Jacques V Ensign Contractors Ltd
JACQUES V ENSIGN CONTRACTORS LTD
Technology and Construction Court
22 December 2009
Akenhead J stated that an adjudicator was not in breach of the rules of natural justice if the decision did not address each and every aspect of the evidence adduced by the parties. An adjudicator had to consider defences properly put forward by a defending party in adjudication. However, it was within an adjudicator's jurisdiction to decide what evidence was admissible and helpful and unhelpful in the determination of the dispute or disputes referred to that adjudicator. If the adjudicator decided (within jurisdiction) that certain evidence was inadmissible, that would rarely (if ever) amount to a breach of the rules of natural justice because the position was analogous to a court case in which the court decided that certain evidence was either inadmissible or of such little weight and value that it could effectively be ignored and in such circumstances it would be difficult to mount a challenge to such a decision on fairness grounds. Even if the adjudicator's decision (within jurisdiction) to disregard evidence as inadmissible or of little or no weight was wrong in fact or in law, that decision was not in consequence impugnable as a breach of the rules of natural justice. It was necessary in most and possibly all "natural justice" cases to distinguish between a failure by an adjudicator in the decision to consider and address a substantive (factual or legal) defence and an actual or apparent failure or omission to address all aspects of the evidence which went to support that defence. It was necessary to bear in mind that adjudication usually involved the exchange of evidence and argument over a short period of time and the production of a decision within a short time span thereafter. It was usually simply not practicable for every aspect of the evidence to be meticulously considered, weighed up and rejected or accepted in whole or in part. Primarily the adjudicator needed to address the substantive issues, whether factual or legal but did not need (as a matter of fairness) to address each and every aspect of the evidence. It was open to the court to infer that the adjudicator had not considered or addressed the defences properly put forward by a defending party from what was put before the adjudicator and said or not said in the adjudicator's decision.