In Probuild, the High Court, in dismissing the appeal, held that while the Supreme Court of New South Wales may grant relief for jurisdictional error by an adjudicator appointed under the Building and Construction Industry Security of Payment Act 1999 (NSW) (NSW Act), the NSW Act ousts the Supreme Court's jurisdiction to quash an adjudicator's determination for error of law on the face of the record, unless the error is a jurisdictional error.
In Maxcon, the High Court, in dismissing the appeal, held for the reasons expressed in Probuild that the Building and Construction Industry Security of Payment Act 2009 (SA) ousts the jurisdiction of the Supreme Court of South Australia to quash an adjudicator's determination for error of law on the face of the record that is not a jurisdictional error.
The Probuild and Maxcon decisions are consistent with the purpose of the ‘East Coast’ security of payment legislation in Australia, being to ensure that any person who undertakes to carry out construction work under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work. The legislation is designed to allocate financial risk away from the contractor using an interim dispute resolution procedure, rather than conclusively determine the parties’ rights under a construction contract.
The Probuild and Maxcon decisions cement the previous appellate-level findings that judicial review of security of payment determinations is limited to circumstances of jurisdictional error in New South Wales and South Australia. The position is likely to be the same in Queensland and Tasmania, on the basis that there is no material difference between the supervisory jurisdiction of the Supreme Courts and the security of payment legislation in those jurisdictions.
In Victoria, however, it is arguable that judicial review of an adjudicator's determination for non-jurisdictional error of law on the face of the record is still available due to the operation of section 85(5) of the Constitution Act 1975 (Vic), which is not replicated in New South Wales or South Australia.1 It remains to be seen whether the Probuild and Maxcon decisions will be distinguished in further proceedings originating in Victoria.