The ABN in the Appointor’s Contact Details

Construction Contracts Act 2004 (WA) 31(2) An appointed adjudicator must, within the prescribed time or any extension of it made under section 32(3)(a) — (a) dismiss the application without making a determination of its merits if — (i) the contract concerned is not a construction contract; (ii) the application has not been prepared and served in accordance with section 26; (iii) an arbitrator or other person or a court or other body dealing with a matter arising under a construction contract makes an order, judgment or other finding about the dispute that is the subject of the application; or (iv) satisfied that it is not possible to fairly make a determination because of the complexity of the matter or the prescribed time or any extension of it is not sufficient for any other reason;

Construction Contracts Act 2004 (WA) 26(2) The application — (a) must be prepared in accordance with, and contain the information prescribed by, the regulations;

Construction Contracts Regulations 2004 5. Prescribed information in application for adjudication For the purposes of section 26(2)(a) of the Act, an application to have a payment dispute adjudicated must, in addition to the other information required by section 26(2) of the Act, contain — (a) the name of the appointed adjudicator or prescribed appointor and the adjudicator’s or appointor’s contact details; (b) the applicant’s name and contact details; and (c) the respondent’s name and contact details.

Construction Contracts Regulations 2004 4. Giving a person’s contact details If a person is required by these regulations to give the contact details of a person, the person required to give the details must give the address, telephone and facsimile numbers and ABN of the person or the person’s business (or ACN of the person if there is no ABN) to the extent to which the person required to give the details knows those details.

Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 115 That matter directs attention, then, to what constitutes the lawful exercise of the power to dismiss under s 31(2)(a). The language of s31(2)(a) is mandatory; the appointed adjudicator 'must' dismiss if one or more of the criteria in subpars (i) - (iv) are satisfied. Section 31(2)(a) does not involve the exercise of a statutory discretion. In my view, the matters in subpars (i) - (iv) of s 31(2)(a) are 'jurisdictional facts' which condition the lawful exercise of the function committed to an appointed adjudicator under s 31(2)(a)...– Murphy JA

Match Projects Pty Ltd and Arccon (WA) Pty Ltd (no 2) [2009] WASAT 134 69 .... when an adjudication application is made, the adjudicator will have to make a decision, based on the materials provided, as to whether or not there has been a compliance with s 26. If it is manifest from the applicant's documentation that there has been non-compliance, the adjudicator will be bound to dismiss, but otherwise, that decision will have to be made based on all of the information provided by the parties. Thus, for example, if the respondent provides documentation which shows that the names and addresses of the respondents were known by the applicant but were not included in the application, the adjudicator would be required to dismiss the application without consideration of its merits.

WQube Port of Dampier V Philip Loots of Kahlia Nominees Ltd [2014] WASC 331 – Chaney J 99 .... Section 31(2)(a)(ii) requires consideration of whether the application has been 'prepared ... in accordance with s 26'. Section 26(2) identifies various features of an application which 'must' be included in the application. In order for an application to be prepared in accordance with s 26, the requirements of that section need to be met. I do not consider that an application could be said to have been prepared in accordance with s 26, if, for example, it did not set out the details of, or have attached to it, the matters referred to in s26(2)(b)(i) and (ii) or the information described in s 26(2)(c). Similarly, the application would not accord with the requirements of s 26 if it did not contain the information prescribed by the regulations. It is only if all of that information is included that the application has been prepared in accordance with s 26.

WQube Port of Dampier V Philip Loots of Kahlia Nominees Ltd [2014] WASC 331 – Chaney J 100 That conclusion does not, of course, detract from my earlier conclusion that the contact details required to be contained within the application are only those which the person required to give the details knows. Nor does it mean that the adjudicator is required to go behind what is apparent on the face of the application. If a detail such as an ABN or ACN, or some other contact detail, is not shown on the application, it is open to an adjudicator to infer that that detail is not known to the applicant. That is especially so if compliance with s 26 is not in issue. The fact that inclusion of all of the contact details is not, because of the words 'to the extent to which the person ... knows those details', an absolute requirement, shows that the legislature did not intend that the adjudication process required that all details be included in the application in all cases. It would be contrary to the object of the CC Act to provide a quick informal adjudication, on an interim basis, of payment disputes, to construe s 31(2) as requiring an adjudicator to embark upon an enquiry as to an applicant's state of knowledge in relation to a matter that has no bearing on either the process of adjudication or its merits.

Marine & Civil Pty Ltd and WQube Port of Dampier Pty Ltd [2014] WASAT 167 The question then arises as to whether the inclusion of a detail in correspondence received by a corporate entity is sufficient to ascribe to the entity knowledge of the detail. In Loots at [90], Chaney J indicated a required standard of whether or not the detail was known to those directly involved in the adjudication applications under consideration. 76 ..it is ...fallacious to argue that receipt of a letter containing a contact detail will never fix the recipient with actual knowledge.

Marine & Civil Pty Ltd and WQube Port of Dampier Pty Ltd [2014] WASAT 167 77 Marine itself informed IAMA by letter of the other three matters, thereby conveying knowledge of the author of the letter of the other matters. Mr Morrow gave Marine the opportunity to rebut the inference that those with the carriage of the Adjudication Application knew IAMA's ABN. Rather than explaining why those persons did not know, Marine merely incanted that the company 'did not know' and referred to the result of a search of IAMA's website. Dampier, for its part, relied upon the references to the ABN in correspondence from IAMA regarding the three other adjudication applications on the same project. 78 In my view, in light of the responses received by him, Mr Morrow correctly concluded that Marine did 'know' the contact detail omitted from the Adjudication Application for the relevant purpose.

Consent for the adjudicator to adjudicate multiple applications simultaneously

SITUATION The applicant made 12 payment claims in the one application. The respondent did not give consent to simultaneous adjudication

RESPONDENT’S CONTENTIONS Applicant chose to make application without first asking respondent whether it would consent to multiple applications. Applicant has no power under the Act to withdraw all or part of the application. Adjudicator has no power under the Act to adjudicate part only of the adjudication.

Contention 1 – No Consent S32(3)(b) of the Act states; An appointed adjudicator may ... with the consent of the parties, adjudicate simultaneously 2 or more payment disputes between the parties;

No Consent Corollary is that without consent adjudicator cannot adjudicate 2 or more simultaneous disputes But.... Can consider one dispute

Contention 2 – Application Cannot Be Withdrawn No ability under WA Act to withdraw all or part of the application

Withdrawal of Application No ability to do so in WA Ability in NT equivalent Act under s28A No ability to resubmit Gwelo Developments Pty Ltd v Brierty Limited [2014] NTSC 44 appealed in Brierty Limited v Gwelo Developments Pty Ltd [NTCA] 7.

Contention 3 - Application is Entire The adjudicator does not have jurisdiction to determine only one of the disputes because the adjudicator has no power under the Act to adjudicate part only of the adjudication application. The “application” is entire and it must be entirely dismissed or determined.

ONE PAYMENT CLAIM – SEVERAL PAYMENT DISPUTES Common practice that, where two or more disputes arise from a single payment claim in a single adjudication, the adjudicator may determine one dispute on its merits and yet dismiss another. The purpose of the Act is to provide a determination of what, if any, payment should be made and that purpose would not be possible if the application could not be split into its component disputes.

SOLUTION Adjudicate one dispute only under s32(3)(b) Allow time to elapse on other disputes under s31(3) Inform respondent of right to reapply under s37(2)