When will an adjudicator's undisclosed communication with one party prevent enforcement?
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.
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.
| Issue | Position |
|---|---|
| Administrative scheduling contact | Ordinarily low risk if immaterial |
| Submission on jurisdiction or merits | Disclose and invite response |
| Independent enquiry | Disclose material result |
| Separate mediation communication | High confidentiality and bias risk |
| Material unfairness or apparent bias | Decision may not be enforced |
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