In Western Australia, adjudications for payment disputes arising
under construction contracts are governed by the Construction
Contracts Act 2004 (WA) ("the Act").
If an application for adjudication under section 31(2)(a) of the
Act does not satisfy the requirements of the Act, the adjudicator
must dismiss it without making a determination on the merits but,
if none of the circumstances for dismissal apply, the adjudicator
must proceed to make a determination under section 31(2)(b).
Section 46 of the Act allows a person who is aggrieved by a
decision made under section 31(2)(a) to apply to the State
Administrative Tribunal ("the Tribunal") for a review of
In the recent decision ofPerrinepod Pty Ltd v Georgiou
Building Pty Ltd  WASCA 217, one of the questions that
the Court of Appeal had to determine was whether the Tribunal has
jurisdiction under section 46(1) of the Act to review a decision
not to dismiss an application under section 31(2)(a) of
Perrinepod Pty Ltd had applied for a review of a decision of an
adjudicator under the Act on the basis that the matter was too
complex under section 31(2)(a)(iv). The adjudicator declined
to dismiss the application and proceeded to make the determination
on the merits under section 31(2)(b). The Tribunal dismissed
the application for review, following its earlier decision in
Match Projects Pty Ltd and Arccon (WA) Pty Ltd 
WASAT 134 that the right of review was limited to a decision of an
adjudicator to dismiss an application without making a
determination on the merits. Perrinepod Pty Ltd appealed from the
decision of the Tribunal.
The Court of Appeal considered the inconsistent authorities of
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd
 WASC 19 and Match Projects Pty Ltd and Arccon (WA) Pty
Ltd  WASAT 134.
Beech J in O'Donnell Griffin stated that section
46(1) must be taken to exclude the availability of appeals to the
Supreme Court for errors concerning the existence of the
jurisdictional prerequisite facts in section 31(2)(a), and that the
questions in section 31(2)(a) are properly to be determined by the
adjudicator, and if necessary, on appeal to the Tribunal rather
than by applying for judicial review by the Supreme
However, the Tribunal in Match Projects considered that
Beech J's observations on the proper construction on section 46
and the availability of an appeal to the Supreme Court were not
binding, and that the only type of decision reviewable by the
Tribunal under section 46(1) is a decision to dismiss an
application for review under section 31(2)(a).
The Court concluded that the decision in Match Projects
was correct, in that a decision by an adjudicator notto dismiss an adjudication application (i.e. a decision to
hear and determine the matter) is not reviewable by the
However, the Court concluded that if the adjudicator had
proceeded "to determine an application under section 31(2)(b)
which ought to have been dismissed under section 31(2)(a), the
adjudicator would be acting unlawfully and without power", and
in such a circumstance, the Supreme Court would be available to
restrain or quash the determination.
Murphy JA stated that "a right of review to the Tribunal
where an application is dismissed is conducive to the statutory
purpose of 'keeping the money flowing'", but that
"no evident statutory purpose is served by expediting a review
of a 'decision' 'not to dismiss', with a view to
rendering inapplicable the adjudication process facilitated by the
In summary, the Court of Appeal decided that a party cannot
apply for Tribunal review of an adjudicator's decision to go
ahead and determine a matter, but can instead appeal to the Supreme
Court to quash the determination.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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