McMullan Solicitors

Firedam Civil Engineering Pty Ltd v Shoalhaven City Council [2010] NSWCA 59 (19 April 2010)

Wed, 24 Nov 2010 10:20:46 +2200

In this case (for which leave has been given to appeal to the High Court), the NSW Court of Appeal made a declaration that an expert determination was not binding on the parties. MacFarlan J, in the principal judgment, reasoned that, there being an inconsistency in the reasoning of the expert, in making the determination he had made, and determining that the Principal had, in making variations, delayed completion, thereby entitling the Contractor to an extension of time, yet failing to give the Contractor delay costs: “the Contractor can fairly say, as it does, that it has not been told by the Expert why it is not entitled to delay costs”. Macfarlan J concluded that, the expert, in failing to give reasons, had gone outside the expert determination agreement, accordingly: “A departure from the Contract having been demonstrated by the Contractor, the whole of the Expert Determination must therefore be regarded as being outside the contemplation of the Contract. The Contractor is thus entitled to a declaration that the Expert Determination is not binding upon the parties to these proceedings.”

Camillo Concrete Structures Pty Ltd v Baulderstone Pty Ltd (Domestic Building) [2010] VCAT 285

Mon, 12 Jul 2010 13:02:23 +2200

1144 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd [2009] VSCA 308

Mon, 12 Jul 2010 12:59:47 +2200

Is an expert under a duty to accord procedural fairness?

Tue, 25 May 2010 17:22:48 +2200

In John Nelson Developments Pty Limited v Focus National Developments Pty Limited [2010] NSWSC 150 (5 March 2010) , the Supreme Court of New South Wales determined that no duty of procedural fairness was owed to the Respondent, because the Expert gave opinion on issues and did not act as quasi-judicial officer. The Court found that, in the absence of anything to the contrary in the parties' agreement, an expert can inform himself or herself as he or she thinks fit. In this case, the procedural requirements for the determination were a matter for the Expert to determine, because the joint venture agreement in question was silent as to the dispute resolution procedure to be adopted.

In what circumstances is an expert determination subject to review?

Tue, 25 May 2010 14:19:29 +2200

In Firedam Civil Engineering Pty Ltd v Shoalhaven City Council [2010] NSWCA 59 (19 April 2010) , the New South Wales South Court of Appeal found that an expert determination was not binding upon the parties because the Expert made inconsistent findings of fact and did not give adequate reasons for his determination.

Although not necessary to consider whether the Expert was required to give reasons to the standard with which those exercising a judicial function must comply, the Court reflected upon what standard of reasons are required to be provided by an arbitrator. Even assuming that the standard was a lesser one, experts who are required to give reasons “should explain succinctly why, in light of what happened, they reached their decision and what the decision is (Bremer Handelsgellshcaft mbH v Westzucker GmbH ( No2) [1981] 2 Lloyd’s Rep 130 at 132-3 referring to the obligations of arbitrators: compare Oil Basins Ltd v BHP Billiton Ltd [2007]VSCA 255;(2007) 18VR 346 and Gordian Runoff Limited v Westport Insurance Corporation [2010] NSWCA 57). This standard is not complied with if the ultimate basis for a decision cannot be discerned because of inconsistency of reasons or findings.”

On this basis, the Court concluded that the contractual requirement that the Expert give reasons for his decision was not satisfied.

In a separate judgment, Campbell JA also cautioned against drawing analogies between arbitration and expert determination.

Expert Determination

Wed, 30 Sep 2009 09:51:39 +2200

expert-determination.pdf

Expert Determination - Selected Case Law

Thu, 24 Sep 2009 14:06:12 +2200

case-law-090930.pdf

IAMA Expert Determination Rules

Thu, 24 Sep 2009 13:06:34 +2200

expert-determination-rules-090930.pdf

Expert Witnesses: Who Plays the Saxaphones?

Thu, 24 Sep 2009 13:03:33 +2200

expert-witnesses-who-plays-the-saxaphone.pdf

Justice McHugh's article

Thu, 24 Sep 2009 12:55:32 +2200

The Hon Michael McHugh AC, “Expert Determination”, paper delivered to the Chartered Institute of Arbitrators (Australia) Ltd, 30 April 2007; (2008) 74 Arbitration: the Journal of the Chartered Institute of Arbitrators 2, 148-162.

expert-determination-mchugh-april-2007.pdf,1254266255_mchugh-2008.pdf

Expert Determination Agreement

Thu, 24 Sep 2009 12:52:12 +2200

expert-determination-agreement.pdf