the number of adjudication applications dismissed by adjudicators for lack of jurisdiction in WA and Victoria in the last two reported financial years. 60 It is worth noting that the figures of WA may include a very few applications dismissed due to other reasons such as complexity of the dispute. ...
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Citations
... However, considerable operational problems have been identified, threatening the aim of this process and creating an atmosphere of dissatisfaction over the adjudication outcomes (Munaaim 2011;Murray 2017;Skaik 2017b). The lack of trust in the system has motivated aggrieved parties to seek judicial review to challenge adjudication decisions, hurting the fast-track spirit of the legislation, and the Australian courts have quashed many determinations for reasons relating to the poor adjudication decision-making process (Bartels et al. 2014;Skaik 2017c). The arguments of successful challenges include, inter alia, denial of natural justice, acting without jurisdiction, adjudicator's bias, and nonfulfillment of the essential role of the adjudicator ( Bartels et al. 2014). ...
... Adjudication determinations should satisfy the following basic requirements: adjudicators act within their statutory authority; they follow natural justice principles; they exercise their powers in good faith, and adjudicators' determinations do not contain material and substantial errors of law (Skaik 2017c). The lack of strong appointment criteria has led to the appointment of adjudicators based on their availability rather than their expertise (Skaik et al. 2016). ...
... The lack of competence and insufficient training of the adjudicators have been linked with deficient adjudication outcomes (Murray 2017). Similarly, it was pointed out that most adjudicators seem to lack the expertise required for handling jurisdictional challenges (Skaik 2017c). Even though many adjudicators have considerable experience and qualifications, they are unable to write good determinations that accurately tell the legal story to parties in a way that the parties can understand (Skaik 2017b). ...
... Such inconsistencies are confusing to all parties involved in the process, including lawyers and adjudicators. Therefore, some claimants avoid going for adjudication altogether and go directly to courts (Skaik, 2017e). Such inconsistencies produced uncertainties in the adjudication process and contributed to the lack of affordability of adjudication in terms of time and cost (Skaik et al., 2016a, Bailey, 2019a. ...
Within the Australian construction industry, small subcontractors are highly vulnerable to insolvency risk due to poor payment practices. The Security of Payment legislation was introduced to ensure that those subcontractors are timely paid for the work they do. However, since the enactment of the legislation in Australia, the utilisation rates of the legislation have been relatively low. Through a desktop study, this paper aims to identify and discuss the main causes of the legislation under-utilisation including affordability, lack of industry confidence, lack of knowledge and awareness, impact on business relationships and limited right to access the regime. Moving further, this paper will acquaint the lead author's PhD study, which aims to address the barriers and solutions to achieve an appropriate utilisation of the security of payment legislation.
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Notes Western Australia's Building and Construction Industry (Security of Payment) Bill 2020, intended to improve subcontractor and supplier protection in the construction industry, and evaluates its adjudication review mechanism (ARM). Discusses the background to the reform, the Bill's provisions governing ARM, and their potential shortcomings, including the uncertain effects of suspension. Suggests how the existing proposals might be improved.
