WA: Respondent Prepares & Serves the Adjudication Response

This section provides guidance for the respondent in completing an adjudication response to an adjudication application.

Time frames

There are strict time limits for the submission of responses. As the adjudication process is intended to deal with payment disputes as quickly and inexpensively as possible, the respondent has only 10 business days after being served with the application to prepare and serve a response. A business day means any day other than a Saturday, Sunday, public holiday or day between 25 December and 7 January inclusive.

Neither Adjudicate Today nor the adjudicator may extend these time frames which are specified by the Act. An adjudicator can't consider an adjudication response which is received late. Some parties submit further submissions to the adjudicator which are outside the time frame of the Act and were not requested by the adjudicator. Most adjudicators will not consider these submissions. However if the adjudicator is prepared to consider the submission, the other party must be given time in which to make a response. Generally this is most difficult within the 10 business days allowed to the adjudicator, unless both parties agree to an extension of time.

We suggest you now download the Adjudicate Today template which assists in preparing the adjudication response.

Click here to download the adjudication response template form.

If you follow each step of our template response form the following information, which is required by the Act, will be covered. However, please be careful to also include any additional information required by the contract.

• The name address, ABN (and, if known, ACN), telephone, fax number and email of the adjudicator, applicant and respondent;
• The Adjudicate Today details (as the PA) are already completed on the form;
• Identify the adjudication application to which the response relates (include the Adjudicate Today reference number);
• Identify the amount of payment (if any) that it is proposed paid (it may be "nil");
• Be signed by the respondent.

To determine an adjudication application, the adjudicator commences by deciding whether they have jurisdiction to proceed. They next consider specific information and any other information you choose to provide in order to determine the payment dispute.

An adjudicator commences by addressing these questions. Whether:

• the contract between the applicant and respondent is a construction contract for the purposes of section 3 of the Act. A copy of the Act may be downloaded by clicking here;
• a valid payment claim has been made under a construction contract;
• a payment dispute arose under a construction contract;
• an application has been prepared and served in accordance with section 26(1), (2)(b) and (c) of the Act;
• there should be no prior decision on the identical payment dispute by an adjudicator, court, arbitrator or other body; and
• the payment dispute is not too complex to fairly determine within the time available or any extension of time agreed by the parties.

If the respondent considers the adjudicator does not have jurisdiction to proceed on the basis of any of the above issues, the response should provide the reasons why.

Next the adjudication response should contain all information, documentation and submissions which will be relied upon in the adjudication, including:

• elaborate reasons for refusing to pay or withholding payment of any amount. Documents necessary to evidence or support those reasons should be attached. These may include expert reports and photographs evidencing defective work and statements from witnesses etc. Reasons may include that the respondent has a right under the contract to set-off against the amount claimed;
• directly respond to each issue raised in the adjudication application.

Submissions are essentially arguments in support of the respondent's case. They may include legal arguments, arguments on the interpretation of the contract or other documents. Documents that are submitted usually don't speak for themselves. The submission should explain why a document has been submitted. Don't assume that the reason for submitting a document will be obvious. The adjudicator cannot simply accept that something said by the respondent in a letter or minutes of a meeting or other document is true. In the submission the respondent should state that it is true. If the respondent fails to do so, the adjudicator might draw the inference that the respondent is not prepared to assert the statement is true.

The overall submission should be concise, clearly written and set out the respondent's arguments and reasons. Remember the submission should always link back to any agreement/documentation, photos, technical/legal reports which support the respondent's reasons set out in the payment claim.

Statutory declarations are not necessary. Because an adjudicator can't test the contents of a statutory declaration, they are given no greater weight than uwaorn witness statements.

How is an adjudication application served?

Both Adjudicate Today (on behalf of the adjudicator) and the applicant should be served with identical adjudication responses, if possible, on the same day.

Adjudicate Today accepts electronic, physical and/or fax service. Service can be effected by any of the following methods:

• Electronic File Delivery via Lockbox. You can send very large electronic files directly to Adjudicate Today. All files are encrypted and sent over a secure connection. They are held in your personal 'Lockbox'. Only you and Adjudicate Today authorised staff can access your Lockbox. We strongly recommend it over email as email may not be received. All uploaded files are acknowledged by an automated email within a couple of minutes. If no email is received, there is an error in the uploading and you need to upload again. Please read our disclaimer for details on rights and obligations for the delivery of electronic files.
  Click here for details on establishing a free Lockbox account
• Physical Delivery including courier, in person, post or fax. We accept delivery in any of our Australian offices (normal business hours). Addresses are found on our Contact Us page.
• Email. wa@adjudicate.com.au or help@adjudicate.com.au
• Fax. 1300 760 220

Physical service on the applicant should occur during normal business hours, at the applicant's head office or as otherwise required by the contract. In the absence of a contrary contract provision, the safest way of ensuring service is to serve by courier with instruction to obtain a signed receipt. In our experience, below is the safest ranking to ensure service on the applicant.

1. Courier - signature required;
2. Mail - Express Post: keep express post tracking number for delivery verification;
3. Platinum Post - Signature required;
4. Ordinary Post - Make a statement verifying the address, date of postage and other relevant details;
5. Email (only to an email address which is specified by the person for the services of documents of that kind). In email options, we advise tick both "request a delivery receipt" and "request a read receipt";
6. Fax - Print and keep full page fax journal report as evidence of transmittal. Do not use fax for colour photographs and plans as they are generally rendered unreadable. Lengthy faxes have been known to lose pages in transmission;
7. In person - Ensure a receipt is obtained; or
8. A different method only where such method is provided under the relevant construction contract.

At the same time, the respondent should be served in accordance with any contract provision or served in accordance with the Act.

Tips:

• Respondents are strongly advised to keep a record of the time, date and manner of service on the applicant. An applicant may deny receiving an adjudication response in which case the respondent must be able to evidence the date of service.
• When items are sent by ordinary post, allow sufficient time for them to be received. Generally, items sent by ordinary post are deemed to be received on the fourth working day after posting. We recommend against post as applicants have denied receipt.
• Should fax be permitted by contract as a form of service, ensure you retain the full page fax receipt and refrain from sending colour photographs, and plans as they are generally rendered unreadable. Lengthy faxes have been known to lose pages in transmission.

Please move to the next step on the WA flowchart being "Adjudication Determination. The Adjudicator has 10 business days to determine or dismiss the Adjudication Application from the date of receipt of the Adjudication Response or the last date the Response would have been due if the Response had been served. Time may be extended by agreement of both parties".