From time to time a party may consider an adjudicator has breached our adjudicator code of ethics and wish to complain to Adjudicate Today. A complaint must be in writing, allege a breach of the code of ethics and not seek to raise issues of law or jurisdiction or to re-agitate issues which were the subject of the adjudication.
Complaints must be in writing and contain full particulars of the allegations together with any supporting documentation. A copy of the complaint will be made available to the other party to the adjudication so their views may be provided. If the complaint is one that Adjudicate Today has power to consider, then it will be referred to the Adjudication Competency Assessment Panel. This panel consists of at least two adjudicators, including a chief adjudicator. Each member of the panel considers the complaint independently and prepares a written report on the papers. These reports are referred to the adjudicator for any submission they choose to make. The reports, the original complaint and any response from the adjudicator are provided to the Adjudicate Today Board which will respond in writing to the complainant. If appropriate, the government regulator for the applicable State will be informed of the complaint and the outcome.
This process is time intense and exhaustive. It generally completes within six (6) weeks of receipt of the original written complaint.
Sometimes parties seek to use the complaints procedure in the belief that the adjudicator may revise a determination as a consequence. There is no power in the Act for this to occur.
Adjudication is a statutory process under which only a court can review an adjudication determination and decide whether the adjudicator had jurisdiction and fulfilled the requirements of the Act. Like the decision of a judge, magistrate or member of a tribunal, an adjudicator’s determination can only be changed as a result of further proceedings between the parties in the Supreme Court or other applicable court or tribunal. As a consequence, Adjudicate Today has no power to entertain a complaint that:
as these are matters for a court to determine.
If a complaint is one that, in law, Adjudicate Today cannot entertain, the complainant can, nevertheless, raise it with the other party. It is possible that the parties can agree between themselves and avoid going to court. Examples include complaints that the payment claim, the payment schedule, the adjudication application or the adjudication response was out of time or otherwise invalid. Before proceeding to adjudicate a payment claim, an adjudicator must satisfy himself or herself that he or she has jurisdiction. However strongly contested arguments over jurisdiction may need to be determined by a court where where parties give evidence on oath and can be cross examined. An adjudicator cannot take evidence on oath or cross examine a party.
Whether an adjudicator took into account something that he or she should not have taken into account or failed to take into account something that he or she should have taken into account is a matter to be decided by the Court on an examination of the adjudicator’s reasons stated in the determination. The Court cannot ask the adjudicator what he or she took into account. Nor can Adjudicate Today. An adjudicator cannot review and revise or expand upon his or her determination. While an adjudicator has a limited power to correct a typographical error or the like, they have no power to change a determination or reasons.
Consequently, the scope which Adjudicate Today has for entertaining complaints is limited. Adjudicators perform an independent statutory role, they are not employed by Adjudicate Today.
When, as a matter of law, Adjudicate Today can do nothing in respect of a complaint about a particular adjudication determination, the complainant will be informed in writing. Nevertheless, the Board is constantly monitoring the performance of adjudicators and may form its own view as to the competence of the adjudicator and may require the adjudicator to undergo further training or may remove the adjudicator from Adjudicate Today's panel.
Complaint about Adjudicate Today and/or its employed staff
Step 1 The complaint handler will make initial contact with the complainant within 2 working days.
Step 2 The complaint handler will conduct an initial assessment which will involve discussing with the complainant the concerns and the desired outcome. The complaint handler will listen to the complainant and, if it is appropriate, resolve the matter at this initial point of contact.
Step 3 If appropriate, the complaint handler may facilitate the complainant to discuss the issues with the staff member directly if this has not already been tried. This meeting may be facilitated by the complaint handler to ensure both parties communicate openly in a problem solving environment.
If steps 2 and 3 are unsuccessful, the following process will be undertaken.
Step 4 In the case of a verbal complaint being made, the complainant will be asked to put the complaint in writing.
Step 5 The complaint handler will conduct an initial assessment which will involve:
a. discussion with the staff member, informing him/her of the complaint and listening to the response;
b. assessment of the willingness of all parties to cooperate with the complaint handling process;
c. assessment of the nature of the complaint; and
d. selection of a dispute resolution process to suit the circumstances.
Step 6 Following the initial assessment, the complaint handler will provide information to the complainant about the process to be adopted, within seven (7) days after initial contact, if practical. The complaint handler will inform the complainant of the expected time frame of the complaint handling process and will keep them informed of any changes to the expected time frame.
Step 7 A dispute resolution process may include:
a. discussion between the complainant and senior management of Adjudicate Today;
b. negotiation between the parties;
c. if the complaint cannot be resolved through any of the above methods, an investigation of the complaint by an independent industry person may be appropriate. Any investigation will result in a recommendation.
Step 8 Subsequent to the conclusion of the dispute resolution process feedback will be given to the complainant about the outcome of the process and, if appropriate, the government regulator for the applicable State will be informed of the complaint and the outcome