Dismissal of Parties’ Rejoinder – A Breach of Natural Justice?

Parties are given the right to present their case in the course of proceedings of Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) vide Adjudication Claim, Adjudication Response, and Adjudication Reply by parties. (See: Sections 9, 10 and 11 in CIPAA).

However, it is not unheard of for parties to be submitting Rejoinder in the course of their proceedings to add further evidence or clarification.

Is it then a breach of natural justice when an Adjudicator dismiss parties’ application for a Rejoinder? 

The case of MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd & Another Case [2020] 1 LNS 145 (“MRCB Builders”) says no. It was held that CIPAA does not provide for a Respondent the entitlement to file a Rejoinder. 

The reasoning is simple.

Section 12(2) of CIPAA obliged an adjudicator to deliver a decision within 45 working days from the service of an Adjudication Response or Adjudication Reply, whichever is later. Any subsequent filing may cause the Adjudicator to fail to deliver an adjudication decision within the stipulated period.

The consequence is severe. Any non-compliance with Section 12(2)(a) of CIPAA will render the adjudication decision as void.

Availability of Forum for Parties 

It must be noted that even if a respondent in an adjudication suffers from any prejudice due to inadmissibility of a Rejoinder, any prejudice could be remedied in a subsequent arbitration and litigation. (See: Econpile (M) Sdn Bhd v. IRDK Ventures Sdn Bhd & Another Case [2016] 5 CLJ 882). 

Breach of Natural Justice by Adjudicator

Therefore, had the Adjudicator breached the principle of natural justice where the Adjudicator had dismissed the application for Rejoinder? 

The case of MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd & Another Case said no. Parties had had ample amount of time to tender evidence during the course of the adjudication proceedings. As long as the Adjudicator had considered all the defences advanced by parties in the Adjudication, there could be no breach of justice in such circumstances (See: ACFM Engineering & Construction Sdn Bhd v. Esstar Vision Sdn Bhd & another appeal [2016] 1 LNS 1522; [2016] MLJU 1776). 

Therefore, so long as the adjudicator complies with Section 12(2)(a) of CIPAA and exercises their discretion to refuse an application to file a Rejoinder, this does not in itself amount to a breach of natural justice.