Rules for Expert Determination (2003)

Business disputes can often be best resolved by the parties with the assistance of an independent third party. Expert Determination is a dispute resolution process which assists parties resolve disputes without the delay and expense of going to court or arbitration.

The parties enter into a binding agreement under which they agree to submit their dispute to a person with expertise in the area where the dispute has arisen (‘the Expert”) and agree to be bound by the decision of that Expert. The Expert is selected in accordance with these Rules from a panel of Experts provided by ACDC. The Expert then conducts the determination in accordance with the procedure set out in these Rules and the Expert Determination Appointment Agreement. The Expert then makes a determination which binds the parties.

If the parties to a dispute invoke these Rules they will be deemed to have agreed to be bound by the terms and conditions of these Rules and they shall fully co-operate to participate in the Expert Determination.

In the event that there is any conflict or inconsistency between the Expert Determination Appointment Agreement and these Rules:

(a) the Rules shall prevail if the conflict or inconsistency relates to any matter set out in clauses 5(a), 8 or 9 herein;

(b) otherwise the Expert Determination Appointment Agreement shall prevail.

For more information about Expert Determination or other ACDC dispute resolution procedures, please ring ACDC on (02) 9267 1000.

1. Notification of Parties to the Dispute

(a) If the parties to a dispute have invoked these Rules by referring the dispute to ACDC (either by consent of the parties, by way of an ACDC Expert Determination clause in the instrument of agreement or otherwise), the party (or parties) who alleges that a dispute has arisen which requires resolution by an Expert shall give written notice to the other party (or parties) setting out:

(i) the nature of the dispute that has arisen;

(ii) the areas of expertise it considers are required to resolve the dispute; and

(iii) a brief description of the project or circumstances of the dispute. (the “Notice of Dispute”).

(b) Within twenty-one (21) days of receipt of the Notice of Dispute, the other party (or parties) shall provide a written response stating its position in relation to the dispute, including:

(i) a statement of the areas of expertise it considers are required to resolve the dispute; and

(ii) any comments it has on the matters set out in (a)(iii). (the “Notice of Response”).

(c) Within fourteen (14) days of receipt of the Notice of Response the parties must take reasonable steps to confer and try to resolve the dispute.

(d) If the dispute is not resolved within fourteen (14) days or within such further period as the parties agree, then the parties, or any one of the parties, shall notify ACDC that the dispute has not resolved, that the dispute is to be referred to Expert Determination and each party shall pay half (or such other proportion as may be agreed by the parties and ACDC) of the ACDC registration fee set out in clause9.

2. Selecting an Expert

(a) Upon receiving the registration fee and a copy of the Notice of Dispute and the Notice of Response, ACDC will select two or more appropriately qualified experts, based on the material set out in the Notice of Dispute and Notice of Response, and provide the parties with details of each person’s qualifications and experience together with information concerning the fees charged by each person.

(b) Within seven (7) days of receiving the details and information concerning the fees, each party shall provide ACDC with a list setting out their order of preference in relation to the proposed Expert. If any party believes that a person whose details have been provided is unsuitable to act as the Expert for some reason (such as known by a party) they should notify ACDC accordingly.

(c) Upon receipt of the lists of preferences, ACDC will determine whether the parties, have identified a preferred Expert. If so, ACDC will appoint the preferred Expert.

(d) If the parties have failed to identify a preferred Expert and the parties have agreed to invoke another method of appointing the Expert, ACDC will follow that method.

If the parties have not specified any alternative method, or the alternative method does not result in the appointment of an Expert within a reasonable time, ACDC will, in its absolute discretion, appoint an Expert.

(e) Upon appointment of an Expert ACDC will provide the Expert with copies of the Notice of Dispute and the Notice of Response and request the Expert to advise ACDC of any conflict of interest or any reason for perception of bias in that person acting as the Expert responsible for resolving the dispute. If so advised ACDC will inform all the parties. If the parties still wish to continue with that Expert they must provide ACDC with a statement, in writing, that they are aware of the conflict of interest or facts that may give rise to a perception of bias but wish to proceed with the appointment of that Expert (see also clause 3). If the parties do not wish to continue with that Expert ACDC will, in its discretion, appoint another Expert.

3. Neutrality of Expert

(a) The Expert is independent and impartial and has no vested interest in the outcome of the Expert Determination.

(b) If the Expert becomes aware at any stage of any circumstance that might reasonably be considered to adversely affect the Expert’s capacity to act independently or impartially, the Expert must inform the parties immediately. The Expert must in such circumstances terminate the Expert Determination, unless the parties agree otherwise.

4. Expert Determination Appointment Agreement

Within fourteen (14) days of ACDC notifying the parties of the appointment of the Expert the parties and the Expert will execute the Expert Determination Appointment Agreement in the form of the Agreement contained in Schedule 1 to these Rules or as amended in writing and signed by the parties and the Expert. The Expert Determination Appointment Agreement shall be incorporated into, and form part of, these Rules.

5. Actions prior to Commencement of the Expert Determination

(a) Within seven (7) days of ACDC notifying the parties of the appointment of the Expert ACDC shall provide the parties with an estimate of the fees and disbursements in the Expert Determination. Unless otherwise agreed by the parties, the Expert and ACDC, within fourteen (14) days of receiving the estimate, and in any case prior to commencement of the Expert Determination, the parties shall provide ACDC with a security deposit in the amount of the estimate. The security deposit may be utilised in accordance with clause 9 of these Rules.

(b) The Expert may, if the Expert so desires, arrange a joint meeting or meetings with the parties. The meeting is not a hearing.

(c) The Expert may shall not meet separately with the parties to discuss the dispute, unless both parties agree that separate meetings can occur.

(d) The parties agree to comply with any procedural directions the Expert may give in the preparation for or in the course of the meeting.

6. Representation and Attendance

(a) Each party is entitled to be represented at any meeting and the Expert Determination by its legal representative and other persons with information or knowledge relevant to the Expert Determination.

(b) Unless the parties and ACDC otherwise agree, each party shall give ACDC, the Expert and the other party at least seven (7) days notice of who will be attending any meeting on its behalf.

7. Confidentiality

Confidential information disclosed to the Experts by the parties or by others attending in the course of the Expert Determination shall not be divulged by the Expert, unless authorised in writing by both parties. The Expert shall not be compelled to divulge records, reports or other documents (electronic or otherwise) received by him or her while serving in that capacity, or testify in regard to the Expert Determination in any adversarial proceeding, judicial forum or body.

8. Liability

Except in the case of fraud:

(a) the parties release ACDC, its officers, employees and agents and the Expert from any liability of any kind whatsoever arising out of or in connection with the Expert’s appointment or the Expert Determination.

(b) the parties jointly and severally indemnify, and will keep indemnified, ACDC its officers, employees and agents from and against any claim for negligence or breach of any trade practices or fair trading legislation which may arise in connection with or resulting from the Expert's appointment or any act or omission arising out of or in connection with the Expert Determination. The indemnity is expressly given for the benefit of the parties indicated and may be enforced by them individually if necessary.

This document may be produced and relied upon as a complete defence to any such claim.

9. Fees

(a) The parties agree to that they are equally responsible for the costs of the Expert Determination including room hire, ACDC's non-refundable registration fee of $550.00 (incl. GST) (covering the first 3 hours of administration), any further administration fees due to ACDC at the rate of $165.00 (incl. GST) per hour (after the first 3 hours covered by the registration fee), and the Expert’s fee (of which 10% is payable to ACDC), and any other disbursements.

(b) The parties shall forward to ACDC their half share or other such proportion of the security deposit as required by these Rules.

(c) Each party shall bear its own costs of the Expert Determination.

(d) The Expert and ACDC may submit progressive invoices to the parties which can be drawn down against the security deposit.

(e) In the event that the security deposit is insufficient to cover the anticipated fees and disbursements of the Expert or ACDC the parties agree to submit such further security deposit as may be reasonably requested by ACDC or the Expert.

(f) If the further security deposit is not received by ACDC within seven (7) days of the request by ACDC or the Expert, or such shorter period as ACDC or the Expert reasonably requires, the Expert and ACDC may suspend provision of their services in the Expert Determination until such time as the further security deposit is received.

(g) In the event that the Expert Determination is suspended in accordance with the above clause the parties agree that neither ACDC, its officers, employees or agents nor the Expert shall have any liability whatsoever to the parties or any other person and the parties will indemnify ACDC, its officers, employees, servants and agents and the Expert from and against any such claim by any person. This document may be produced and relied upon as a complete defence to any such claim.