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Australian security of payment legislation: Impact of inconsistent case law

conference contribution
posted on 10.05.2018, 00:00 by Samer SkaikSamer Skaik, J Coggins, A Mills
In Australia, a supreme court has a supervisory role over the statutory adjudication process that has been established within the security of payment legislation. In this role, the courts have quashed many adjudication determinations on the grounds of jurisdictional error in recent years. This is a problem as the courts’ involvement in statutory adjudication is contrary to the object of the legislation. When reviewing adjudication determinations, the courts have adopted different approaches with respect to determining the role of adjudicators and the essential jurisdictional facts that must exist in order for an adjudicator to have jurisdiction to hear a referred disputed matter. This diversification of judicial interpretation with respect to jurisdictional error is confusing, not only to construction professionals, but also to many lawyers. Via a desktop study – where the evidence is mainly garnered from case law, governmental reports and commentaries – this paper reviews the legal complexities involved in diagnosing jurisdictional errors. In doing so, the paper aims to answer the question as to why the adjudication process has become bogged down in the quagmire of judicial review. The paper concludes that the evolving inconsistency of case law in relation to statutory adjudication is a crucial factor contributing to the erosion of the object of the security of payment legislation in Australia. Moving forward, the paper argues that establishing a legislative review mechanism of jurisdictional challenges may be sufficient to address this problem.

History

Editor

Singhaputtangkul N

Parent Title

AUBEA 2016: Proceedings of the 40th Australasian Universities Building Education Association

Start Page

671

End Page

681

Number of Pages

11

Start Date

06/07/2016

Finish Date

08/07/2016

ISBN-13

9781921047138

Location

Cairns, Queensland

Publisher

Central Queensland University

Place of Publication

Rockhampton, Queensland

Additional Rights

Copyright is retained by the authors. All Rights Reserved.

Peer Reviewed

Yes

Open Access

Yes

External Author Affiliations

Deakin University, University of South Australia

Era Eligible

Yes

Name of Conference

Australasian Universities Building Education Association (AUBEA)