The document summarizes proposed changes to simplify and expedite the process of enforcing adjudication determinations in Western Australia. Currently, parties must seek leave from the relevant court to enforce a determination, which can cause delays. The proposed Construction Contracts Amendment Bill would remove this requirement, allowing parties to simply file and serve a certified copy of the determination and affidavit stating the outstanding amount. This is intended to make the enforcement regime more efficient while still allowing judicial review. The changes are expected to be introduced in late 2016 and early 2017.

1. Enforcing Adjudication Determinations
Stephen McComish
Partner, Jones Day October 2016

2. Media statement on 22/09/16
• Hon Sean L’Estrange: Minster for Mines and Petroleum;
Finance; Small Business
• Hon Michael Mischin: Attorney General; Minister for Commerce
“providing a faster and more efficient means for a party
to enforce an adjudication determination through the
courts”

3. Introduction and agenda
• Enforcement: Adjudicator purports to determine an application
under s. 31(2)(b). How does the applicant get it enforced?
• Today’s agenda:
 Why and when do you need to enforce?
 How do you currently enforce?
 The new regime: The Construction Contracts
Amendment Bill 2016 (WA).

4. PART 1:
ENFORCING ADJUDICATION
DETERMINATIONS

5. Effect of determinations (division 4)
• Effective despite other proceedings. (s. 38)
• Unless determination provides otherwise, interest at prescribed
rate under Civil Judgments Enforcement Act 2004 is payable on
any unpaid portion of the determination after date stated by
adjudicator until full compliance or a judgment entered by the
court. (s. 39)
• Payments on account. (s. 40)
• Determinations are final, but can correct accidental slips or
omissions, a material arithmetic error or material mistake in
description of any person, thing or matter. (s41)
• Non payment of a determined amount also gives rise to a
contractor’s suspension rights (see s. 42 of the CCA).

6. Why do you need to do anything else?
• Respondent does not comply:
 Considers application should have been dismissed
 Cannot comply (eg, does not have the money)
 Recalcitrant
• A determination alone does not force a party to comply.

7. How do you enforce?
• Section 43(1) of the CCA states that:
a determination may, with the leave of a court of competent jurisdiction,
be enforced in the same manner as a judgment or order of the court to
the same effect, and if such leave is given, judgment may be entered in the
terms of the determination.
• Step 1: Have the determination certified by the Building Commissioner. This is a
straightforward process which involves sending the determination to the Building
Commission.
• Step 2: Identify the ‘court of competent jurisdiction’. This will depend on the value of
the determined amount.
 $75,000 or less – Magistrates Court of Western Australia
 $75,001 to $750,000 – District Court of Western Australia
 $750,001 and over – Supreme Court of Western Australia

8. Mechanics of enforcement
The documents to be filed in enforcement proceedings will differ slightly
depending on the court. However, it will usually require two documents:
1. An originating motion – filed and served
• Commences the court proceedings;
• Notifies the other party of the application;
• Describes the application for leave to enforce and states the
amount to be enforced (including interest).
2. An affidavit – sworn by a representative of the applicant:
• Attaches the certified determination; and
• States the extent of the determined amount that remains
outstanding.

9. What next?
• The respondent will (or should) enter an appearance.
• The Court considers the application and (unless there are reasons
not to) will grant leave to enforce the adjudication determination.
• The determination is then entered as a judgment and can be
treated in the same way as a judgment of the court.
• This grants access to the mechanisms in the Civil Judgments
Enforcement Act to obtain payment including (if necessary) a
means inquiry, the seizure and sale of assets, and contempt of
court.

10. Judicial review and resisting enforcement
There are limited circumstances where leave will be refused:
1. The determination sum has been paid.
2. The determination is invalid or was made without jurisdiction.
For example, there must be a construction contract and a payment
dispute before an adjudicator can make a determination. A
determination made without these ‘jurisdictional facts’ may be set
aside.
3. A party’s insolvency (along with a significant offsetting claim by the
resisting party) has also been sufficient to resist enforcement.
4. An adjudicator’s decision was so unreasonable that no reasonable
adjudicator could have arrived at it.
However, an adjudicator can make mistakes. An incorrect
decision will not necessarily invalidate a determination.

11. PART 2:
CHANGES TO THE ENFORCEMENT
REGIME

12. Review of the CCA
Both the Evans Report and the Amendment Bill
addressed key issues regarding the enforcement of
adjudication determinations.

13. The Evans Report: Enforcement
• Enforcement was not a major issue, only seven responses raised concerns
regarding the enforcement process.
• However, there were concerns of a perception that disgruntled parties were
using the enforcement regime to delay the payment process.
• There were also concerns of a lack of awareness in the State’s lower courts
regarding the enforcement process. One responder gave an example of a
four month delay in enforcing a determination in the Magistrates Court.
Recommendation:
Consideration should be given to the introduction of
complementary regulations of the Courts, or a statutory
amendment to s. 46 to allow speedy registration of adjudication
determinations as a court order.

14. Construction Contracts Amendment Bill
• Against the upshot of recent media scrutiny regarding the management of
publically funded projects, the State Government recently released its
response to the Evans Report.
• The Government’s response has been quickly followed by draft
amendments to the CCA in the form of the CC Amendment Bill.
• Amongst a raft of other changes, the CCA Amendment Bill foreshadows
changes to the enforcement of adjudication determinations.
• The State Government appears to be acting on the complaints that the
enforcement process was too complicated and time consuming.
• The proposed changes in the CC Amendment Bill are not dramatic,
but they do touch on a number of issues, including the timing of
adjudication applications and the enforcement of determinations.

16. New enforcement process
• The proposed amendments to s. 43 removes the requirement for a
successful party to seek leave from the relevant court to enforce a
determination.
• A successful party will be required to simply file and serve:
• A certified copy of the determination (as before); and
• An affidavit stating the amount that remains outstanding.
• This amendment was designed to copy the process of registering an
order of the Building Commissioner with the courts pursuant to section 50
of the Building Services (Complaint Resolution and Administration) Act
2011 (WA).

17. Amendments to s. 43
• The proposed amendments to s. 43 are designed to
simplify and expedite the process of enforcing
determinations.
• These amendments will not remove the right for a
party to seek judicial review. This is a constitutionally
protected right.

18. Conclusion
• New enforcement regime will be more efficient.
• BUT applications for a stay and judicial review will still result in
delay (perhaps not as much).
• Timing?
 Introduced, First and Second reading in legislative
Assembly on 22/09/16
 Commencement:
Section 1 & 2 – Royal Assent
The rest other than 7 & 20, 15/12/16
Section 7 & 20, 3/04/17)?

19. QUESTIONS?