'act as an expert and not as an arbitrator…and express in writing an opinion on the matter in dispute'.20 The dispute resolution clause also provides that 'no party shall be entitled to commence or maintain any action or proceedings until that dispute decision or difference has been referred to and considered in accordance with this clause’.21
In the initial decision, McKerracher J acknowledged that the dispute between Onslow and BTAC involved 'extremely complex factual matters raised in a lengthy pleading’ where BTAC sought a variety of relief.22 The relief sought included:
• damages against Onslow for intentional interference with native title rights and economic interests held by BTAC, misleading and deceptive conduct, and breach of contract; • damages against Onslow and the State under the tort of conspiracy; • damages against the State for negligence, breach of its duty of care, and breach of statutory duty; • a declaration that the purported approval of the Minister is void and of no effect at law; • a declaration that in causing the fill to be removed from the salt mining area, Onslow acted without any valid authorisation or permission; and • interest as a component of such damages or in terms of s 51A of the Federal Court of Australia Act 1976 (Cth).23
Having regard to the extensiveness of the matters raised in BTAC's pleadings, McKerracher J established that an expert would not be able to resolve the complex issues in these circumstances. Furthermore, the disputed matters involved a third party (the State of Western Australia) who was brought into proceedings on claims outside the scope of the Deed.24 In making his decision, McKerracher J noted that his decision was not based on a deficiency of the dispute resolution clause, but rather the dispute resolution clause was more appropriate for simpler and more specific issues arising under the Deed.25 The dispute resolution clause was 'meant to provide a quick possible resolution to problems arising under the tasks identified in the Deed'.26 The nature of the matter in Onslow v BTAC fell outside the scope of a dispute resolution clause independent expert clause due its complexity and into the exceptional category of matters.