B Involvement of the State of Western Australia in the Proceedings
An exceptional characteristic of Onslow v BTAC is the involvement of the State of Western Australia as a second respondent in the proceedings. The nature of relief sought includes a claim to public law relief. Moreover, there is a wider public interest for this dispute to be dealt with in the courts rather than within the private confines of the parties utilising an independent expert under a dispute resolution clause of a Deed, to which the State is not a party.27 The Full Court of the Federal Court in Onslow v BTAC emphasised in their decision, that the agreements of the parties to use an alternative dispute resolution method cannot oust the jurisdiction of the courts.28 Where there are wider public interests beyond those of the parties in dispute, it may be a significant factor to refuse a grant of stay.
C Binding Nature of the Agreed Mechanism
An independent expert has a duty to deliver their decision based on the prescribed protocol (dispute resolution clause) of the agreement.29 Depending upon the dispute resolution clause protocol in an agreement, the decision may be binding or non-binding upon the parties to the dispute. In Onslow v DTAC, the court found that it was relevant to consider whether the dispute resolution clause would produce a binding or non-binding outcome on the parties in dispute in exercising the court's discretion to grant a stay of proceedings.30
In Onslow v BTAC, the independent expert's decision on a disputed matter that has been referred under the dispute resolution clause was considered to be nothing more than an advisory opinion. Consequently, Onslow and BTAC are not contractually bound by the outcome of an independent expert's opinion.31 On this basis, the court found that the 'nonbinding' nature of the dispute resolution clause added further weight to the argument behind utilizing judicial discretion as to whether to grant a stay or not.
The scope for challenging an independent expert's decision is usually limited to circumstances where the expert failed to follow technical procedures, where there may have been an undisclosed conflict of interest, or where the expert may have exercised collusion, partiality or may have been guilty of fraud. The NSW Court of Appeal in Australian Vintage Limited v Belvino Investments No 2 Pty Ltd confirmed that an expert determination conducted under a contract can be subject to review if the expert does not carry out the task that the expert was contractually bound to carry out.32 This is the case even if the contract states that the determination is final and binding.33
End Notes
* Associate and Law Graduate 1 Buurabalayji Thalanyi Aboriginal Corporation v Onslow Salt Pty Ltd [2017] FCA 1240. 2 LexisNexis Butterworths, Dispute Resolution LexisNexis Custom Publication for Murdoch University, (LexisNexis Butterworths, 2016) 87. 3 Brian C. Willis, ‘Resolving Disputes by Expert Determination: What Happens When Parties Select Appraisers, Accountants, or Other Technical Experts to Decide Disputes’ (2017) 7 Florida Bar Journal. 4 Buurabalayji Thalanyi Aboriginal Corporation v Onslow Salt Pty Ltd [2017] FCA 1240 [6]. 5 Onslow Salt Pty Ltd v Buurabalayji Thalanyji Aboriginal Corporation [2018] FCAFC 118 [2]. 6 Ibid [3]. 7 Ibid [4-5]. 8 Dance With Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332 [54]; Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563; Raskin v Mediterranean Olives Estate Ltd [2017] VSC 94. 9 Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563 [10]-[15]. 10 Buurabalayji Thalanyi Aboriginal Corporation v Onslow Salt Pty Ltd [2017] FCA 1240 [81]. 11 Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563 [10]-[15]. 12 Onslow Salt Pty Ltd v Buurabalyji Thalanyji Aboriginal Corporation [2018] FCA 1240 [15].