Breach of principle of "natural justice" is one of the few grounds available for a party to rely on in seeking an order declaring that an adjudication determination is void. We shall briefly look into how the concept of natural justice operates in the context of the security of payment legislation.

The notion of "natural justice", sometimes also known as "procedural fairness", is a legal principle that requires a decision-maker (in our case, the adjudicator) to provide a minimum level of fairness when an individual’s rights are affected in a broad range of factual scenarios. It requires decision-makers to:

1. inform people of the case against them or their interests
2. give them a right to be heard
3. not have a personal interest in the outcome; and
4. act only on the basis of logically probative evidence

However in the adjudication context, there are limited grounds on which a party may seek relief for denial of natural justice. A judge will examine the nature of the breach and its practical consequence on the parties on a case by case basis.

Perhaps sometimes the Judge must exercise a balancing exercise. On one hand a determination is made under a "pressure cooker" situation (short time but voluminous material) which requires the adjudicator to avoid formality, while on the other there is a need for formality because "justice must be seen to be done".

This has given rise to the concept of "materiality". It has been found in a number of decisions that, under the security of payment legislation, a denial of natural justice will only invalidate a determination if that denial is material or germane to the outcome of the decision. Hence, if the ultimate decision would have stayed the same irrespective of whether the principle of natural justice had been observed, the Court is unlikely to quash a determination because the breach has not bearing on the outcome (i.e. not material to the outcome).

Therefore, if an adjudicator makes his determination without having regard to a particular submission duly made by the builder for example (thus a potential denial of natural justice due to sec 22(2)(d), the determination would unlikely to be declared void unless it can be shown that had the particular submission been considered by the adjudicator, there is a real prospect for a different decision (which probably needs to be more favourable to the builder).