Undisclosed communications between an adjudicator and one party

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Legal and contractual solutions · Adjudication

When will an adjudicator's undisclosed communication with one party prevent enforcement?

Material submissions, equal participation and apparent bias

A unilateral communication does not invalidate a decision merely because it occurred. Enforcement risk arises where the communication concerns a material issue and the other party was not told what was said or given a fair opportunity to respond.

Quick answer

Material private communications can breach natural justice and create a real possibility of apparent bias

An adjudicator should copy both parties into substantive communications and disclose any material information received separately. If one party makes submissions about jurisdiction, payment entitlement, evidence or another issue capable of affecting the result, the adjudicator should provide the substance to the other party and allow a proportionate response. The court will examine materiality, fairness and the appearance of bias in context. Administrative contact or an immaterial irregularity will not necessarily defeat enforcement, but undisclosed substantive discussions create avoidable risk.

IssuePosition
Administrative scheduling contactOrdinarily low risk if immaterial
Submission on jurisdiction or meritsDisclose and invite response
Independent enquiryDisclose material result
Separate mediation communicationHigh confidentiality and bias risk
Material unfairness or apparent biasDecision may not be enforced

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