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Examining the approaches to diminish judicial intervention in statutory adjudication in Australia
conference contribution
posted on 2016-01-01, 00:00 authored by Samer Skaik, J Coggins, Anthony MillsAnthony MillsIn Australia, statutory construction adjudication is a fast payment dispute resolution process designed to keep the cash flowing down the hierarchical contractual chain in construction projects. Its rapid, highly regulatory and temporarily binding nature have led to it being often described as a ‘quick and dirty’ process that delivers ‘rough and ready’ justice. Adjudicators often have to grapple with complex legal issues related to jurisdictional facts and interpretation of contract provisions, though the majority of them are not legally trained. This has often led to a poor quality of adjudication outcome for large and complex payment claims which has, in turn, led to a mounting dissatisfaction due to the many judicial challenges to adjudicators’ determinations seen in recent years. The evolving tension between the object of the security of payment legislation and excessive involvement of the courts has often been the subject of comment by the judiciary. This paper aims to examine the legislative and judicial approaches to support the object of the security of payment legislation to ease cash flow. The paper adopts a desktop study approach whereby evidence is gathered from three primary sources – judicial decisions, academic publications and governmental reports. The paper concludes that there is a need to adopt other measures which can provide more convenient relief to aggrieved parties to an adjudication process, such that the adjudication process is kept away from the courts as far as is possible. Specifically, it is proposed that a well-designed expanded legislative review scheme of allegedly flawed adjudication, based on that provided in the Western Australian legislation, might stand as a promising remedy to eliminate the evolving tension.
History
Event
Australasian Universities Building Education Association. Annual Conference (40th : 2016 : Cairns, Queensland)Pagination
660 - 670Publisher
Central Queensland UniversityLocation
Cairns, QueenslandPlace of publication
Rockhampton, Qld.Start date
2016-07-06End date
2016-07-08ISBN-13
9781921047138Language
engPublication classification
E Conference publication; E1 Full written paper - refereedCopyright notice
2016, The AuthorsEditor/Contributor(s)
N SinghaputtangkulTitle of proceedings
AUBEA 2016 : Proceedings of the 40th Australasian Universities Building Education Association Annual ConferenceUsage metrics
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