1. Birdon Pty Ltd v Houben Marine Pty Ltd1

Constitutional law—infringement of the admiralty jurisdiction of the Federal Court of Australia—interlocutory injunction to restrain adjudication proceedings

The plaintiff chartered a back hoe dredge from the defendant. A dispute arose between the parties about payment of hire. The plaintiff instituted proceedings in the Federal Court of Australia seeking a declaration that it had no further obligation to pay hire to the defendant, and seeking repayment of hire payments previously made by reason of the defendant’s misleading and deceptive conduct relating to the dredge. The defendant claimed that it had a statutory right to progress payments from the plaintiff under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the “Security of Payment Act”) because the back hoe dredge had been used in a construction project and, thus, that the charterparty was a “construction contract” as defined in that Act. The defendant commenced adjudication proceedings pursuant to the Security of Payment Act. The plaintiff contended that the case gave rise to a matter involving the Australian Constitution because the adjudication proceedings under the Security of Payment Act impinged on the Admiralty jurisdiction of the Federal Court of Australia. The judge at first instance, Rares J, granted an interim injunction to restrain the adjudication proceedings and stated a special case for a Full Court of the Federal Court of Australia.