The efficacy of using independent experts in dispute resolution clauses – Are they practical for complex disputes?

In the recent decision of Onslow Salt Pty Ltd v Buurabalayji Thalanyji Aboriginal Corporation [2018] FCAFC 118 (‘Onslow v BTAC’) the full bench of the Federal Court dismissed an appeal regarding the Federal Court’s first instance decision refusing to stay proceedings in the matter.1 The primary judge refused to stay proceedings despite the plaintiff not following the requirements of a dispute resolution clause included in a Deed that specified the use of an independent expert to resolve disputes between the parties. Although it is a well established principle that parties should be held to their agreed dispute resolution procedures, this decision highlights the exceptional circumstances where a court may refuse a stay and depart from the commercial bargain struck between the parties to an agreement.

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