National trends in adjudication: Are earlier determinations binding?

Security of payment legislation in Australia enables rapid adjudication to facilitate cash flow in the construction industry.

However, when similar or overlapping claims arise in successive adjudications, a key issue emerges: is a later adjudicator bound by an earlier decision?

Introduction

The issue has significant implications for both claimants and respondents involved in complex, multi-stage projects where claims may be submitted progressively.

The answer lies in two areas:

1. Common law principles of preclusion – res judicata, issue estoppel and Anshun estoppel; and
2. Statutory estoppel – provisions such as section 38(6) of the Building and Construction Industry (Security of Payment) Act 2021 (WA) (WA SoPA) and its analogue provisions in other jurisdictions.

Common law preclusion

At common law, doctrines such as issue estoppel and Anshun estoppel operate to prevent parties from relitigating issues or claims that have already been determined.  The overriding goal of these doctrines is to ensure the finality of litigious proceedings.

1. Issue estoppel generally prevents issues of fact or law which have been decided in earlier proceedings from being re-opened.
2. Anshun estoppel prevents a party from asserting a claim that the party could have brought in earlier proceedings if it was unreasonable for that party to not bring that claim in the earlier proceedings.

Clearly these doctrines will have some relevance in the context of claims being reagitated in security of payment adjudications over the course of a project.

For some time, there was judicial support for these principles applying to adjudications.  The genesis of this support is the New South Wales Court of Appeal decision of Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 (Dualcorp), where a majority of the Court of Appeal accepted that issue estoppel could apply in the adjudication context.¹

That position was adopted in various first instance decisions across New South Wales, Victoria, Queensland, Tasmania and Western Australia, often in a diluted form.²

Relevantly, the majority’s decision in Dualcorp was adopted in the Supreme Court of Western Australia decision of Salini-Impregilo SPA v Francis [2020] WASC 72 (Salini), where Justice Archer after reviewing the various authorities on the issue, neatly concluded:

I do not consider that the differences between the two Acts means that Dualcorp is distinguishable. Nor am I satisfied it is ‘plainly wrong’. Therefore, I conclude that adjudication estoppel applies to the Western Australian Act. ³
(emphasis added)

That decision was made in respect of the Construction Contracts Act 2004 (WA), being the precursor legislation to the WA SoPA, however there is no reason in principle why the decision should not apply equally to the WA SoPA.

Currently, there is no appellate authority on this point in Western Australia.

Despite the decision in Salini and other Australian decision, in recent years, the trend of accepting and applying the majority’s decision in DuaIcorp has begun to shift.

In Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42, the Australian Capital Territory Court of Appeal rejected the applicability of issue estoppel to adjudications, finding it incompatible with the “interim” nature of an adjudicator’s determination.⁴  More recently, in Goyder Wind Farm 1 Pty Ltd v GE Renewable Energy Australia Pty Ltd & Ors [2025] SASCA 39 (Goyder), the South Australian Court of Appeal not only endorsed the Australian Capital Territory position but went further, holding that Anshun estoppel also does not apply to adjudications under security of payment legislation.

Together, these decisions form a growing line of appellate authority suggesting that estoppel principles generally do not apply to adjudication under security of payment legislation.

It remains to be seen whether courts in other jurisdictions, particularly New South Wales, Queensland and Western Australia, where Dualcorp has historically been influential, will follow this more recent approach.  In the meantime, a special leave application to the High Court in respect of Goyder has been made, which, if heard by the High Court, would certainly provide needed clarity.

That said, the doctrine of abuse of process remains available.  As noted in both Dualcorp and Goyder, a party that seeks to reagitate a previously determined issue in a new adjudication may still be barred from doing so where the conduct amounts to an abuse of process.  However, resorting to an abuse of process argument will invariably be less palatable for parties as only the courts, not adjudicators, have the express power to decide that a party’s conduct amounts to an abuse of process.  Meaning that if it is necessary for a party to advance this argument, the proceedings must ultimately be brought before the court.

Statutory estoppel

In the absence of common law estoppel doctrines, the focus shifts to the legislation itself.  Many security of payment regimes across Australia contain provisions which arguably operate as a ‘statutory estoppel’.

Section 38(6) of the SoPA is one such example.  It provides that:

…in calculating the value of construction work or related goods and services, a determination must give them the same value as that previously determined under this Division, unless the claimant or respondent satisfies the adjudicator that the value has changed since the previous determination. 
(emphasis added)

Similar provisions exist in other jurisdictions.⁵  Each require adjudicators to adopt calculations of construction work made under prior adjudication determinations unless there is evidence of a material change in the value calculated.

These provisions are not expressly framed in the language of estoppel, but their effect is to limit a subsequent adjudicator’s ability to revalue work that has already been the subject of a prior determination.

However, what is less clear is how these provisions operate in relation to the question of liability.  There is authority to suggest the proposition that where an adjudicator assesses that an entitlement does not exist (for example, that a principal is not entitled to liquidated damages) and therefore determines that $0 or nil is payable, that determination by the adjudicator is not binding on a subsequent adjudicator as it is a determination as to entitlement only as opposed to a determination as to valuation.⁶  In the view of the authors, while that proposition may be correct as a matter of law, it does not accord with the apparent intent behind these provisions – to prevent repeated arguments over the same claims.  Legislative reform is clearly necessary to address this apparent inconsistency, particularly in absence of estoppel at common law applying.

Accordingly, while courts seem to have retreated from finding that estoppel at common law applies to adjudications, these statutory provisions serve an estoppel-like purpose. They can, and should, be understood as creating a form of statutory estoppel – binding future adjudicators to earlier determinations unless there is fresh evidence of change.  Such a conclusion is consistent with the purpose and functions of security and payment legislation, that is, the “pay now, argue later” policy.

Thank you to Mark Ringer, Solicitor, for his valuable research and assistance with this article.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes