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Australian security of payment legislation: impact of inconsistent case law

Skaik, S., Coggins, J. and Mills, A. 2016, Australian security of payment legislation: impact of inconsistent case law, in AUBEA 2016: Proceedings of the 40th Australasian Universities Building Education Association Annual Conference, Central Queensland University, Rockhampton, Qld., pp. 671-681.

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Title Australian security of payment legislation: impact of inconsistent case law
Author(s) Skaik, S.ORCID iD for Skaik, S. orcid.org/0000-0003-1047-3058
Coggins, J.
Mills, A.ORCID iD for Mills, A. orcid.org/0000-0002-2223-1550
Conference name Australasian Universities Building Education Association. Annual Conference (40th : 2016 : Cairns, Queensland)
Conference location Cairns, Queensland
Conference dates 6-8 Jul. 2016
Title of proceedings AUBEA 2016: Proceedings of the 40th Australasian Universities Building Education Association Annual Conference
Editor(s) Singhaputtangkul, Natee
Publication date 2016
Start page 671
End page 681
Total pages 11
Publisher Central Queensland University
Place of publication Rockhampton, Qld.
Keyword(s) judicial review
jurisdictional error
review mechanism
statutory adjudication
security of payment
Summary 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.
ISBN 9781921047138
Language eng
Field of Research 120299 Building not elsewhere classified
180123 Litigation, Adjudication and Dispute Resolution
Socio Economic Objective 970112 Expanding Knowledge in Built Environment and Design
HERDC Research category E1 Full written paper - refereed
ERA Research output type E Conference publication
Copyright notice ©2016, The Authors
Free to Read? Yes
Persistent URL http://hdl.handle.net/10536/DRO/DU:30085252

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Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.