VIC: Adjudicator's Time for Determination
The adjudicator must determine an adjudication application as expeditiously as possible and within 10 business days:
- from the date on which the adjudicator accepts the adjudication application; or
- the date the Response would have been due; or
- if the Respondent has no right to serve an Adjudication Response, the date the Respondent received a copy of the Adjudication Application.
An adjudicator cannot make a determination earlier than the date of expiration of the period allowed for the respondent to submit an adjudication response.
An adjudicator may seek further submissions from a party. In this case strict deadlines will be set as a call for further submissions does not extend the statutory time requirements unless agreed by the claimant. The maximum period the claimant can agree to is 5 business days.
An adjudicator will also give the other party opportunity to comment on the submission. Sometimes a party may seek the opportunity to make a further submission. Approval is at the total discretion of the adjudicator. In such circumstances, adjudicators regularly make their consent conditional on on the claimant agreeing to extend time for the adjudication determination by 5 business days.
In unusual circumstances, the adjudicator may decide in his or her discretion that either a conference or an inspection or both is required before finalising a determination.
The need for a conference may arise for a number of reasons: for example, to clarify submissions, supporting material or calculations of either party, to elicit comments by either party on submissions, to decide if further submissions are needed or to establish whether there is a need to carry out an inspection.
If a conference is required, Adjudicate Today will notify both parties of the proposed conference date, time and location and the purpose of the conference to ensure that all parties are properly prepared. The adjudicator's ability to make a determination is not affected by failure of one or more parties to attend the conference or make submissions or comments. At a conference the adjudicator will normally sit at the head of the table with the parties or authorised agents (but not their consultants or witnesses) on different sides. The adjudicator will also:
- Introduce him/herself.
- State the purpose of the conference and indicate how long it should take.
- Explain the procedure of the conference. For instance, each party is to talk in turn as indicated and respond to queries raised by the adjudicator.
- Inform the parties that the adjudicator and the parties cannot raise during the conference any matter not permitted by the Act or outside the relevant construction contract, the adjudication application or the respondent's adjudication response.
- Explain that any comments made by the parties are to be limited to comments on the written submission already made by the parties.
- Confirm that each party is to be polite to the other and not interrupt while making relevant comments on submissions or responding from queries of the adjudicator. No questioning of one party by the other is allowed.
The adjudicator may ask relevant clarifying type questions referable to the payment schedule, respondent's response, written submissions or comments to elicit accurate information or to achieve a correct understanding. However, the adjudicator is not there to cross-examine either party. An adjudicator is also entitled to carry out an inspection of any matter to which the payment claim relates. An inspection will normally only be held where it is considered essential for a finding on a party's written submission. An inspection can include a site visit of the construction work or inspection of related services or goods provided, documents, reports, plans or papers, relating to the payment claim. The adjudicator will inform the claimant and respondent of what and when he/she intends to carry out an inspection. All the parties should be present at the inspection. Unless the parties and adjudicator agree to legal representation, only the parties themselves can make any comments at the inspection on written submission already provided to the adjudicator. Comments or submissions by others such as consultants or witnesses can't be sought or considered by the adjudicator.
Please move to the next step on the Victorian flowchart being "If any Adjudication Response includes reasons for withholding payment not included in Payment Schedule, Adjudicator must give Claimant 2 business days for further response".