The validity of adjudicators' determinations containing errors of law: The NSW judicial approach

The Building and Construction Industry Security of Payment Act 1999 came into force in New South Wales (NSW) on 26 March 2000. However, the Act failed to have a significant impact on dispute resolution in the NSW construction industry until four years later. One of the reasons for the slow uptake of adjudication by the industry was the initial stance adopted by the NSW Supreme Court in allowing adjudicators' determinations to be quashed for containing errors of law on the face of the record. In taking this initial position, the NSW Supreme Court viewed the role of an adjudicator as similar to that of an expert by whose determination the parties had agreed to be bound. By allowing adjudicators' determinations to be overturned, the Supreme Court did not give statutory adjudication the support it needed in order to generate certainty within the NSW construction industry that an adjudicator’s determination could be rapidly enforced. Conversely, in the UK, the English courts swiftly showed their support toward statutory adjudication after the enactment of The Housing Grants, Construction and Regeneration Act in 1996 by upholding adjudicators' determinations even though they contained errors of law. The English Court of Appeal also likened to role of an adjudicator to that of an expert. Eventually, in 2004, the NSW Court of Appeal gave statutory adjudication the support it needed in the case of Brodyn Pty Limited T/as Time Cost and Quality v Davenport & Anor . This paper will consider the development of the NSW courts' view towards jurisdictional error of an adjudicator, and by comparison with key English authorities on the matter, seek to establish whether the analogy of adjudicator as expert is valid and appropriate in NSW.