Onslow appealed the initial decision of the Federal Court. On 2 August 2018, the full bench of the Federal Court affirmed the initial judgment and held that the primary judge was correct to refuse the grant of stay of proceedings. The Court ordered that the appellant pay the respondent’s costs. The following sections examine the relevant principles that the Federal Court considered in refusing the grant of stay of proceedings in Onslow v BTAC.
III Discretionary Power of Court to Grant a Stay of Proceedings
It is a well-settled legal principle that the power of the court to grant a stay of proceedings is discretionary and will only be granted if good reasons are shown.11 The onus of showing good reason rests with the party opposing the stay of proceedings – in this case BTAC.
Generally, a stay of proceedings will be refused if it would be unjust to deprive a party to a dispute of their right to have the matter judicially heard by a court.12 Although each case should be determined on its own facts and circumstances, some examples of the circumstances where the court may refuse to grant a stay of proceedings include:13
• the agreed dispute resolution process would deal with only part of the dispute; • there would be duplication of effort if the agreed process was to be followed in the particular case; • the refusal of a stay would result in a multiplicity of proceedings; • in the case of an expert determination, the dispute is inapt for determination by an expert because it does not involve the application of specialist knowledge to matters to be observed or investigated by the expert or is outside the expert's field of expertise; and • the agreed procedures are inappropriate or inadequate for the nature of the dispute.
In the earlier authority of Dance with Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332, Hammerschlag J held that the court will hold the parties to their bargain of using a resolution clause unless the party opposing the stay of proceeding can show strong reasons against doing so.14 Furthermore, the court will not lightly refuse to grant a stay of proceedings where the dispute resolution clause relied upon is enforceable on the parties to a dispute.15 This principle imposes an onus on the party opposing the stay to establish that exceptional circumstances exist for not using the dispute resolution clause procedures.16
Ordinarily, a stay of proceedings will be refused if it would be 'unjust to deprive a party of its right to have its claim determined judicially'.17 Such onus can only be discharged by showing that the agreed dispute resolution mechanism did not apply in their particular case.18
IV Examination of the General Principles from Onslow v BTAC
A Scope of the Onslow Dispute Resolution Clause
Both parties agreed at the initial hearing of the stay application, that BTAC had failed to refer the dispute to an expert in a manner required under the dispute resolution clause of the Deed. The BTAC argued that there was no requirement to do so in these exceptional circumstances, as it would not be possible on a realistic assessment, for an expert to resolve the issues within this particular dispute.
The dispute resolution clause of the Deed provides that where there is a dispute, parties shall refer the 'disputed question or difference…to an independent expert'.19 The dispute resolution clause further outlines the obligations of the selected independent expert to carry out their functions to