Written submission in response to the issue paper, National review of security of payment laws, Australia.

Full text

SUBMISSION FOR NATIONAL
REVIEW OF SOP LAWS IN
AUSTRALIA: ISSUE PAPER
MAY 8, 2017
Submission by Samer Skaik, BEng (Civil), MSc (Dist), PMP, MIEAust, ACIArb, Cert.Adj(RICS),
PhD(submitted)
Construction Management Guide (cmguide.org)

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
1 | P a g e
Ta ble of Content
1. Brief biography of the submitter ........................................................................................... 2
1.1 list of relevant publications............................................................................................. 2
2. The purpose of this submission ............................................................................................. 3
2.1 The ambit fo this submission .......................................................................................... 4
3. The rationale of this sumbission: ........................................................................................... 4
4. Option 1: Introducing review mechanism into statutory adjudication:.................................... 6
4.1 Justifying the need of review mechanism: ....................................................................... 6
4.2 Guidelines to introduce review mechanism into statutory adjudication: ........................... 7
4.2.1 The purpose of the guidelines: ................................................................................ 7
4.2.2 Application of the guidelines: .................................................................................. 8
4.2.3 The guidelines ........................................................................................................ 8
A. Threshold for review.......................................................................................................... 8
B. Application for review by respondent ................................................................................. 8
C. Application for review by claimant...................................................................................... 9
D. Procedure for making application....................................................................................... 9
E. Right to respond to the review application ........................................................................ 10
F. Appointment of review adjudicator................................................................................... 10
G. Adjudication review procedures ....................................................................................... 11
H. Adjudication review determination .................................................................................. 12
I. Authorised nominating authority must notify persons of review determination ................... 14
J. Review adjudicator's fees.................................................................................................. 14
K. Review determinations may be enforced as orders of court ............................................... 15
L. Judicial review of determinations...................................................................................... 16
M. Publishing of review determinations................................................................................ 16
4.3 Countering the barriers of introducing review mechanisms ................................................. 16
4.3.1 Additional time ........................................................................................................... 16
4.2.2 Additional cost ..................................................................................................... 16
4.3.3 Persistent availability of judicial review ........................................................................ 17
5. Option 2: promoting best practices in in dealing with jurisdictional issues............................ 18
5.1 Summary:.................................................................................................................... 18
5.2 The proposed roadmap: ............................................................................................... 18
1- Respondent’s obligation to raise jurisdictional objections in adjudication response ......... 19
2- Making the referral of the adjudication case after receipt of adjudication response......... 19
3. Appointment of a legally qualified senior adjudicator if response includes jurisdictional
objections ........................................................................................................................... 19
4. Providing adjudicators with guidelines to deal with jurisdictional objections ....................... 20
5. Empowering appointed adjudicators to extend time limits, allow for claimant’s reply and
engage technical experts ..................................................................................................... 20
6. Adjudicator’s eligibility for fees upon dismissal of the case for lack of jurisdiction and
obligation to avoid unnecessary expenses or costs ................................................................ 21
6. Conclusion .......................................................................................................................... 22

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
2 | P a g e
1. BRIEF BIOGRAPHY OF THE SUBMITTER
I am a Claims & PM Consultant with 15 years of extensive experience dealing with international
construction projects, alongside lecturing, advising and writing on construction management & law. I
currently serve as the Director of Construction Management Guide (CMGuide); a Claims & PM
Consultancy registered in Australia and operates locally & internationally.
I am an accredited adjudicator under the Security of Payment Legislation in NSW and I currently serve
as a Panel Adjudicator with RICS DRS. I also serve as a Sessional Lecturer teaching Construction
Management at Deakin University since 2015. Before that, I have taught and supervised research at
Heriot Watt University (UK) for more than four years.
Alongside Academia, I worked as a Senior Projects Manager & Commercial Manager overseeing major
international projects for DAMAC properties between 2010-2014. Before that, I had worked at various
technical & managerial positions for leading contractors in the UAE.
I hold a UK Master Degree (with Distinction) in Construction Management and recently I competed
my PhD thesis about 'Statutory Adjudication’. I am certified as a Professional Civil Engineer by
Engineer Australia and as a Project Management Professional by PMI. I am also certified an Associate
Member of Chartered Institute of Arbitrators.
I have published widely on construction management and law topics with a particular interest and focus
on the Austrlain security of payment laws. In May 2016, I received a High Commendation in the 2016
Australian Society of Construction Law Brooking Prize. I also authored the four Australian chapters
within "International Contractual and Statutory Adjudication" book by Routledge
I am usually approached to provide feedback and review services for the industry & academia. I was
invited by FIDIC to be a "Friendly Reviewer" of the forthcoming FIDIC Yellow Book; and by Built
Environment Project and Asset Management Journal, RICS COBRA and AUBEA conferences to peer
review academic papers.
1.1 LIST OF RELEVANT PUBLICATIONS
In addition, please refer to the list of the submitter’s publications for further insights into other problems
and opportunities for law reform in the security of payment legislation.
1. Skaik S (2017), Australia: The East Coast Model with New South Wales as the Principal
Legislation. In: Burr, A. ed. International Contractual and Statutory Adjudication, Informa Law
from Routledge.
2. Skaik S (2017), Australia: The East Coast Model: Victoria, Tasmania, The Australian Capital
Territory and South Australia. In: Burr, A. ed. International Contractual and Statutory
Adjudication, Informa Law from Routledge.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
3 | P a g e
3. Skaik S (2017), Australia: The East Coast Model: Queensland. In: Burr, A. ed. International
Contractual and Statutory Adjudication, Informa Law from Routledge.
4. Skaik S (2017), Australia: The West Coast model: Western Australia and Northern Territory.
In: Burr, A. ed. International Contractual and Statutory Adjudication, Informa Law from
Routledge.
5. Skaik S (2017), An empirical study: How to introduce effective review mechanisms into
statutory adjudication? Construction Law Journal, vol. 33, no. 5, pp 102-120.
6. Skaik S (2017), Effectiveness of existing adjudication review mechanisms: Views of industry
experts, Construction Law Journal, vol. 33, no. 3, pp 233-245.
7. Skaik S (2017), The tip of the iceberg, jurisdiction of statutory adjudicators, Construction Law
Journal, vol. 33, no. 2, pp 102-120.
8. Skaik S, Coggins J, Mills, A (2016), Towards diminishing judicial intervention in Australia: A
pragmatic proposal, Construction Law Journal, Construction law journal, vol. 32, no. 6, pp. 659-
675.
9. Skaik S (2016), Taking Statutory Adjudication to the next level: A proposal for Legislative
Review Mechanism of Erroneous Determinations, International Construction Law Review,
International Construction Law Review, vol. 33, no. Part 3, pp. 287-311.
10. Skaik S, Coggins J, Mills, A (2016), The big picture: causes of compromised outcome of
complex statuary adjudication in Australia, International Construction Law Review, vol. 33, no.
Part 2, pp. 123-147.
11. Skaik S, Coggins J, Mills, A (2016), Australian Security of Payment Legislation: Impact of
inconsistent case law, in AUBEA 2016: Proceedings of the 40th Australasian Universities
Building Education Association Annual Conference, Central Queensland University,
Rockhampton, Qld, pp. 671-681.
12. Skaik S, Coggins J, Mills, A (2016), Examining the approach to diminish judicial intervention
in statutory adjudication in Australia, in AUBEA 2016: Proceedings of the 40th Australasian
Universities Building Education Association Annual Conference, Central Queensland
University, Rockhampton, Qld, pp. 660-670.
13. Skaik S, Coggins J, Mills, A (2015), A proposed roadmap to optimise the adjudication of
complex payment disputes in Australia, in ARCOM 2015: Proceedings of the 31st annual
conference for the Association of Researchers in Construction Management, ARCOM,
Reading, Eng., pp. 93-102.
14. Skaik S, Coggins J, Mills, A (2015), Investigating the factors influencing adjudication of
complex payment disputes in Australia, in ARCOM 2015: Proceedings of the 31st annual
conference for the Association of Researchers in Construction Management, ARCOM,
Reading, Eng., pp. 83-92.
15. Skaik S, Coggins J, Mills, A (2015), How should Adjudicators deal with expert reports in
Australia? in RICS COBRA AUBEA 2015: Proceedings of the 2015 Annual RICS International
Research Conference, Royal Institution of Chartered Surveyors (RICS), London, Eng., pp. 1-9.
2. THE PURPOSE OF THIS SUBMISSION
In 31st March 2017, I got an invitation from Mr john Murray AM for a meeting as part of his national
consultation process. During that meeting which was held at Ministry of Employment in Melbourne
over a period of three hours, I made a full presentation regarding the current issues in SOP laws and the
possible remedies. This submission is made in support of that meeting to specifically respond to many
issues raised in the issue paper. The submission provides sufficient details regarding my views as well
as my research findings over the last three years around security of payment laws in Australia.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
4 | P a g e
2.1 THE AMBIT FO THIS SUBMISSION
This submission provides two main options that answer many questions raised under the following
issues included within the issue paper (released in February 2017). Also, I refer you as below to other
publications which contain further detailed and specific information.
1. Effectiveness of existing Security of Payments laws (See: The tip of the iceberg)
2. Two systems under the one legislation (See: The Big picture)
3. Differences in timeframes on key process steps (See: The Big picture)
4. The process for appointment of adjudicators (See: The tip of the iceberg & The Big picture)
5. Quality of Adjudication Decisions (See: The Big picture)
6. Exclusion of claims
7. Publication of Adjudicators Determinations
8. Court’s power to sever and remit? (See: Towards diminishing judicial review)
3. THE RATIONALE OF THIS SUMBISSION:
Statutory adjudication was introduced into the security of payment legislation as a fast-track payment
dispute resolution process aiming to facilitate cash flow within the construction contractual chain.
However, in recent years, courts have been more willing to intervene in adjudication process due to
poor quality of adjudication outcome, particularly in relation to large and/or complex payment claims.
This situation has encouraged aggrieved parties to challenge adjudication determinations by way of
judicial review resulting in numerous judicial review applications, particularly in Australia. This has
eroded the original object of the security of payment legislation. The mission has been compromised
particularly in ensuring that contractors are paid quickly for the work they do on an interim basis. With
that, some jurisdictions allow for an express limited right of aggrieved parties to apply for review against
erroneous determinations as a way to remedy injustice caused by the speedy adjudication process. The
aim of this submission is to demonstrate the final findings of my PhD study (which is currently under
examination) that have examined whether the Australian statutory adjudication would benefit from
introducing a review mechanism, and if so, what would be the guidelines for devising an effective
review mechanism. The study adopted a combination of doctrinal legal research and socio-legal
research (empirical research) involving 23 interviews with industry experts. The study revealed that the
lack of full review mechanisms within the security of payment legislation is one of the identified factors
leading to poor adjudication outcome and/or excessive judicial intervention. The study drew upon this
analysis and evaluates the operation of review mechanisms in various jurisdictions to examine whether

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
5 | P a g e
or not a legislative review mechanism, should be an essential characteristic of any effective statutory
adjudication scheme. The study concluded that an appropriately designed full review mechanism is a
pragmatic and effective measure to improve certainty, reinstate disputants’ confidence and diminish
judicial intervention. The study identified some barriers resulting from introducing review mechanisms,
namely, additional time and cost, and persistent availability of judicial review. Thus, a set of detailed
guidelines for devising an appropriate review mechanism is proposed in this submission to counter
those barriers and avoid any abuse of process. With regard to time, the guidelines make it incumbent
on respondents to pay the adjudicated amount to claimants in order to access the review or alternatively
pay it into a designated trust account if claimants may not be able to repay. This requirement will not
only facilitate cash flow (maintaining the object of the legislation) but also improve the flow of cash in
a timely manner. In addition, the review mecnhiasm is devised as a swift process where the total review
duration may take 20 to 25 business days in normal cases and 25 to 30 business days in complex cases.
Arguably, this is a little price to pay to obtain a reliable and more certain adjudication outcome away
from curial proceedings. With regard to cost, the guidelines provide that the review can only be accessed
if the adjudicated amount in dispute is $100,000 or more. This monetary threshold will ensure there is
sufficient substance in economic terms to make the review process economical and convenient to both
parties. Also, review adjudicators should take into account the conduct of the parties (acting
unreasonably) in the apportionment of fees and award of legal costs. In addition, review adjudicators
can reduce fees of errant original adjudicators. With regard to judicial review, the guidelines make it
clear that a party to an adjudication determination may not bring judicial proceedings to set aside an
adjudicator’s determination without having first obtained a review determination with respect to the
adjudicator’s determination. This requirement is consistent with the observations of the WA Supreme
Court in Re Graham Anstee-Brook; Ex Parte Mount Gibson Mining Ltd [2011] WASC 172 at [64]
(referring to various authorities including the High Court's decision in The Queen v Cook; Ex parte
Twigg [1980] HCA 36) that the “availability of prerogative relief will be undermined by circumstances
where parties could avail themselves of alternative remedies by way of rehearing, appeal or review.”
Nevertheless, the submission provides another alternative to the notion of review mechanism to
diminish judicial intervention, whereas a roadmap of six hold points is proposed. The roadmap aimed
to not only diminish judicial intervention but also explore the best practices in dealing with jurisdictional
issues in adjudication. The six hold points are as follows:
1. The obligation of respondents to raise jurisdictional objections in adjudication response;
2. Making the referral of the case after receipt of adjudication response;
3. Appointment of a legally qualified senior adjudicator if response includes jurisdictional
objections;
4. Providing adjudicators with guidelines to deal with jurisdictional objections;

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
6 | P a g e
5. Empowering appointed adjudicators to extend time limits, allow for claimant’s reply and
engage technical experts;
6. Adjudicator’s eligibility for fees upon dismissal of the case for lack of jurisdiction, and
obligation to avoid unnecessary expenses.
It is hoped that the recommendations of this submission will be considered by by Mr john Murray and
his team in order to apply best practices to improve security of payment laws.
4. OPTION 1: INTRODUCING REVIEW MECHANISM INTO STATUTORY
ADJUDICATION:
4.1 JUSTIFYING THE NEED OF REVIEW MECHANISM:
Notwithstanding the interim and rapid nature of statutory adjudication, it was judicially noted that there
is “no proper basis to distinguish an adjudication for the purpose of maintaining cash flow from an
adj udication to determine a party’s ultimate rights and entitlements.”
1
An optimal adjudication process
should maximise, within the legislative objective of expediency, the opportunity that adjudicators’
determinations are made in accordance with the correct and relevant law.
Typically, an aggrieved party in adjudication has no option but to initiate lengthy and expensive
proceedings such as arbitration or litigation but the inherent cost of such proceedings may prevent the
party from seeking justice. The remedy by way of judicial review is available in very limited situations.
Therefore, many erroneous adjudication determinations have become final and binding decisions.
2
In addition, with the availability of the review mechanism, courts are likely to be more reluctant to
exercise their discretionary powers to set aside adjudication decisions.
3
In Singapore, Prakash J held in
SEF Construction Pte Ltd v Skoy Connected Pte Ltd
4
that the availability of a statutory merits review,
with other factors, impliedly restricted judicial review in the High Court. In Re Graham Anstee-Brook;
Ex Parte Mount Gibson Mining Ltd,
5
Kenneth Martin J also noted that:
“As to discretion, the availability of prerogative relief will be undermined by circumstances
where parties could avail themselves of alternative remedies by way of rehearing, appeal or
1
Hall Contracting Pty Ltd v Macmahon Contractors Pty Ltd (2014) 34 NTLR 17; NTSC 20 [45] (Barr J).
2
See, eg, Uniting Church in Australia Property Trust (Qld) v Davenport [2009] QSC 134 (Daubney J).
3
As to the use of the discretion to deny certiorari where there lies another review option, see for instance, the High Court's
decision in The Queen v Cook; Ex parte Twigg [1980] HCA 36 [29], [30] and [34]; Re Baker; Martin CJ in Re Carey; Ex
parte Exclude Holdings Pty Ltd [2006] WASCA 219 [128] - [140].
4
[2009] SGHC 257.
5
[2011] WASC 172; 42 WAR 35 [64].

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
7 | P a g e
review. Circumstances where parties have been granted and hold alternative review options
bear upon the availability of prerogative relief as a matter of discretion.”
Introducing review mechanism will improve the confidence and certainly in adjudication outcome,
which is paramount in situations where claimants exercise their statutory rights to suspend work if
respondents do not pay the adjudicated amounts. However, the consequences of any work suspension
may be devastating if the adjudication determination fails to resist challenges in courts. Vickery J
observed this dilemma in Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd and noted:
6
“A contractor would be seriously inhibited in the exercise of its statutory right to suspend
work s if it suspected that its payment claim and the adjudicator’s determination made upon it
could be vulnerable to attack on technical legal grounds. If the contractor made the wrong call,
the consequences of suspending work could be prohibitive.”
On the other hand, improving the quality of adjudicators may not be a sufficient measure to avoid
erroneous determinations. In Queensland, major amendments have been made to its SOP legislation in
December 2014 to increase the quality of adjudication outcome such as allowing longer timeframes for
complex claims and improving the selection and regulation of adjudicators. Interestingly, seven judicial
review court applications were lodged after the amendment, (compared to 15 applications in the
preceding year), in which the Queensland Supreme Court found that adjudicators committed
jurisdictional errors in three cases.
7
Moreover, adjudication of complex payment disputes became very
lengthy and costly which makes the scheme more similar to curial proceedings.
Iintroducing an appropriate review mechanism would offer a pragmatic and practical solution that
acknowledges the existing variety of adjudicators’ qualities and competencies and the difficulty of
attaining quality adjudication outcome due to the hasty adjudication process. The review mechanism
may act as an effective safety net to capture erroneous determinations away from curial proceedings to
help control the overall cost and improve the finality and informality of statutory adjudication.
4.2 Guidelines to introduce review mechanism into statutory adjudication:
4.2.1 The purpose of the guidelines:
1. Provide a safety net to correct any injustice made during the hasty adjudication process.
2. Diminish judicial intervention in statutory adjudication.
3. Provide more certainty in the adjudication outcome.
6
[2009] VSC 156; 26 VR 112 [47].
7
Queensland Building and Construction Commission, monthly adjudication statistics, December 2015, p. 8.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
8 | P a g e
4. Reinstate the object of the SOP legislation in facilitating cash flow.
4.2.2 Application of the guidelines:
The guidelines, whilst they are devised to Assist the parliamentary counsels in drafting legislation for
review mechanisms in jurisdictions based on the NSW SOP model, can also be used as a reference to
draft legislative amendment within any other SOP legislation in Australia or worldwide.
4.2.3 The guidelines
A. Threshold for review
(1) This review mechanism applies to a respondent in respect of an adjudication determination
if the adjudicated amount exceeds the adjudication response amount by $100,000 or
more.
(2) This review mechanism also applies to a claimant in respect of an adjudication
determination if the payment claim exceeds the relevant adjudicated amount by
$100,000 or more.
B. Application for review by respondent
(1) Subject to this section, a respondent may apply for a review of an adjudication
determination (a review application).
(2) An application under this section may only be made on the ground that the first instance
adjudicator (the adjudicator) made an error of fact or law that goes into or within the
adjudicator’s jurisdiction that could substantially affect the right of one or more parties
to the adjudication determination.
(3) An application under this section to challenge adjudicator’s decision upon jurisdiction
cannot be made unless:
a) the grounds of that challenge have been duly raised before the adjudicator; and
b) the adjudicator has released the determination.
(3) An application under this section may only be made if the respondent has paid to the
claimant the undisputed portion of adjudicated amount.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
9 | P a g e
(4) An application under this section may only be made if the respondent has either provided
a bank guarantee for the disputed portion of the adjudicated amount or has paid the
disputed portion of the adjudicated amount into a designated trust account maintained
by an independent entity nominated by the governmental authority.
C. Application for review by claimant
(1) Subject to this section, a claimant may apply for a review of an adjudication
determination (a review application).
(2) An application under this section may only be made on the ground that the adjudicator
made an error of fact or law that goes into or within the adjudicator’s jurisdiction that
could substantially affect the right of one or more parties to the adjudication
determination.
(3) An application under this section to challenge the adjudicator’s determination upon
jurisdiction cannot be made unless the adjudicator has released a determination
dismissing the adjudication application without addressing the merits for lack of
jurisdiction.
(4) An adjudicator’s determination made under sub-section C(3) is an adjudicator’s
determination for the purpose of the Act.
D. Procedure for making application
(1) A review application must be made to an authorised nominating authority chosen by the
mutual agreement of the parties. The parties may also agree the identity of the review
adjudicator to be appointed. In the absence of agreement, the Authority, upon the request
of the applicant, shall nominate the authorised nominating authority to which the review
application shall be made.
(2) A review application shall not be made to the same authorised
nominating authority to which the adjudication application was made.
(3) A review application must be made within 5 business days after the respondent or
claimant (as the case requires) receives a copy of the adjudication determination.
(4) A review application—

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
10 | P a g e
(a) must be in writing in the prescribed form and contain prescribed information
(if any); and
(b) must contain the reasons for applying for review and identify alleged errors in the
determination; and
(c) must include a copy of the adjudication determination that is the subject of the
adjudication review; and
(e) must include a copy of the payment claim, payment schedule and all submissions
and information considered by the adjudicator in making adjudication
determination; and
(f) must be accompanied by the application fee (if any) determined by the authorised
nominating authority.
(5) The party applying for an adjudication review must give a copy of the review
application to the other party within one business day after the application is made.
E. Right to respond to the review application
(1) A party who has received a copy of an adjudication review under subsection D(5) may
make a submission to the authorised nominating authority, appointed in accordance with
subsections D(1) and D(2), in response to the review application within 3 business days
after having been duly served with a copy of the review application.
F. Appointment of review adjudicator
(1) The authorised nominating authority must, within 5 business days after receiving a
review application, appoint a review adjudicator or a panel of 3 review adjudicators in
accordance with this section (the review adjudicator) to conduct the review.
(2) The authorised nominating authority shall not disclose the identity of the original
adjudicator to the review adjudicator.
(3) Notwithstanding the fact the parties may agree the identity of the adjudicator under sub-
section D(1), a review adjudicator shall be a person who is eligible to be an adjudicator
pursuant to the Act.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
11 | P a g e
(4) The authorised nominating authority shall not appoint an adjudicator who has been
involved directly or indirectly with the adjudication determination that is the subject of
the adjudication review.
(5) The authorised nominating authority may select a senior adjudicator with legal
qualifications and construction experience relevant to the matter(s) in dispute.
(6) The authorised nominating authority may appoint a panel of 3 review adjudicators if, in
the opinion of the authorised nominating authority, the review application is too
complex and/or if the original adjudication determination was made by a senior
adjudicator.
(7) Whether a review application is too complex for the purposes of subsection F(6) is a
matter to be determined at the discretion of the authorised nominating authority to
which the review application has been made. In determining the complexity of the
review application, the authorised nominating authority may have regard to the amount
in dispute, the volume of the review application submissions, and the nature of the
reasons for applying for review.
(8) The authorised nominating authority must give each party to the review and the
Authority written notice of the appointment of a review adjudicator.
(9) The notice under subsection F(8) must include the adjudicator’s name, contact details
and date of appointment.
G. Adjudication review procedures
(1) The adjudication review commences upon acceptance by the review adjudicator of his or
her appointment as the review adjudicator.
(2) The authorised nominating authority must provide the following information to the
review adjudicator as soon as practicable after the appointment of the review
adjudicator—
(a) a copy of the review application together with all information submitted in
accordance with section D; and
(b) a copy of any response to the review application made by a party pursuant to
section E.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
12 | P a g e
H. Adjudication review determination
(1) In determining a review application, the review adjudicator must consider the following
matters only—
(a) the provisions of the Act and any regulations made under the Act; and
(b) the provisions of any construction contract to which the adjudication
determination relates; and
(c) the information provided by the authorised nominating authority under sub-
section G(2).
(2) In determining a review application on the merits, the review adjudicator may consider
reformulated arguments based on the facts submitted before the adjudicator but must
not consider any new facts, reasons or evidence, save for any submission relating to
errors of fact or law in the adjudication determination.
(3) The review adjudicator has the discretion to request further submissions, conduct
inspections or call for conferences with the parties.
(4)The review adjudicator has the jurisdiction to determine questions of law or facts raised
in the review application and/or in response to the review application.
(5) After conducting an adjudication review, a review adjudicator may—
(a) set aside the adjudication determination and substitute a new adjudication
determination (the review determination) for the adjudicator’s determination that
is the subject of the adjudication review; or
(c) release a review determination confirming the adjudicator’s determination that is
the subject of the adjudication review.
(6) In determining a review application, the review adjudicator must—
(a) where the review determination varies the adjudication determination, identify
how and why it differs;
(b) specify any amounts already paid to the claimant by the respondent in respect of
the adjudication determination;

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
13 | P a g e
(c) determine any further amount that is to be paid by the respondent to the claimant
pursuant to the review determination;
(d) determine any amount that is to be repaid by the claimant to the respondent;
(e) determine any interest payable on an amount referred to in subsection H(6) (c);
(f) specify the date on which any amount determined under subsections H(6) (c), (d)
and (e) becomes payable.
(g) where the original adjudicator’s determination is varied due to error, specify whether
or not the original adjudicator’s fee shall be reduced to a base fee rate as may be
determined by the review adjudicator; and refund the remaining fee amount to the
party who paid that amount.
(h) where the original adjudicator’s fee is reduced pursuant to subsection
H(6)(g), specify the amount of the original adjudicator’s to be refunded to
the party, or parties, who paid the fee.
(i) specify the date on which any amount under subsections H(6) (c), (d), (e),(g), and
(h) becomes payable.
(7) The review adjudicator may make an order for legal costs to compensate a party for any
expenses, loss or inconvenience as a result of the other party’s c onduct. This would
include situations when a party conducts itself unreasonably or where a case is obviously
frivolous, vexatious or unmeritorious.
(8) A review determination must be in writing and set out the reasons for the review
determination in that determination.
(9) A review adjudicator may, if he or she thinks it appropriate, include a statement in the
review determination that, in his or her opinion, the application for the adjudication
review was not made in good faith.
(10) The date for payment referred to in sub-section (6)(f) must be within 5 business days
after the parties (as the case requires) are given a copy of the review determination.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
14 | P a g e
(11) The review adjudicator must complete the adjudication review and provide a copy of
the review determination to the authorised nominating authority that appointed him or
her—
(a) within 10 business days after his or her appointment; or
(b) where a panel has been appointed pursuant to subsection F(6), within 15 business
days after the appointment of the panel; or
(c) within any further time, limited to additional 5 business days, to which the party
who has applied for the adjudication review agrees.
(12) An applicant must not unreasonably withhold their agreement under sub-section (11)(c).
(13) Where a panel of review adjudicators is appointed to determine a review application, the
determination shall be decided in accordance with the majority opinion of the review
adjudicators on the panel.
I. Authorised nominating authority must notify persons of review determination
(1) The authorised nominating authority must, as soon as practicable, provide a copy of the
review determination to—
(a) each party to the adjudication review; and
(b) the adjudicator who made the adjudication determination that is the subject of the
adjudication review; and
(c) the Authority.
J. Review adjudicator's fees
(1) A review adjudicator is entitled to be paid for reviewing the adjudication
determination—
(a) the amount, by way of fees and expenses, that is agreed between the review
adjudicator and the parties to the adjudication; or
(b) if no amount is agreed, the amount, by way of fees and expenses, that is reasonable
having regard to the work done and expenses incurred by the review adjudicator.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
15 | P a g e
(2) The claimant and respondent are jointly and severally liable to pay the review
adjudicator's fees and expenses.
(3) As between themselves, the claimant and respondent are each liable to contribute to the
review adjudicator's fees and expenses in equal proportions or, if the review adjudicator
determines otherwise, in such proportions as the review adjudicator may determine.
(4) In deciding the apportionment of fees under subsection J(3), the review adjudicator may
consider the following matters:
(a) the relative success of the claimant or respondent in the adjudication review;
(b) whether respondent party made an application for adjudication review for an improper
purpose or without reasonable basis;
(c) whether respondent party conducted themselves unreasonably during the course of the
adjudication review;
(d) whether the adjudication review application is withdrawn;
(e) the services provided by the review adjudicator in determining the review application,
including the amount of time taken to consider discrete aspects of the amount claimed
and reasons for review; and
(f) any other matters the review adjudicator considers relevant.
K. Review determinations may be enforced as orders of court
(1) A party entitled to be paid an amount under a review determination may enforce the review
determination by filing in a court of competent jurisdiction:
(a) a copy of the review determination that the authorised nominating authority has certified
to be a true copy; and
(b) an affidavit as to the amount not paid under the review determination.
(2) Upon filing under subsection K(1), the review determination is taken to be an order of the
court, and may be enforced accordingly.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
16 | P a g e
L. Judicial review of determinations
(1) A party to an adjudication determination may not bring judicial proceedings to set aside an
adjudicator’s determination without having first obtained a review determination with
respect to the adjudicator’s determination.
M. Publishing of review determinations
(1) The authorised nominating authority must provide a copy of the review determinations
to the Authority.
(2) The Authority shall publish the review determinations in the public domain in a timely
manner.
4.3 Countering the barriers of introducing review mechanisms
There are some barriers resulting from introducing review mechanism into statutory adjudication. The
identified barriers can be confined under three main categories: the additional time, additional cost and
persistent availability of judicial review. The above proposed guidelines have provided solutions for
each category as detailed below:
4.3.1 Additional time
The guidelines call for a fast track review mechanism with a total duration of 20-25 business days in
normal cases and 25-30 business days in complex cases. That is a little price to pay for obtaining a
reliable adjudication outcome. Also, the extra time will not have any negative effect on the object of
the SOP legislation. In contrary, the review mechanism may help improve the flow of cash. This is
because respondents will be required to pay claimants directly in order to access the review mechanism.
Alternatively, respondents must release the undisputed portion of the adjudicated amount and pay the
disputed portion into a trust account if they can prove that claimants will not be able to repay upon the
completion of the review.
4.2.2 Additional cost
The guidelines provide that review adjudicators can apportion their fees depending on many factors
including the conduct of the parties. The guidelines also provide that the review adjudicators have
jurisdiction to order legal costs to compensate a party for any expenses, loss or inconvenience as a result
of the other party’s conduct. This would include situations when a party conducts itself unreasonably
or where a case is obviously frivolous, vexatious or unmeritorious. Furthermore, where the original
adjudicator’s determination is substantially varied as a result of the review; the original adjudicator’s

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
17 | P a g e
fee may be reduced to a base fee rate as may be determined by the review adjudicator. The remaining
fee amount should be refunded to the party who paid that amount.
4.3.3 Persistent availability of judicial review
The availability of review mechanism in Victoria did not stop respondents from seeking judicial review
by bypassing the review mechanism
8
and it seems that the Victorian Supreme Court has overlooked the
Australian High Court’s decision in this regard. As to the use of the discretion to deny certiorari where
there lies another review option, the WA Supreme Court in Re Graham Anstee-Brook; Ex Parte Mount
Gibson Mining Ltd
9
referred to various authorities including the High Court's decision in The Queen v
Cook; Ex parte Twigg
10
and held that “availability of prerogative relief will be undermined by
circumstances where parties could avail themselves of alternative remedies by way of rehearing, appeal
or review.”
11
Therefore, the guidelines expressly provide that a party to an adjudication determination
may not bring judicial proceedings to set aside an adjudicator’s determination without having first
obtained a review determination with respect to the adjudicator’s determination.
On the other hand, judicial intervention in adjudication remains as a problem. Respondents with deep
pockets may exhaust the appeal process to the end whereas the review mechanism is seen as another
step down the appeal process. This barrier cannot be overcome following the High Court authorities in
Kirk
12
which maintained the Supreme Court supervision over adjudication process. However, the
guidelines provided many measures to discourage respondents from seeking judicial review after the
review process. The measures include the requirement to pay the disputed amount, appointment of
experienced review adjudicators, apportionment of higher percentage of adjudication fees to
respondents abusing the system and the award of legal costs.
8
See Maxstra Constructions Pty Ltd v Gilbert t/as AJ Gilbert Concrete [2013] VSC 243; Seabay Properties Pty Ltd v Galvin
Construction Pty Ltd [2011] VSC 183.
9
[2011] WASC 172 [64].
10
[1980] HCA 36 [29],[30],[34]. See also, Re Baker; Ex parte Johnston (1981) 55 ALJR 191 and Martin CJ in Re Carey; Ex
parte Exclude Holdings Pty Ltd [2006] WASCA 219 [128] - [140].
11
See also, Re Graham Anstee-Brook; Ex Parte Mount Gibson Mining Ltd [2011] WASC 172 at [64]; Field Deployment
Solutions Pty v Jones [2015] WASC 136 at [18]; SEF Construction Pte Ltd v Skoy Connected Pte Ltd [2009] SGHC 257.
12
In Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, it was held at [100]: “Legislation which
would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative
power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record
is not beyond power.”

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
18 | P a g e
5. OPTION 2: PROMOTING BEST PRACTICES IN IN DEALING WITH
JURISDICTIONAL ISSUES.
5.1 Summary:
Encouraging adjudicators, who are not required to be legally trained, to determine questions relating to
their jurisdiction is only the tip of the iceberg.
13
This option acknowledges the problems, complexities
and approaches in dealing with jurisdictional objections in statutory adjudication as well as the
consequences of inconsistent case law and ambiguous legislative directions. Accordingly, a roadmap is
proposed with identified six hold points towards necessary reform in the SOP legislation. The impact
of the proposed measures is anticipated to not only provide more transparency and efficiency in the
operation of the SOP legislation but also improve the quality of determinations and eventually reduce
judicial intervention.
The proposed roadmap seeks to address the observed difficulties and deficiencies in the operation of
the SOP legislation regarding the jurisdiction of adjudicators. The roadmap starts from a well-
established need for a better designed adjudication scheme to reinstate the mission of the SOP
legislation as originally intended. As such, the roadmap identifies six key areas (or hold points) which
address the ten controversial matters identified before. The roadmap collates and reconciles the best
relevant practices from each jurisdiction.
5.2 The proposed roadmap:
The six hold points are:
1. The obligation of respondents to raise jurisdictional objections in adjudication response;
2. Making the referral of the case after receipt of adjudication response;
3. Appointment of a legally qualified senior adjudicator if response includes jurisdictional
objections;
4. Providing adjudicators with guidelines to deal with jurisdictional objections;
5. Empowering appointed adjudicators to extend time limits, allow for claimant’s reply and
engage technical experts;
6. Adjudicator’s eligibility for fees upon dismissal of the case for lack of jurisdiction, and
obligation to avoid unnecessary expenses.
13
See Skaik S (2017), The tip of the iceberg, jurisdiction of statutory adjudicators, Construction Law Journal, vol. 33, no. 2,
pp 102-119, Mar 2017.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
19 | P a g e
The discussion below includes a brief rationale of each point:
1- Res pondent’s obligation to raise jurisdictional objections in adjudication response
Since some respondents, who are statutorily entitled to lodge adjudication response, opt not to raise
jurisdictional challenges before the adjudicator for tactical reasons as addressed above, it must be made
clear in the legislation that when a respondent participates in adjudication process, it implies that it
accepts that the adjudicator has jurisdiction to hear the matter and confers jurisdiction on the adjudicator
to determine the dispute
14
and no appeal for challenging enforcement, injunction, declaration or by way
of certiorari would be entertained unless all known or likely to be known jurisdictional objections have
been raised in adjudication response.
15
Moreover, respondents must identify on the face of the response
as to whether they include any jurisdictional objection to facilitate cost and time effective nomination
process by the appointing authority.
2- Making the referral of the adjudication case after receipt of adjudication response
The appointing authority must hold the referral of the application to an adjudicator until the receipt of
adjudication response to be better informed of the nature and complexity of raised arguments in order
to marry each complex application with a suitably qualified adjudicator. Having said that, the appointing
authority, whilst waiting for the lodgement of response, must start shortlisting and contacting potential
adjudicators including legally trained adjudicators. The appointing authority must eventually refer the
application to the most suitable adjudicator, with a copy to both parties. The appointment must be made
within two business days after the end of the period within which the respondent may lodge a response.
The adjudicator’ time limit to make a determination must start from the date of appointment, however,
the adjudicator must notify the parties of the acceptance of the appointment. The adjudicator must have
an express duty to decline the referral or resign by notifying all parties due to complexity of the referred
matter so the appointing authority can make another referral. The impact of this hold point would only
add a few days down the process but would ensure that the right horse is picked up for the right course.
3. Appointment of a legally qualified senior adjudicator if response includes jurisdictional
objections
If the adjudication response includes jurisdictional objections, the appointing authority must only refer
the adjudication application together with the response to a legally qualified adjudicator.
16
This
approach will increase the confidence of the parties with the adjudication outcome and diminish the
14
See Project Consultancy Group v Trustees of The Gray Trust [1999] HT/99/29 at [14].
15
This proposition was followed by McDougall in Oppedisano v Micos Aluminium Systems [2012] NSWSC 53 at [42]-[44].
16
See Red Ink Homes Pty Limited v Court [2014] WASC 52 at [122] where it was implied that legal training can help achieve
a better outcome.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
20 | P a g e
need of judicial intervention. The adjudicator must have appropriate legal qualifications and relevant
experience. Since that criteria may mean different things to different people, it is suggested that the
appointing authority must establish a proper grading system
17
to classify adjudicators based on their
qualifications, expertise and successful track record in dealing with complex legal matters.
4. Providing adjudicators with guidelines to deal with jurisdictional objections
Until the time of writing, there is no guidelines or handbooks whatsoever, save for the UK, that can
assist adjudicators in dealing with jurisdictional objections in each jurisdiction. The need of such
guidelines stems from the fact that many adjudicators, especially those practicing in more than one
jurisdiction may err in determining their jurisdiction by wrongly applying the legislation of one
jurisdiction into another one.
18
Interestingly, an excellent guidance notes on jurisdiction has been made
available to the UK construction adjudicators since May 2011 as an attempt to establish best practices
to assist adjudicators in determining the threshold jurisdiction and maintaining jurisdiction.
19
Such guidelines become more necessary for adjudicators in cases where no adjudication response was
lodged as they must firstly decide whether or not they have jurisdiction before making a determination
of the adjudication application. However, the guidelines, as proposed in this hold point, must cater for
the dynamic nature of relevant case law, therefore, it must be regularly updated to include any legislative
reform or further judicial interpretation of the legislation. The proposed guidelines may be developed
or at least endorsed by the governing authority in each jurisdiction in order to stand as a reliable
reference.
5. Empowe ring appointed adjudicators to extend time limits, allow for claimant’s reply and
engage technical experts
If jurisdictional objections are raised, adjudicators must be entitled to extend the time limits (say, up to
additional five business days) by requesting approval with reasons from the appointing authority to limit
abuse of process. The additional time will help adjudicators to properly consider detailed jurisdictional
objections before proceeding with the determination of the merits of the payment dispute,
notwithstanding the fact that these activities are generally undertaken concurrently.
The adjudicator must also be empowered to allow the claimant at least two business days to reply to
adjudication response if new jurisdictional issues are raised to comply with procedural fairness
17
See, eg, Adjudicator Grading and Referral Policy, Queensland Building and Construction Commission, 2015.
18
See, eg, Department of Construction and Infrastructure v Urban and Rural Contracting Pty Limited [2012] NTSC 22.
19
Construction Adjudication Practice Guidance: Jurisdiction of the UK construction adjudicator, Adjudication Society and
Chartered Institute of Arbitrators, 3rd edition, January 2016.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
21 | P a g e
requirements. In complex cases, the adjudicator must be flexible enough to grant further reasonable
extension of time to claimants to respond.
20
On the other hand, technical issues may be very challenging to legal adjudicators such as using the
correct formula in calculating due payments.
21
Therefore, adjudicators who are mainly selected for their
legal expertise must also be empowered to appoint technical experts such as quantity surveyors and
engineers to assist in complex technical matters that might be raised in addition to legal arguments. In
WA, however, a research involving interviews with 22 adjudicators found that the experts have a neutral
position regarding the necessity of experts.
22
6. Adjudicator’s eligibility for fees upon dismissal of the case for lack of jurisdiction and
obligation to avoid unnecessary expenses or costs
To cater for some adjudicators’ practices assuming jurisdiction for commercial interest, adjudicators
must always be entitled for reasonable fees whether or not an application is eventually dismissed for
lack of jurisdiction.
23
Such entitlement must be made clear in the legislation; otherwise adjudicators
may be disinclined to accept appointments if there is a threat that their fees could be waived. This is
already reflected in the current version of Queensland legislation. However, during decision making
process, an adjudicator must have an express duty to avoid unnecessary expenses and costs. This means
that adjudicators who are satisfied that they have no jurisdiction must make a determination that they
lack jurisdiction and dismiss the case immediately without analysing the case further. It is also
suggested that if adjudicators think that the ground of jurisdictional objection are weak, they must
proceed with the substance of adjudication in order not to undermine the object of the Act.
24
By adopting the entire roadmap, it is arguably fair to deprive adjudicators of their fees if their
determinations are quashed for lack of jurisdiction.
25
20
This approach was implemented recently in Queensland under section 24B of its Act, which gives the claimant the
entitlement for 15 business days in which to lodge a reply to news reasons, which period can be extended up to an additional
15 business days because of complexity, or volume, of new reasons.
21
See, eg, Uniting Church in Australia Property Trust (Qld) v Davenport [2009] QSC 134. In that case, the adjudicator, after
releasing his original decision and following a request from the claimant, attempted to correct the decision, using a completely
different methodology of calculating prolongation cost.
22
See Yung, P, Rafferty, K, McCaffer, R and Thomson, D, Statutory Adjudication in Western Australia: Adjudicator s ’
Views, Engineering, Construction and Architectural Management, 2015, vol 22, no 1, p 67.
23
See Alucity Architectural Product Supply Pty Limited -v- Australian Solutions Centre; Alucity Architectural Product Supply
Pty Limited v Paul J Hick [2016] NSWSC 608.
24
See ABB Power Construction Limited v Norwest Holst Engineering Limited [2000] EWHC 68.
25
See PC Harrington Contractors Limited v Systech International Limited [2012] EWCA Civ 1371, where it was held that
fees were required to be repaid for a total want of consideration.

Samer Sk aik’s Submission in response to Issue Paper: National review of SOP laws
22 | P a g e
6. CONCLUSION
This submission has presented two options for law reform in the security of payment laws aiming to
address two critical problems, mainly, the poor quality of adjudication decisions and excessive judicial
intervention. Those two problems have eroded the object of the SOP legislation in making sure that
subcontractors are able to resolve their payment disputes via an interim, inexpensive and reliable
adjudication process (with minimum lawyers & court involvement) and get paid in a timely manner in
accordance with adjudication determinations. As such, this submission demonstrates two proposed
options which have been tested via a major research project (PhD study) as pragmatic and effective
solutions to counter the two addressed problems. The options promote best practices in improving the
quality of adjudication outcome and minimizing judicial intervention by introducing effective review
mechanisms and necessary steps to deal with jurisdiction of adjudicators.