REUTERS | Daniel Munoz

Be careful what you write, it may not remain confidential

Many years ago I wrote a blog on how an adjudicator should avoid using idiosyncratic language in their decision. I had in mind a particular judgment (Vision Homes Ltd v Lancsville Construction Ltd), where one party was arguing the decision was void and of no effect because it was vague and ambiguous. It was the judge (Christopher Clarke J) who described the adjudicator’s language as “idiosyncratic”, but also said that it would not have prevented him from upholding the adjudicator’s decision, but for a technical issue to do with his appointment (he was incorrectly appointed and lacked jurisdiction in any event). The adjudicator’s choice of language was also before the TCC later that year, this time in ROK Building Ltd v Celtic Composting Systems Ltd. There the issue centred on whether the adjudicator had directed a payment or simply declared one was due.

However, after that, I don’t recall the matter really troubling the courts. Fast forward 12 years, and once again an adjudicator’s decision-writing is in the spotlight. When you see what follows, you’ll see why I could not resist blogging about it. After all, how often do you see references to baseball, Squiddly Diddly and SpongeBob Square Pants in the same decision? I’m pretty sure I have never referred to any of those in one of my decisions!

We are heading down under to the Supreme Court of the Australian Capital Territory (ACT) and I must thank Julian Bailey for the heads up on this one 😉

Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd

This looks to me like a fairly typical payment dispute, albeit that the parties are relying on the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (SOP Act). The dispute has led to at least two adjudications and at least two reported judgments, one from July 2021 and one from November 2021.

Now, I’m not familiar with the SOP Act, so I’m not going to dwell on that. Nor am I familiar with the procedural rules of the Supreme Court of the ACT, so I’m going to neatly side step those too. What I do know about is writing decisions, and so I’m focusing on that and some of the passages in the adjudicator’s decisions that the judge refers to. It’s fair to say this may be a master class in language best avoided in an adjudicator’s decision.

Let us start with the adjudicator’s January 2021 decision.

The judge noted that the “parties manifestly failed to provide the adjudicator with proper assistance”, which meant “the adjudicator’s task was more difficult than it might otherwise have been”. I know how that feels!

However, it didn’t stop the judge describing the adjudicator’s decision as:

“… long. It is unnecessarily so. It covers 49 pages and 201 paragraphs. It has a somewhat argumentative tone. The reasons are prolix, and the structure and content are not always easy to understand. They include apparently unnecessary asides, unnecessarily lengthy commentary on the operation of the SOP Act and commentary on the position taken by the plaintiff.”

He referred to the idiosyncratic nature of the reasons. For example:

“The respondent’s position in the response is quite unique and, after giving all of the respondent’s material a hard-look review, it appears the respondent sees the statutory regime more like a game of American baseball in that the respondent defends the three infield bases (first, second, and third) with alternative defence scenarios.

…The respondent covers first base with the assertion of a strong first baseman who is right-handed and wears a glove on the left hand. The respondent then states that the claimant did not provide evidence of a profit share arrangement for the water project. The respondent covers second base with the assertion of a strong second baseman who is ambidextrous and can wear a glove on either hand with equal ease. Therefore, both sides of second base are adequately covered.”

We then come to the bit that really made me smile:

“However, if Squiddly Diddly, (the famous anthropomorphic animated octopus created by Hanna Barbera in October 1965 but retired after a short stint in October 1966) were still playing baseball, I am certain that the respondent would have drafted this multi-armed player on the team because it would give the respondent more of a chance to catch the ball in the middle area of the infield simply because the respondent now has more arms on the field to catch the ball. The only other available player would be Squidward Tentacles, the neighbour and friend of SpongeBob Square Pants in the Nickelodeon animated television series SpongeBob SquarePants. Like Squiddly Diddly, Squidward is an anthropomorphic octopus. However, unlike Squiddly Diddly, Squidward, when playing baseball, is mediocre at best and always becomes injured. The second baseman is the position between second base and first base. The second baseman often possesses quick hands and feet. This position requires the ability to get rid of the ball quickly and must show strong pivoting ability to capture the “double play” when such a situation occurs. In this regard agility and quickness are necessary because the respondent does not have the shortstop position covered (position between second base and third base). Agility and pivoting ability are the critical considerations for the middle ground or second base position. The respondent then states further that the claimant did not provide evidence of any agreement to be paid at all for work on the water project. The respondent covers third base with the assertion of a strong third baseman who is left-handed and wears a glove on the right hand.”

The adjudicator’s second decision was also “prolix and the structure of the reasoning is not straightforward”. It doesn’t seem to contain quite so many odd references and analogies, although we do get the adjudicator describing the respondent’s approach to evidence as:

“Jumping like a grasshopper from one statement to the next without building an evidentiary foundation that permits an independent assessment of the suggestion being made is problematic for the respondent. This conduct raises the concern of whether information has been intentionally concealed and brings into focus the question of whether the evidence omitted did not exist at all or that the evidence would have been unfavourable to that party.”

That seems quite tame compared to the first decision. In fact, it probably wouldn’t raise an eyebrow on its own at all.

My takeaways from this

I think the judgments speak for themselves and I’ll leave you with links to some wise words from Jonathan, who wrote a mini series of posts about decision writing a few years ago:

“… it is clear from the above guidelines that the adjudicator must give a great deal of thought to properly formulating his issues.”

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