In February 2011, the High Court in Australia heard the case of Shoalhaven City Council v Firedam Civil Engineering Pty Limited [2011], an appeal from the NSW Supreme Court of Appeal decision in Firedam v Shoalhaven . It is an ex-parte matter before the High Court as the respondent is in liquidation. It is interesting to note the applicant propounds Nettle’s reasoning from AGL Victoria v SPI Networks [2006] VSCA 173 and submits the NSW Court of Appeal erroneously departed from the position enunciated in AGL Victoria: [38].
We are still awaiting judgement in this case. In my opinion, if the High Court consider the NSW Court of Appeal’s remarkable failure to consider let alone cite the precedent from AGL Victoria v SPI and apply, what I refer to as, “Nettle’s Error Test” from that case, then it is likely to allow the appeal.
The question for the High Court to consider is whether the expert determiner’s determination should have been set aside on the basis his reasoning was inconsistent in regards to the disputants competing entitlements to damages for variation/delay. Was the error made of an objective fact or was it made whilst exercising his discretionary judgment? In short, I believe it is the latter and I predict the High Court will allow the appeal.
I have written an article about “Nettle’s Error Test” which will be published in the ADRJ in November 2011. I’ll be interested to know your considered thoughts?
