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Security of payment reforms in Western Australia: a..., Const. L.J. 2020,...
© 2020 Thomson Reuters. 1
Security of payment reforms in Western
Australia: a critique of the introduced
adjudication review mechanism
Dr Samer Skaik*
Journal Article
Construction Law Journal
Const. L.J. 2020, 36(8), 607-631
Subject
Construction law
Keywords
Construction disputes; Reviews; Statutory adjudication; Western Australia
Legislation cited
Building and Construction Industry (Security of Payment) Bill 2020 (Western Australia)
*Const. L.J. 607 Introduction
In June 2020, the Ministry of Commerce of Western Australia released an exposure draft of the Building and Construction
Industry (Security of Payment) Bill 2020 (the Bill). The Bill aims to provide better protections to subcontractors and suppliers
operating in the building and construction sector in Western Australia. The Bill will be introduced into the Parliament later
this year after consultation with selected stakeholders and industry groups. The Bill incorporates many recommendations of
the two recent major review reports: (1) The Commonwealth Governments’ National Review in 2017—Review of Security of
Payment Laws: Building Trust and Harmony by John Murray (Murray Report); and (2) The Final Report to the Minister for
Commerce: Security of Payment Reform in the WA Building and Construction Industry by John Fiocco (Fiocco Report). The
Bill calls for a significant overhaul of the existing security of payment legislation and the key changes can be summarised in
the following aspects:
1. Replacing the current Construction Contracts Act (2004) with a new security of payment legislation that is more
consistent with its counterparts in the East Coast.
2. Introduction of a deemed trust scheme for retention amounts.
3. Strengthen the actions against dodgy building service providers who fail to pay adjudication amounts.
4. Introduction of full adjudication review mechanism in lieu of the limited review avenue within the State
Administrative Tribunal (SAT).
This article critically analyses the Bill with a focus on the proposed adjudication review mechanism (WA Model) and provides
recommendations to improve the proposed drafting in order to better achieve the express object of the new legislation *Const.
L.J. 608 as well as other relevant policies. The analysis will also appraise other relevant sections in the Bill that may diminish
the effectiveness of the WA Model.
Where does the proposed WA Model come from?
Murray Report
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In December 2016, the Commonwealth Government appointed Mr John Murray to lead a national review of security of
payment laws in the Australian building and construction industry. Mr Murray undertook an extensive consultation with various
stakeholders within the building and construction industry and thoroughly analysed best practices in Australia as well as other
jurisdictions aiming to enhance the consistency in security of payment laws and improve protection to small players in terms
of timely payment. In May 2018, the Commonwealth Government released the eagerly awaited Murray Report.1 The Report
included 86 recommendations being the perceived best practices to improve the ineffective security of payment laws in Australia.
Eight recommendations called for the introduction of an adjudication review mechanism into the security of payment legislation
across all states and territories. The eight recommendations by Mr Murray were mainly a result of his consultation with the author
which included a three-hour consultation meeting and a written submission to Mr Murray where the author established the need
to introduce a review mechanism and proposed a review mechanism model (Skaik Model).2 In his report, Mr Murray stated3:
"During the consultation process a number of parties raised the concept of the legislative regime providing an aggrieved party
a limited right to apply for a review of an adjudicators decision. The rationale for this concept was expressed by Mr Samer
Skaik, a leading academic in this field, as follows:
‘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 contactors 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
… *Const. L.J. 609 ’
Introducing 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."
After a thorough analysis as to why the review mechanism could be the way forward in Australia, Mr Murray accepted the
author’s proposition about introducing a review mechanism but was vigilant about the details. In particular, Mr Murray provided
the following conclusion:
"Therefore, whilst I accept Mr Skaik’s proposition that an appropriately designed review mechanism can provide a pragmatic
means of improving certainty, restoring disputants’ confidence and reducing the instances of judicial intervention, much,
however, will depend on the details. In particular, the key challenge will be to strike an appropriate balance between preserving
the rapid and cost-effective nature of adjudication, whilst also providing an aggrieved party with an avenue to apply for review
of an adjudication decision. The review adjudication procedure should have appropriate restraints so as to cause a dissatisfied
party to carefully consider whether it wishes to pursue such option. It should be available to both parties, but only in respect
to disputes involving larger payment claims. An adjudication review should only be lodged with the Regulator (rather than an
ANA) and the Regulator should only appoint the most senior adjudicator available to carry out the review." 4
Mr Murray further provided a detailed model for the review mechanism (Murray Model) which substantially followed the
approach in the Skaik Model that was included in the written submission. However, the Murray Model did not include many
of the essential features of the Skaik Model including but not limited to the need to diminish court involvement by preventing
parties to bypass adjudication review by way of judicial review. That being said, it seems that this feature was overlooked in
drafting the Murray Model but the intention was expressly stated in the Murray Report as follows: "the legislation should clearly
state that if a party is aggrieved by an adjudication decision it should take the step of adjudication review before applying to
the courts to set aside the adjudication decision".5
Fiocco Report
Guided by the recommendations of the Murray Report, the Commonwealth Government engaged with all Building Ministers to
discuss ways to implement the recommendation in the report. Accordingly, the Government of Western Australia appointed Mr
John Fiocco in February 2018 with specific terms of reference including, inter alia, the consideration of the recommendations
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© 2020 Thomson Reuters. 3
in the *Const. L.J. 610 Murray Report and advising about the extent the Government of Western Australia should adopt
those recommendations. In December 2018, the Fiocco Report was released with 44 recommendations to improve the security
of payment laws in Western Australia.6 The Fiocco Report endorsed many recommendations of the Murray Report for
implementation in Western Australia. Interestingly, the Fiocco Report did not endorse any of the eight recommendations
relating to adjudication review mechanism. In reaching that decision, Mr Fiocoo analysed the origin of the adjudication review
mechanism by examining the author’s submission made before Mr Murray. In this regard, Mr Fiocco stated:
"In considering Mr Murray’s recommendations, I have reviewed the submission made by Mr Samer Skaik, an academic in this
field. Mr Skaik quotes Kenneth Martin J in Re Graham Anstee-Brook; Ex Parte Mount Gibson Mining Ltd 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’. I agree with Mr Skaik that this confirms a willingness of the courts to deny prerogative relief
where other review options are available. In this case His Honour was referring to the availability of more traditional paths
of arbitration and litigation to resolve the parties’ contractual rights, but the comments align with views expressed in other
contexts." 7
Interestingly, whilst Mr Fiocco conceded that the underlying proposition of providing a more cost-effective path to appeal
erroneous determinations is fairly attractive, he cited the following quote from the author’s submission as the main reason for
not endorsing the adjudication review mechanism:
"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 which maintained the Supreme Court supervision over adjudication process." 8
Mr Fiocco conceded in his report that litigation is both costly and uncertain for both parties, particularly smaller parties in
the contractual chain. Yet, he emphasised the stakeholders’ concerns that the proposed adjudication review would add another
layer of appeal, thereby delaying cash flow. Therefore, he rejected the notion of adjudication review, recommended to keep the
limited review avenue under the SAT and concluded his reasoning as follows:
"In my view, there is an inherent risk that a review process will take the adjudication scheme further away from the original
intent of ‘pay now, argue later’. While I appreciate the process may in theory provide certainty for parties to larger disputes of
avoiding the costs of Supreme Court litigation, *Const. L.J. 611 in reality it will be viewed as little more than another step
in the process for a well-resourced party" (emphasis added).9
Critique of Fiocco Report
Upon the release of Fiocco Report, the author made a written submission to the WA Government in response,10 commenting
on and rejecting the Fiocco Report ’s recommendations relating to adjudication review mechanisms. In that response, a major
concern was raised relating to the problem of judicial intervention that was also acknowledged in the Fiocco Report, but
unfortunately, the Report did not provide any alternative measures to address it. Rather, the Report declines adopting the only
effective and pragmatic measure being the legislative review mechanism. That being said, the Fiocco Report considered limited
review process within SAT is sufficient and appropriate in relation to dismissal of adjudication applications. It would have been
helpful if the Fiocco Report, at least, expanded the scope of SAT to review erroneous determination on the basis of jurisdictional
errors of law by either party as per the previous calls in this regard. For example, in O’Donnell Griffin Pty Ltd v John Holland
Pty Ltd,11 Beech J examined the object of the WA Act and found that the review by the SAT of an adjudicator’s decision not to
dismiss was "more expeditious"12 and more consistent with the scheme of the WA Act than the "slower and more cumbersome
prerogative relief".13 That proposition, however, was eventually overturned by the Court of Appeal in Perrinepod Pty Ltd v
Georgiou Group Building Pty Ltd.14 The Fiocco Report appears to support the current position that aggrieved respondents
are precluded from challenging the jurisdiction of adjudicators before the SAT rather than the Supreme Court. In addition, the
Fiocco Report accepts the fact that erroneous determinations on merits will continue to be immune from any scrutiny or review.
That is completely inconsistent with the object of the Act as well as policy considerations that aim to improve fairness, certainty
and confidence in the security of payment regime.
Indeed, a full adjudication review mechanism is seen as a much more effective and efficient approach than any measures taken
by Supreme Courts to protect the object of the legislation by the way of severance or remittance of erroneous determinations.
The Skaik Model requires respondents to release the unpaid portion of adjudicated amount to the claimant whilst paying
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the remaining disputed amount into a trust account as a precondition to access the review. This maintains the unanimously
agreed principle: "pay now argue later". The Skaik Model expressly requires the parties to exhaust the available remedy of the
review mechanism prior to seeking judicial intervention.15 This is a fundamental difference between the *Const. L.J. 612
Skaik Model and all other models including the Murray Model. Having said that, the Supreme Court as confirmed in Kirk v
Industrial Relations Commission of New South Wales 16 will continue to supervise adjudication after the parties had exhausted
the legislative review mechanism and remain dissatisfied. That would ensure that payment will be released from the trust account
to the successful party in adjudication review and the aggrieved party can argue later by way of judicial review.
Neither the Murray Report nor the Fiocco Report addressed the overwhelming judicial intervention in statutory adjudication
that frustrates the very object of the security of payment legislation of promoting prompt payment. The two Reports did not
provide effective remedies for claimants who received favourable adjudication determinations but could not enforce it as a
result of the respondents (with deep pockets) opting to challenge determinations by way of judicial review. On the contrary, the
Fiocco Report proposed the following amendments to the Building Services (Registration) Act 2011 (WA) which will likely
motivate respondents, who are unwilling to make payment for any reason, to seek judicial review in order to be exempted from
the disciplinary action under the proposed reform:
"The amendment to the BSR Act should make it clear that a disciplinary matter does not arise where the building service provider
has: a. commenced proceedings to suspend or set aside the unsatisfied judgment debt, adjudicator’s determination, arbitrator’s
award or finding made by another person or body; or b. commenced proceedings in relation to an amount determined by an
adjudicator under the SOPA as payable by the building service provider." 17
The overwhelming involvement of lawyers in adjudication does not reconcile with the purpose of the SOP legislation that was
primarily devised to help a vulnerable class of subcontractors. Those subcontractors will not be able to cope with the tremendous
dynamic case law on adjudication when they prepare or defend their claims before the Supreme Court. They are left with no
option but to engage lawyers to handle their claims where none of the legal costs will be recovered even if they get a favourable
adjudication decision. Eventually, the cost incurred on being involved in the adjudication process and/or later judicial review
proceedings may eat up a major portion of the adjudicated amount making the process less viable and attractive to many small
players in the industry.
It was pleasing that the WA Government considered the author’s feedback and presented draft legislation that completely
ignored the recommendations of the Fiocco Report about adjudication review. Accordingly, the Bill included a new model for
the adjudication review mechanism with some differences from the *Const. L.J. 613 Skaik Model and the Murray Model as
explained later in this article. The new model was introduced in Part 3, Division 3, ss.39–48 of the Bill under the title "Review
of Adjudication". Before reviewing the model, it becomes necessary to answer the question as to why a full review mechanism
is really required under any security of payment legislation.
Why a full adjudication review?
The introduction of adjudication review mechanism in the Bill is greatly welcomed and highly rewarding. The introduction
of the adjudication review mechanism was central to the author’s research since 2014. The Author published many relevant
articles18 and completed a PhD thesis entitled "Introducing review mechanism into statutory construction adjudication".19 The
Author included the following statement in the thesis abstract:
"The findings of this study, whilst they are very relevant to Australia, they can be applied with minor alterations to suit other
jurisdictions operating equivalent security of payment legislation. It is hoped that the recommendations of this study will be
considered by concerned policy makers and governmental agencies seeking to apply best practices to improve security of
payment laws."
Indeed, the available evidence from the author’s research revealed that an appropriately devised review mechanism of
adjudication determinations could be a solution to many problems. The whole notion of introducing review mechanisms is
to facilitate swift cash flow down the construction contractual chain and deter respondents from seeking judicial review as a
delaying tactic. It is a safety net that can capture erroneous determinations away from the court system which will improve
industry confidence and certainty in adjudication outcomes. As such, for the review mechanism to be effective and serve the
purpose, in its own right, it must pass the following checklist:
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It offers 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.
It acts 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. *Const. L.J. 614
It reinstates the industry confidence in the adjudication process and determinations.
It enhances the certainty in the adjudication process and outcome which ultimately helps increase the use of the regime
and inform claimants’ decisions of suspending works for non-payment.
It improves the quality of original determinations where adjudicators become more vigilant in making their
determinations fearing the review.
It deters respondents from delaying the release of adjudicated payment by seeking judicial review.
It decreases Supreme Court case load, where most of the cases can be captured by the review avenue.
In order to meet the requirements of the above checklist, any proposed model of adjudication review mechanism must include
the following essential express provisions:
1. Aggrieved respondents must pay the undisputed adjudicated amounts to claimants in order to access the review. In
addition, aggrieved respondents must pay disputed amounts into a trust account which will be released immediately
to the successful party in the review.20
2. Review adjudicators must have both competency and jurisdiction to answer questions of law or fact including those
related to jurisdictional issues.21
3. Judicial review applications to set aside adjudication determinations must not be entertained unless the parties have
firstly exhausted the alternative remedy of the legislative adjudication review.22
Critique of the Bill
The Bill included an overarching object of the security of payment legislation being to provide an efficient and fair process
for security payment to persons who undertake construction work or supply related goods and services (s.3(1)). The object
is primarily achieved by, inter alia, establishing an expedited procedure for the adjudication of payment disputes (s.3(2b)).
Interestingly, this object did not include the terms "informally" and "inexpensively" for the adjudication process as the case is in
the current version of the Construction Contracts Act (2004) under s.30. As such, this raises a legitimate question as to whether
the new legislation only aims to achieve a quick and fair determination, refraining from the original obligation to maintain an
inexpensive and informal adjudication process. The Bill is akin to the security of Payment Act currently in place in New South
Wales to a *Const. L.J. 615 great extent. The main departure from the NSW model is the introduction of the adjudication
review mechanism. The adjudication review model is structured in the Bill as per the following arrangement:
Section 39: When claimant or respondent may apply for review of adjudication
The section provides that both parties have the right to access the review mechanism if the disputed amount exceeded the amount
prescribed by legislation which is currently proposed in the Bill as $200,000. This means that any disputed amount below this
"high" threshold can only be resolved via traditional legal proceedings. The proposed threshold amount is double the amount
prescribed in the Skaik Model and the Murray Model as well as the two existing review mechanisms in Singapore and Victoria
(e.g. $100,000). Furthermore, the section provides that the application must be served within five business days after the release
of adjudication determination. The respondent should have served a valid payment schedule in order to access the review. This
means that respondents who served a payment schedule but failed to lodge an adjudication response are eligible to access the
review. In addition, the claimant is also entitled to access the review mechanism if the adjudicator decides that no amount is
payable upon his or her decision that they have no jurisdiction to determine the application in accordance with s.36. However,
the section is silent as to whether the claimant may bypass the review mechanism and seek remedy by way of judicial review.
The section is also silent as to whether the claimant can also access the review avenue to challenge adjudication determination
on jurisdictional grounds such as denial of procedural fairness. Likewise, the section does not provide the respondents with
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an express right to access the review on jurisdictional grounds. That would leave the door open for both parties to challenge
the original determination by way of judicial review rather than engaging in the legislative review process. That would be an
attractive option to respondents as they will avoid paying the adjudicated amount in trust.
Section 40: Adjudicated amount to be paid into a trust account before the respondent may make adjudication review
application
The section provides another precondition for the respondent to be able to access the review and requires the adjudicated amount
to be paid into a trust account established within a recognised financial institution. The section, however, does not state whether
the undisputed portions of the adjudicated amount must be paid first to the claimant.
Section 41: To whom adjudication review application is made
The section provides that the review application must be made to an Authorised Nominating Authority (ANA) chosen by the
party making the application. This means that the parties are precluded from having a mutual agreement on the appointing body
upon the rise of a payment dispute which may jeopardise the *Const. L.J. 616 confidence and engagement of the other party
in the adjudication review process. Furthermore, the appointment seems inconsistent with the process of appointing the original
adjudicator under s.29 whereas an application can be made to a prescribed adjudicator or ANA under the construction contract;
and in case of no agreement, the claimant can choose the ANA. Interestingly, the appointment of the original adjudicator seems
to be ineffective as it does not address the persistent problem of the imbalance of bargaining powers in negotiating fair contract
terms.23
Section 42: Requirements relating to adjudication review application
The section provides specific procedures for making a review application and requires the applicant to make the application in
writing and provide a copy of all relevant documents made before the original adjudicator plus the adjudication determination.
The section allows the applicant to include further submissions relevant to the application but precludes the inclusion of any
new reason unless those reasons were raised before the original adjudicator. The section is silent as to whether jurisdictional
objections are considered reasons for the purpose of this section. Likewise, this clarity is needed regarding raising new
jurisdictional arguments or objections in the adjudication response before the original adjudicator under s.33(3). On the other
hand, the section provides that the applicant must give a copy to the other party within one business day. The applicant must
also provide an application fee as determined by the ANA.
Section 43: Withdrawal of adjudication review application
The section provides the applicant the right to withdraw the review application by giving a written notice to the other party
and the ANA. This provides some flexibility for the parties to amicably settle the payment dispute following the release of
adjudication determination rather than engaging in a further review process.
Section 44: Appointment of review adjudicator
The section provides that the ANA must appoint the review adjudicator within five business days after the application is made
and provide a copy to the Building Commissioner and original adjudicator. The section is silent about the criteria of selecting
the review adjudicator which leaves the door open for appointment of incompetent review adjudicators. However, the brief
explanatory statement of the Bill states that the review adjudicator must be graded as a senior adjudicator.
Section 45: Adjudication review response
The section provides that a response to the review application must be made within 10 business days after receiving a copy
of the review application. This duration is excessive and unnecessarily delaying the final outcome which is inconsistent with
*Const. L.J. 617 an express object of the legislation being to provide a quick adjudication process.24 It is also inconsistent
with the current practices in other jurisdictions that have a review mechanism. For example, in Victoria, the responding party is
allowed three business days only to lodge a response to the review application. Interestingly, in Singapore, there is no express
provision that gives the party any right to lodge a response to the review application.
Section 46: Adjudication review procedures
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This section requires the review adjudicator to only consider the matters raised before the original adjudicator in addition to the
review application and response. The review adjudicator must not consider a response to the review application if served after
the allowed time. Furthermore, the review adjudicator must not consider any reasons not raised in the original adjudication.
The section is silent as to whether jurisdictional objections raised before the original adjudicator can be raised before the review
adjudicator. The section also provides that the review adjudicators may determine their own procedure if that is not regulated
under the Act.
Section 47: Time allowed for review adjudicator to determine adjudication review application
This section requires the review adjudicator not to determine the review application until after the response is given or until
after the last date on which the response could have been given. The review adjudicator must determine the application within
10 business days after the response is given or could have been given. The parties can grant a review adjudicator an extension
of time up to 20 business days to determine the review application. However, this may put a party who is not prepared to give
extension in a difficult position with the review adjudicator. In Victoria, the review adjudicator may apply for extension of time
up to five business days from the applicant only. Furthermore, the extension duration to make a review determination seems
excessive and inconsistent with the quick nature of adjudication process. The section also provides that if the review adjudicator
fails to make a determination within the time limits, the applicant may withdraw the review application and make another one
withing five business days. Furthermore, a review determination is not invalid merely because it is made after the allowed time.
Section 48: Review adjudicator’s determination
The section requires the review adjudicator to either confirm the determination of the original adjudicator or quash it and make
a new determination. The new determination must determine the payable amount, the due date for the payment, the rate of
interest payable as well as the reasons of that determination. The section also gives the review adjudicator the power to correct
the review determination if it contains a clerical mistake or accidental error. The section does not provide the *Const. L.J. 618
review adjudicator with any power to order legal costs or alter the fees of the errant original adjudicator.
What needs to be improved?
There are four key principles underlying the effective adjudication of payment disputes under the security of payment legislation:
The adjudication should be pro-claimant by applying "pay now argue later" principle and expedite the security or
release of due payments to claimants.25
The adjudication should ensure minimal court and lawyer involvement.26
The adjudication must be capable of resolving all payment disputes by the means of quick, inexpensive and informal
process.27
The adjudication must provide both parties with procedural fairness, certainty and temporary finality to maintain
industry confidence.28
Taking the four principles into consideration, the following problems or lacunas have been identified in the Bill that would
jeopardise the above principles in part or in full:
1. Lack of rigor in adjudicator appointment:
The Bill allows adjudication response to be served after the adjudicator’s appointment. The ANA will choose an
adjudicator upon the initial assessment of the adjudication application based on their technical expertise only and may
not appreciate the possibility for the adjudication response to include jurisdictional arguments which would require
legally trained adjudicators to deal with. The Bill does not preclude respondents from raising jurisdictional objections
in their response which usually include complex legal submissions that would need legally trained adjudicators to
be appointed in the first place. This will compromise the proper selection of adjudicators.29 Furthermore, allowing
parties to agree the ANA or adjudicator in the contract is not ideal considering the inherent problem of imbalance
in bargaining powers.
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2. Ambiguity regarding the new reasons:
The Bill does not state whether jurisdictional objections raised for the first time in adjudication response are
considered new reasons. *Const. L.J. 619 Whilst respondents are required to mention the reasons for withholding
payment in their response to the payment claim, it is quite possible that jurisdictional objections are only raised in
the adjudication response after the adjudicator has been appointed.30 That approach has multiple risks, including
having a potentially valid ground rejected for want of prosecution or excluded by operation of the various statutory
provisions31 excluding new reasons.32 The reasons why many respondents do not address jurisdictional issues in their
response to the payment claim may basically be attributed to practical aspects including the high expenses and efforts
in establishing jurisdictional arguments in responding to each payment claim as well as the proposition that claimants
may not be serious to take their claim further to adjudication. Likewise, the claimant might not have proceeded with
adjudication if the respondent had set out the jurisdictional challenges in the payment schedule and the investment of
time and money in serving the adjudication application could probably have prevented the claimant from withdrawing
it upon their awareness of the new issues raised in the adjudication response. The Victorian and Queensland SOP Acts
deal with new reasons in adjudication response differently and have some flexibility to achieve procedural fairness.
This was also the case in the current legislation in Western Australia. In the UK, there is an established law principle33
that it is necessary for a party to adjudication, challenging the jurisdiction of the adjudicator, to reserve its position
in relation to its challenge. If it does not reserve its position effectively, generally it cannot avoid enforcement on
jurisdictional grounds.
3. Continuity of delaying tactics and judicial intervention:
The Bill does not provide security of payment as many claimants will still be deprived from prompt payment
following favourable adjudication determination since respondents (with deep pockets) usually seek judicial review
as a delaying tactic. Respondents will continue seeking judicial intervention to avoid releasing the payment to
the claimant and/or invalidate any disciplinary action for non-payment. One incentive for respondents to do so is
the fact that security of payment legislation does not protect insolvent contractors.34 The Bill does not preclude
respondents from seeking judicial intervention prior to trying the review mechanism as a more *Const. L.J. 620
convenient remedy which is inconsistent with the doctrine relating to the exhaustion of an alternative remedy.35
Respondents are still able to bypass the proposed adjudication review and apply to the Supreme Court to have the
original determination quashed in the nature of certiorari to avoid paying adjudicated amounts into a designated
trust account.36 This ignites the uncertainty. Furthermore, the Bill included proposed amendments to s.53(5) of the
Building Services (Registration) Act 2011 (WA) which seems to encourage rogue respondents to seek judicial review
to set aside the adjudication determination in order to be exempted from any disciplinary action under the Act.
4. The uncertain scope of adjudication review:
The Bill does not provide review adjudicators with any power to deal with jurisdictional challenges save for reviewing
the original adjudication decision that no payment is payable to the claimant for lack of jurisdiction. The Bill is silent
as to whether review adjudicators have jurisdiction to review an adjudication determination if the appellant raises
jurisdictional objections for the first time before the review adjudicator. In Singapore, there has been an overwhelming
legal development to deal with this uncertainty in recent years.37
5. Uncertain consequences of suspension:
The Bill gives claimants a statutory right for suspension if the scheduled amount is not paid or if the scheduled
payment is not served on time. However, claimants will be liable for consequences if the determination is set aside by
way of adjudication review or judicial review. The consequences of any work suspension may be devastating if the
adjudication determination is eventually quashed.38 In addition, the claimant will be more hesitant and reluctant to
apply for further adjudications on other payment claims until certainty materialises upon the outcome of the review
process. The claimant may also compromise its right and be compelled to settle the issue with the respondent to
avoid the huge expense and delay in going to court to defend the validity of the determination. In Singapore, the
claimant has a limited statutory right to suspend work which only takes place if the adjudicated amount is not paid
on time.39 Probably, this arrangement was made to achieve more certainty and help diminish the inherent risks of
unsubstantiated suspension. *Const. L.J. 621
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How to improve adjudication review mechanism in Western Australia
The table below demonstrates a comparative analysis of the four models of full adjudication review with a commentary on how
to amend the relevant sections in the Bill in order to address the identified problems above:
Table 1: Comparison between all models of full adjudication review mechanisms
Review features
Skaik Model (2016)
Murray Model (2017)
Singapore Model (as
amended in 2018)
WA Model (2020)
Proposed amendments or
comments
Who is eligible to apply
Either party.
Either party.
Either party.40
Either party.
No amendment.
The precondition for
respondents to access
the review
Serve a payment
schedule, pay
adjudicated amount
and meet threshold
requirements.
Serve a payment
schedule, pay
adjudicated amount
and meet threshold
requirements.
Serve a payment
response, pay
adjudicated amount
and meet threshold
requirements.
Serve a payment
schedule, pay
adjudicated and meet
threshold requirements.
No amendment.
The precondition for
claimants to access the
review
If the adjudicator
dismisses the
application for lack
of jurisdiction and the
claim meets threshold
requirements.
If the adjudicator
rejects the adjudication
application and the
claim meets threshold
requirements.
The claim meets
threshold requirements.
If the adjudicator
determined no amount
is payable for lack
of jurisdiction or the
claim meets threshold
requirements.
The Bill must expressly
provide a prescribed
threshold in cases where an
aggrieved claimant, whose
application was dismissed on
lack of jurisdiction, opts to
access the review mechanism
in order not to abuse the
system with trivial claims and
ensure that only applications
with substantive amounts in
economic terms are subject
to review (i.e. minimum of
$50,000). *Const. L.J. 622
Availability of review
of determinations by
adjudicators mutually
agreed by parties
Allowed
Not allowed
Not applicable41
Allowed
The Bill did not follow
the Murray Model. It is
understood that the right of
both parties to access the
review must be allowed for
the simple reason that the
mutually agreed adjudicator
may have also got it wrong.
Furthermore, the mere
availability of the review
mechanism will make the
mutually agreed adjudicator
more vigilant in making the
determination.
Threshold for review
Disputed amount is
$100,000 or more.
Disputed amount is
$100,000 or more.
Disputed amount is
$100,000 or more.
Disputed amount is
$200,000 or more.
It is important to specify
the threshold being the real
amount remaining in dispute
not merely the adjudicated
amount. Furthermore, the
$100,000 threshold was
based on best practices and
empirical evidence as it
ensures that cases subject
to review have sufficient
substance in economic
terms. This will provide the
parties with an alternative
convenient and affordable
remedy than judicial review.
Disputed amounts less than
$100,000 are unlikely to
motivate parties to seek
judicial intervention.
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Status of the
adjudicated amount
subject to review
Respondents must pay
undisputed adjudicated
amounts to claimant
and the rest into a
trust account within an
independent entity.
Respondent must pay
the adjudicated amount
into a designated trust
account.
Respondent must pay
the adjudicated amount
to the authorised
nominating body.
Respondent must pay
the adjudicated amount
into a trust account
within a recognised
financial institution.
It is quite possible that the
party may dispute one portion
of the adjudicated amount
NOT the *Const. L.J. 623
entire amount. Requiring
the undisputed adjudicated
payment to be made first
will promote "pay now
argue later" and strike the
balance between accuracy
of adjudication outcome
and lengthy adjudication.
There is no reason not to
release unaffected payments
to claimants directly before
accessing the review.
*Const. L.J. 624
Scope of review
Merits and jurisdiction.
Merits and
jurisdiction.42
Merits only.43
Merits and
jurisdiction.44
The Bill must provide an
explicit section to specify
the scope of the review
available to respondents
if it includes a review on
jurisdictional grounds. This
should include challenges
of jurisdiction by either
the claimant or respondent
during adjudication or
after the release of a
determination. The Bill
must clearly state that the
nil amount determination
of an adjudicator based
on lack of jurisdiction is a
determination within the
purpose of the Act to avoid
legal arguments later on. It
is quite necessary that the
review model provides clear
procedures to avoid further
challenges of the entire
review process. *Const. L.J.
625
New reasons
Not allowed. However,
the model states that
respondents must
raise reasonably
known jurisdictional
challenges before the
original adjudicator.
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.
Not allowed.
Not allowed including
jurisdictional
challenges unless the
objection arose after
lodging adjudication
response or respondent
could not reasonably
have known of the
reasons, or it relates to
a patent error.45
Not allowed.
The Bill must distinguish
between new reasons to
withhold payment and
jurisdictional challenges
raised by either party. The
Bill should provide both
parties the right to challenge
the jurisdiction of original
adjudication determination
before the review adjudicator
as long as that challenge
was raised before the
original adjudicator. The
Bill must make it clear that
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.
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Number and
qualification of review
adjudicators
Senior adjudicator
or a panel of three
adjudicators if the
application is too
complex or the original
adjudicator was graded
as senior adjudicator.
The most senior
adjudicator.
A review adjudicator;
or a panel of review
adjudicators (for claims
above $ 1 million).
One adjudicator
The Bill must state that
the criteria of appointing
a review adjudicator in
terms of seniority and
grading. The ANA shall not
appoint a review adjudicator
who has been involved
directly or indirectly with the
adjudication determination
that is the subject *Const.
L.J. 626 of the adjudication
review. *Const. L.J. 627
The appointing bod y
A review application
must be made to an
ANA 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 ANA
to which the review
application shall
be made. A review
application shall
not be made to the
same ANA to which
the adjudication
application was made.
A review application
must be made to the
Regulator.
A review application
must be made to the
same ANA.46
A review application
must be made to an
ANA chosen by the
party making the
application.
The Bill allows the parties to
have mutual agreement on
the original adjudicator or the
ANA while it does not do so
for the review adjudicator.
Mutual agreement on
appointment will increase
the parties’ confidence of the
outcome but this arrangement
must be done on an ad hoc
basis upon the rise of a
dispute to respond to the
concerns about imbalance
power in negotiating contract
terms. It might be best to
only follow the Victorian
Act in mutually agreeing the
preferred ANA rather than
the identity of adjudicators
in the contract. Regulators
will have less workload if
they are only required to
nominate an ANA to appoint
rather than a competent
adjudicator. The regulator,
then, would not be involved
in the review process which
is left to ANAs that are
more experienced and well
resourced. Requesting the
review applicant to choose
a different ANA to its
counterpart involved in the
original application helps
avoid any apprehended bias
or conflict of interest by the
original ANA. *Const. L.J.
628
Time to make a review
application
5 business days.
5 business days.
7 days.
5 business days.
No amendment.
Time to give a copy of
the review application
to the other party
1 business day.
1 business day.
Not stated. The
authorised nominating
body to serve the copy
to the other party.
1 business day.
No amendment.
Time to appoint a
review adjudicator
5 business days.
3 business days.
7 days.
5 business days.
No amendment.
Time to submit a
response to the review
application
3 business days.
5 business days.
Not allowed.
10 business days.
The Bill prolongs the
duration of review
mechanism by doubling
the duration for serving
a response to the review
application. This is
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inconsistent with the object
of the Act and all other
models.
Time to make a
determination of a
review application
10 days after receiving
the response to review
application in the case
of a single adjudicator,
15 days in the case of
three adjudicators.
10 business days.
14 days after
commencement of
adjudication review.
10 business days.
No amendment.
Time extension to
review adjudicator
Up to business 5 days.
Up to 5 business days.
As requested by the
review adjudicator and
mutually agreed.
Up to 20 days by
mutual agreement.
The Bill should specify a
maximum EOT of business
days to maintain the object
of the Act. The Bill should
avoid provisions that may
put review adjudicators in
a confronting position with
the parties whereas one party
refusing to give extension
may feel intimated.
Jurisdiction of
review adjudicator to
determine questions of
law or fact
The review adjudicator
must have jurisdiction
under the legislation
to determine questions
of law or facts raised
by either party
including those relating
to jurisdictional
objections.
Not stated.
Not stated.
Not stated.
The review adjudicators must
explicitly have jurisdiction
*Const. L.J. 629 to
investigate any type of
questions of law or fact.
This provision will close the
floodgate for challenging
the jurisdiction of review
adjudicators to review
questions of law relating
to jurisdiction of original
adjudicators. It will also
provide a more convenient
remedy for aggrieved party
and reduce the caseload in
supreme courts.
Jurisdiction of
review adjudicator
to determine original
adjudication fee or
order legal cost
The review adjudicator
has jurisdiction to
reduce the rate of the
original adjudicator
and order legal costs
if a party did not act
in good faith. 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 conduct.
This would include
situations when a
party conducts itself
unreasonably or where
a case is obviously
frivolous, vexatious or
unmeritorious.
No jurisdiction to order
fees or costs.
No jurisdiction to order
fees or costs.
No jurisdiction to order
fees or costs.
Errant adjudicators should
only be paid their base rate
costs, but it is unfair to
charge a full fee rate for
erroneous determinations.
Ordering legal costs
will deter either party
from abusing the review
mechanism unless they
have a reasonable chance of
success. *Const. L.J. 630
Judicial review of
original adjudicator’s
appointment or
determinations
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
No restrictions.
The respondent may
not commence judicial
proceedings to set
aside an adjudicator’s
determination if
the objection was
not included in
the adjudication
response unless the
No restrictions.
The Bill must include a
section 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
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with respect to
the adjudicator’s
determination.
circumstances of the
objection were not
known at the time.
The respondent must
pay the unpaid portion
of the adjudicated
amount into the court
as security.
determination. This will
comply with the doctrine
of exhaustion of alternative
remedies.47 Having said
that, the Supreme Court
as confirmed in Kirk will
continue to supervise
adjudication after the parties
have exhausted the review
mechanism and remain
dissatisfied. That would
ensure that payment has been
released upon the release of
review determination and
any dissatisfied respondent
can "argue later" by way of
judicial review. However, the
Bill must define what would
amount to a jurisdictional
error and whether denial of
natural justice is considered a
jurisdictional error that could
be severed.
Publication of review
determinations
Allowed.
Not allowed.
Not allowed.
Not allowed.
Allowing the publication of
review determinations will
help improve the quality
of original determinations.
The review determinations
*Const. L.J. 631
should be censored for
confidentiality and published
to give adjudicators the
opportunity to see how sound
determinations should be
made. Published review
determinations provide
some sort of scrutiny.
Adjudicators by reading
the published decisions will
learn how to improve their
reasoning. There is no doubt
that adjudicators now are
a lot better at not falling
into a jurisdictional error
because there have been
many published decisions
about what is jurisdictional
error and what is not.
Conclusion
Western Australia has initiated a significant overhaul of its security of payment laws and released a draft Bill in June 2020
for consultation. This article examines the recent development with emphasis on the newly introduced adjudication review
mechanism within the Bill. If enacted, Western Australia will be the first Australian jurisdiction to operate security of payment
legislation with a full adjudication review mechanism. This article starts with a critical review of the recent debate regarding
the origin and efficacy of adjudication review mechanism in the Australian context. The article provides a critique of the new
Bill and identifies many lacunas in the current drafting. The article concludes by suggesting many recommendations moving
forward based on the best practices. The recommendations aim to provide clarity about some aspects including, but not limited
to, the scope of adjudication review, dealing with jurisdictional objections and precluding parties to seek judicial intervention
unless adjudication review determination is released.
Dr Samer Skaik
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Footnotes
1John Murray, "Review of Security of Payment Laws: Building Trust and Harmony", Department of Jobs and Small Business, December 2017.
2Samer Skaik, "Submission for National Review of Security of Payment Laws in Australia: Issue Paper" (May 2017).
3Murray, "Review of Security of Payment Laws: Building Trust and Harmony", Department of Jobs and Small Business, December 2017,
p.199.
4Murray, "Review of Security of Payment Laws: Building Trust and Harmony", Department of Jobs and Small Business, December 2017,
p.200.
5Murray,"Review of Security of Payment Laws: Building Trust and Harmony", Department of Jobs and Small Business, December 2017,
p.200.
6John Fiocco, "The Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry",
October 2018.
7Fiocco, "The Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry",
October 2018.
8Fiocco, "The Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry",
October 2018, p.184.
9Fiocco, "The Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry",
October 2018, p.184.
10 Samer Skaik, "My response to Murray and Fiocco Reports on security of payment reforms in Australia", 30 December 2018.
11 [2009] WASC 19 (Beech J).
12 [2009] WASC 19 at [122].
13 [2009] WASC 19 at [131]. See also Thiess Pty Ltd v MCC Mining (WA) Pty Ltd [2011] WASC 80 at [44] (Corboy J).
14 [2011] WASCA 217 at [129].
15 In Western Australia, Mitchell J in Field Deployment Solutions Pty v Jones [2015] WASC 136 considered a judicial review application against
two adjudicators’ decisions to dismiss (bypassing the available review mechanism by the SAT) and held at [18]: "The fact that an alternative
remedy was available but not engaged is ordinarily a powerful factor against the grant of a discretionary remedy by way of judicial review."
In Queensland, Applegarth J in BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No.2) [2013] QSC 67, referred to various
authorities and noted at [8]: "one discretionary ground to decline to order certiorari is where there are alternative and adequate remedies for the
wrong of which complaint is made". In Victoria, the security of payment legislation is silent about bypassing the review mechanism by way
of judicial review which encouraged aggrieved parties to bypass the more convenient remedy. Furthermore, the Supreme Court did not reject
this practice in Maxstra Constructions Pty Ltd v Gilbert t/a AJ Gilbert Concrete [2013] VSC 243 and Seabay Properties Pty Ltd v Galvin
Construction Pty Ltd [2011] VSC 183.
16 [2010] HCA 1.
17 Fiocco, Fiocco, "The Final Report to the Minister for Commerce: Security of Payment Reform in the WA Building and Construction Industry",
October 2018, p.76.
18 See, e.g. Samer Skaik, "An empirical study: How to introduce effective review mechanisms into statutory adjudication?" (2017) 33(4)
Construction Law Journal 301–320; Samer Skaik, "Operational problems and solutions of statutory complex adjudication: stakeholders’
perspectives" (2017) 9(2) International Journal of Law in the Built Environment 162–175; Samer Skaik, "Effectiveness of existing
adjudication review mechanisms: Views of industry experts" (2017) 33(3) Construction Law Journal 233–245; Samer Skaik, "The tip of
the iceberg, jurisdiction of statutory adjudicators" (2017) 33(2) Construction Law Journal 102–120; S. Skaik, J. Coggins and A. Mills,
"Towards diminishing judicial intervention in Australia: A pragmatic proposal" (2016) 32(6) Construction Law Journal 659–675; Samer
Skaik, "Taking Statutory Adjudication to the next level: A proposal for Legislative Review Mechanism of Erroneous Determinations" (2016)
33(3) International Construction Law Review 287–311; S. Skaik, J. Coggins and A. Mills, "The big picture: causes of compromised outcome
of complex statuary adjudication in Australia" (2016) 33(2) International Construction Law Review 123–147.
19 Samer Skaik, "Introducing review mechanisms into statutory construction adjudication" (2017), PhD thesis, Deakin University, http://
dro.deakin.edu.au/eserv/DU:30103435/skaik--introducingreview-2017.pdf [Accessed 21 October 2020].
20 Samer Skaik, "An empirical study: How to introduce effective review mechanisms into statutory adjudication?" (2017) 33(4) Construction
Law Journal 301–320.
21 Samer Skaik, "The tip of the iceberg, jurisdiction of statutory adjudicators" (2017) 33(2) Construction Law Journal 102–120.
22 Exhaustion of alternative remedies before seeking judicial review is an established doctrine in the administrative law. See the High Court’s
decision in The Queen v Cook; Ex p. Twigg [1980] HCA 36 at [29], [30] and [34]; Re Baker; Martin CJ in Re Carey, [Ex p. Exclude Holdings
Pty Ltd [2006] WASCA 219 at [128]–[140]. See also Re Graham Anstee-Brook; Ex Parte Mount Gibson Mining Ltd [2011] WASC 172; 42
WAR 35 at [64]; SEF Construction Pte Ltd v Skoy Connected Pte Ltd [2009] SGHC 257; Comptroller of Income Tax v ACC [2010] SGCA 13;
Borissik Svetlana v Urban Redevelopment Authority [2009] SGHC 154.
23 Murray, "Review of Security of Payment Laws: Building Trust and Harmony", Department of Jobs and Small Business, December 2017, p.xiv.
24 See s.3 of the Bill.
25 See RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd [2002] EWCA Civ 270; [2002] 1 W.L.R. 2344; Multiplex
Constructions Pty Ltd v Luikens [2003] NSWSC 1140 at [96] (Palmer J); John Holland Pty Ltd v Roads and Traffic Authority of New South
Wales [2007] NSWCA 140.
26 Brodyn Pty Ltd t/a Time Cost and Quality v Davenport [2004] NSWCA 394 at [51]; Minimax Fire Fighting Systems Pty Ltd v Bremore
Engineering (WA Pty Ltd) [2007] QSC 333 at [20]; Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture [2009] VSC 426 at [115].
27 See Construction Contracts Act 2004 (WA) s.30; Construction Contracts (Security of Payments) Act 2004 (NT) s.26. See also the Minister’s
Second Reading Speech (WA Hansard, 3 March 2004), p.275.
28 P. Gerber and B. Ong, Best Practice in Construction Disputes: Avoidance, Management and Resolution (LexisNexis, 2013).
29 Skaik, "The tip of the iceberg, jurisdiction of statutory adjudicators" (2017) 33(2) Construction Law Journal 102–120.
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© 2020 Thomson Reuters. 15
30 In Singapore, the Court of Appeal in Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd [2018] 1 S.L.R. 317 held that the respondent
has a duty to speak and raise all jurisdictional objection in the payment response that they intend to raise in adjudication, and that failure to do
so will give rise to an estoppel at adjudication.
31 See s.20(2B) of NSW Act.
32 See John Holland Pty Ltd v Roads & Traffic Authority of New South Wales [2007] NSWCA 19 at [29] and Oppedisano v Micos Aluminium
Systems [2012] NSWSC 53.
33 See Allied P&L Ltd v Paradigm Housing Group Ltd [2009] EWHC 2890 at [32].
34 See the new s.32B of the SOP Act (NSW) which expressly prohibits a corporation in liquidation from serving payment claims. The section
supersedes the recent decision in Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq.) [2019] NSWCA 11. See also Treatment
Engineering Pty Ltd (in liq.) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247.
35 See Exhaustion of alternative remedy doctrine, fn.22 above.
36 Aggrieved respondents applying for an order in the nature of certiorari quashing adjudication determinations are not required to pay
adjudicated amounts into court; see Denham Constructions Project Company 810 Pty Ltd v Smithies; Denham Constructions Project Company
810 Pty Ltd v Risgalla [2014] ACTSC 169. See also Surfabear P/L v GJ Drainage & Concrete Construction P/L [2009] QSC 308.
37 See Building and Construction Industry Security of Payment Act (2004) (Singapore) as amended in 2018, s.15(3)a and s.27(6). See also,
Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd [2018] 1 S.L.R. 317; S. Magintharan, "Recent development in construction
adjudication in Singapore" (2020) 36(3) Construction Law Journal 219–290.
38 See Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd [2009] VSC 156 at [47] and Brodyn v Davenport [2005] NSWCA 394 at [51]
(Hodgson JA)
39 See s.26 of Building and Construction Industry Security of Payment Act (2004).
40 Prior to the 2018 amendments to the Singaporean Act, the Act only allowed respondents to access the legislative review mechanism.
41 In Singapore, the parties are not allowed to mutually agree on the identity of the original adjudicator. See Building and Construction Industry
Security of Payment Act 2004 s.13(3).
42 The Murray model does not provide respondents the right to access the review on jurisdictional grounds. It is only provided to claimants in
case the adjudicator rejects the adjudication application. See recommendation 43 of the Murray report.
43 Recently, the court of appeal in Singapore included jurisdictional challenges in the scope of the review. See the recent decision by the Court of
Appeal in Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd [2018] SGCA 4 on 22.
44 The Bill only provides claimants the right to access the review mechanism if the adjudicator decides no payment is payable. However, the Bill
is silent about the right of respondents to access the review on jurisdictional grounds.
45 Building and Construction Industry Security of Payment Act (2004), s15(3); Audi Construction Pte Ltd v Kian Hiap Construction Pte Ltd
[2018] 1 SLR 317 and Far East Square Pte Ltd v Yau Lee Construction (Singapore) Pte Ltd [2019] SGCA 36.
46 In Singapore, there is only one authorised nominating body operating in the country.
47 See exhaustion of alternative remedies doctrine, fn.23 above.
