The validity of adjudicators' determinations containing errors of law: a comparison of the judicial approach in England and New South Wales

Abstract

Purpose – The purpose of this paper is to analyse the development of English Law and the Law in New South Wales, Australia in statutory adjudication concerning judicial review of adjudicators’ errors in law. Design/methodology/approach – This paper adopts a black-letter law approach focussing on recent decisions and their effect on statutory adjudication. Findings – Following the commencement of statutory adjudication in the UK, the English courts swiftly supported the new “pay now, argue later”, rapid form of dispute resolution by holding adjudication to be a private dispute resolution process akin to expert valuation. As such, the English courts have consistently held that adjudicators operate within their jurisdiction even though they may err on points of law, as long as such errors were committed in the course of attempting to answer a question they were contractually authorised to consider. The courts’ position in New South Wales (NSW), however, has differed considerably. In NSW, the first Australian State to introduce statutory adjudication, the courts’ position with respect to errors of law on the face of the record made by an adjudicator, who had jurisdiction to enter on the inquiry, in the course of making their determination has been somewhat tortuous. Contrary to the initial position following commencement of statutory adjudication, the paper concludes that it may now be more difficult to enforce an adjudicator’s determination which contains an error of law in England than in NSW. Originality/value – This paper compares the development of adjudication law in England with that of one state in Australia. The different directions that the law has taken in these jurisdictions will be of interest to academic and practitioners not only in England and Australia but to other jurisdictions where statutory adjudication has been introduced or where legislation is being considered. To the authors knowledge no previous study of this kind has been carried out previously.